Remarks for Opening of Lawyers Without Rights Exhibit
Chief Justice Mark Martin
March 7, 2016
UNC School of Law, Chapel Hill, NC
Good evening. It is always a good day to be in Chapel Hill, and what an honor it is to
be here tonight for the launch of this important exhibit. I want to thank my friend, Dean
Martin Brinkley, for his hospitality. I would also like to thank the American Bar Association,
and Bill Choyke specifically, for helping to bring this exhibit from Germany to the United
States. Finally, I would like to thank Professor Eric Muller for spearheading this exhibit.
Many of you may not be aware of the extent of Professor Muller’s leadership in efforts to
connect the lessons learned from Nazi Germany and World War II to the present. He is a
leading scholar on the internment of Asian-American citizens during World War II and has
provided formative leadership to efforts such as the Fellowships at Auschwitz for the Study
of Professional Ethics. So thank you, Professor Muller, for your leadership and for asking me
to be here with you tonight.
When we hear the word “Nazi,” we think about a tragic era confined to history. We
think about an episode with lessons to teach, but only to other parts of the world; places
where overt prejudices and extreme ideologies suggest a greater likelihood of oppression,
violence, or genocide. Of course, we have issues here too, but we do not really believe that
something like the Holocaust could ever happen in twenty-first century America. We,
therefore, relegate the Third Reich to the margins—a horrendous story from history with
little direct relevance to us today.
We often forget that the Nazi Party was voted into power by democratic means in a
society with which we share many social, political, historical, religious, and even
philosophical attributes. Germany in the 1920’s and 1930’s had a robust civil society,
advances in technology and medicine, and a strong, historic academic system. Indeed, the
Nazis assumed power less than 100 years ago, and there are many people who experienced
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the Third Reich firsthand who are still alive today. If we are honest with ourselves, we know
that the Third Reich, and all of its atrocities, existed in a place not far from here, at a time
not long ago, in a culture not that different from our own.
Perhaps most relevant for our purposes, here in an institution devoted to the study of
law, is the fact that Germany in the 1920’s and early 1930’s was a place governed by the rule
of law. Germany had an established legal profession and a judiciary renowned for its
independence.1 Tragically, that was not to last. So tonight, as we launch this exhibit here
at UNC Law, I want to spend a few moments reflecting on the importance of the rule of law,
and the continuing relevance of the bitter history of the Third Reich to us today.
The rule of law is fundamental to our way of life in the United States. It is so
fundamental a concept that we can often appeal to it without much thought of what is meant
by it. So what is meant by the term? The phrase that is, perhaps, most commonly associated
with the rule of law defines it by what it is not, namely, “the rule of law, not the rule of men.”
It is a concept dating back to Aristotle, who rebutted Plato’s argument for philosopher kings
by arguing that, in an imperfect world with imperfect people, justice could “only exist between
those whose mutual relations are regulated by law.”2 It is the concept embodied by Magna
Carta, the 800th Anniversary of which we celebrated just last year, and reinforced by
President Theodore Roosevelt, who stated, “No man is above the law and no man below it.”3
It is the idea that all people, including those in political power, are subject to the same law—
that the same facts result in the same outcome, regardless of who you are.
But what does the rule of law mean in practice? First, that the law governing a society
is objective, neutral, and universally applicable. 4 Second, that the law can be known,
understood, and followed by the people it governs.5 And finally, that the law is fully and
fairly enforced by open, accessible, and impartial tribunals—in other words, by an
independent judiciary.6 And what do we see in societies characterized by these attributes?
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John W. Brabner-Smith, Hitler Hated Lawyers: A Story of Resistance to Tyranny, 43 A.B.A. J.
1105, 1105-06 (Dec. 1957).
JOHN KELLY, A SHORT HISTORY OF WESTERN LEGAL Theory 9 (1992); THE NICOMACHEAN ETHICS OF
ARISTOTLE para. 97, at 162 (Robert Williams trans., 1869); History and Importance of the Rule of
Law, A.B.A. TASK FORCE ON ASSOCIATION GOAL VIII, at 6,
http://worldjusticeproject.org/sites/default/files/history_and_importance_of_the_rule_of_law.pdf.
President Theodore Roosevelt, Third Annual Message to Congress delivered to the Senate and
House of Representatives (Dec. 7, 1903), http://www.presidency.ucsb.edu/ws/index.php?pid=29544.
Rule of Law Index 2015, WORLD JUSTICE PROJECT 10,
http://worldjusticeproject.org/sites/default/files/roli_2015_0.pdf.
Id.; see also The Federalist No. 62 (James Madison) (“It will be of little avail to the people that the
laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or
so incoherent that they cannot be understood.”).
See TASK FORCE ON ASSOCIATION GOAL VIII WHITE PAPER, supra note 2, at 1-3; WORLD JUSTICE
PROJECT, supra note 4, at 10; see also Marbury v. Madison, 5 U.S. 137 (1803); The Federalist No.
78 (Alexander Hamilton).
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Generally speaking, we see vibrant economies, the promotion and protection of human rights,
and stable and long-lasting democracies.7 In other words, we see humanity flourishing.
So what about the opposite? What about when the rule of law is not honored and
respected? United States Supreme Court Justice Stephen Breyer likes to share the story of
two Supreme Court cases to highlight the importance of the rule of law. 8 He begins by
discussing Worcester v. Georgia, an 1832 case where the Supreme Court held that Georgia’s
statutes appropriating Cherokee territory were unconstitutional.9 Sympathetic to Georgia,
President Andrew Jackson refused to support the Supreme Court’s ruling and ordered federal
troops into the state to facilitate Georgia’s aims. 10 In defying the rule of law, President
Jackson set in motion actions that would eventually lead to the Trail of Tears, in which onethird of the Cherokees died on their journey west to Oklahoma. Justice Breyer then tells of
the case of Cooper v. Aaron, by which the State of Arkansas defied the Supreme Court’s
decision in Brown v. Board of Education to integrate the public schools. 11 In response,
President Dwight Eisenhower sent in federal troops, but this time to enforce the rule of law,
not subvert it. Justice Breyer makes the point that whereas President Jackson’s violation of
the rule of law led to death and human suffering, Eisenhower’s respect for it led to the
preservation of civil rights and indeed human progress.12
As President Eisenhower himself stated, “the clearest way to show what the rule of
law means to us in everyday life is to recall what has happened when there is no rule of
law.”13 The rise of the Third Reich is certainly one such example. But as we reflect on this
exhibit tonight, I do not want to reflect merely on the lack of the rule law in Nazi Germany.
One of the most important aspects to consider about the rise of the Third Reich is that it did
not occur in the absence of the rule of law. Rather, the rise of the Third Reich brought about
a collapse of the rule of law in Germany. Indeed, the rise of the Third Reich is one of the most
rapid and spectacular collapses of the rule of law in recent history. Perhaps more sobering
still is the fact that lawyers, professionals trained to revere the rule of law, played a
significant role in this process.
When we think about the Holocaust, certain names quickly come to mind. Hermann
Goring. Heinrich Himmler. Joseph Goebbels. Adolf Eichmann. And, of course, Adolf Hitler.
But we do not often think about the people who facilitated the seismic legal shift underlying
the Nazi regime, and the people who worked in the massive bureaucratic machine that
implemented the policies. Some of these bureaucrats, we know, were lawyers.
TASK FORCE ON ASSOCIATION GOAL VIII WHITE PAPER, supra note 2, at 21-26; WORLD JUSTICE
PROJECT, supra note 4, at 5.
8 Stephen Breyer, Judicial Independence: Remarks by Justice Breyer, 95 GEORGETOWN L. J. 903, 906
(2007).
9 31 U.S. 515 (1832).
10 Breyer, supra note 8, at 906.
11 358 U.S. 1 (1958); 347 U.S. 483 (1954).
12 Breyer, supra note 8, at 906-07.
13 THE NATION: May Day, U.S.A., TIME, May 05, 1958.
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We often describe the Third Reich as a lawless regime. However, the rise of the Third
Reich did not so much coincide with a rejection of the rule of law outright. Rather, the early
years of the Nazi regime embodied a co-opting and subverting of the rule of law and its
institutions. Adolf Hitler made no secret about his hatred for the legal profession and the
judiciary.14 However, he did realize the importance of the law in effectuating his ultimate
goals. Shortly after assuming power in 1933, Nazi leadership began to infuse the German
substantive law with Nazi ideology.15 One of the most important pieces of legislation to this
end was the Nuremberg Laws, and one of the most important aspects of these laws was the
definition of “Jewish” itself.
The Nuremberg Laws codified a host of discriminatory provisions against German
Jews, and, perhaps more importantly, were also the first time that German law actually
defined who was to be deemed Jewish.16 The process of marginalizing and oppressing a large
number of German citizens required that one could determine who fell within the targeted
class. Despite Nazi insistence that “Jewishness” was a biological trait, finding a reliable
means by which to determine who fell into that category proved quite difficult, as you can
imagine. Under these circumstances, the Nazis found legal definitions to be a convenient
mechanism for accomplishing their goals.
The Nuremberg Laws defined “Jewishness” primarily by one’s grandparents. Nongenealogical factors were found relevant to this determination as well, such as religious
conversion or membership at a synagogue, but genealogy was the primary emphasis. Of
course, this raised the question of how many Jewish grandparents sufficed for one to be
considered Jewish. 17 A requirement that a person merely have one Jewish grandparent
would subject a far larger number of people to these laws than a requirement that a person
have three Jewish grandparents.
German lawyers were often at the center of these conversations, weighing legal and
policy implications of various options and directing the drafting process. One of the lawyers
involved in drafting the Nuremberg Laws was a bureaucrat named Bernhard Loesener,
whose memoir makes clear that while the drafting and passage of these laws may have
seemed like the normal legislative process under the rule of law, in reality it was just the
opposite. As Loesener and others labored feverishly, various drafts were forwarded to Hitler
for his edits and approval—in other words, the rule of law was dictated, not by democratic
legislative procedures, but by the rule of one man.18
Sadly, we know that German lawyers did more than just facilitate the plans of Nazi
leadership. They were active participants, strategists, and even leaders in the darkest
aspects of the Third Reich. For example, the infamous Wannsee Conference, held on January
Brabner-Smith, supra note 1, at 1105.
DORIS L. BERGEN, WAR & GENOCIDE 71-73 (2009).
16 Id.
17 Id.; BERNHARD LOESENER, LEGISLATING THE HOLOCAUST: THE BERNHARD LOESENER MEMOIRS AND
SUPPORTING DOCUMENTS 56-59 (Karl A. Schleunes ed., Carol Scherer trans., 2001).
18 LOESENER, supra note 17, at 50-51.
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20, 1942, was the meeting at which senior Nazi officials gathered to discuss “The Final
Solution to the Jewish Question.” Despite the secrecy and euphemisms surrounding the
meeting, the Final Solution was well understood to be annihilation, and the purpose of the
Conference was merely to establish the methods. 19 Of the fifteen officials present at the
meeting, it is estimated that over half were lawyers—lawyers whose understanding of the
law and whose analytical skills were highly valued in making these plans.20
Yet, the Nazis did not only subvert the rule of law by altering its substance. They also
used traditional rule-of-law institutions to achieve their ends. Two prominent examples are
the notorious Sondergericht and “the People’s Court,” which Hitler established after
encountering resistance to his efforts from the established German judiciary.21 These courts
did not replace the existing court system, but existed outside of it. The People’s Court—
comprised entirely of lawyers—had jurisdiction over a wide range of “political offenses,” and
often dispensed with the common procedural rules that governed the regular judicial process
in the German judiciary.22 The vast majority of defendants were found guilty and many were
sentenced to death.
In reality, these were not courts at all, but rather mechanisms for carrying out predetermined political punishments. But the fact that they even existed provides an important
insight into the Third Reich’s mindset. This regime summarily murdered millions of people
without any remote concern for due process, yet still saw the benefit of cloaking certain cases
in the veneer of judicial trappings.
In addition to creating its own institutions, the Third Reich took advantage of existing
legal institutions as well. Upon assuming power, the Third Reich inherited government
departments full of low-level, ministerial employees who would eventually provide the
logistical support necessary to execute the regime’s sinister ends.23
One somber reminder of this fact is the memorial that stands today at the BerlinGrunewald train station in southwest Berlin. The station was one of the city’s primary
deportation sites. The memorial that stands there today consists of metal plates on the train
BERGEN, supra note 15, at 164-65.
MARK ROSEMAN, THE WANNSEE CONFERENCE AND THE FINAL SOLUTION: A RECONSIDERATION 96
(2002) (“[I]t is estimated that as many as two-thirds had university degrees, and over half bore the
title of doctor, mainly of law.”).
21 Brabner-Smith, supra note 1, at 1105.
22 INGO MÜLLER, HITLER’S JUSTICE: THE COURTS OF THE THIRD REICH 142-43 (Deborah Lucas
Schneider trans., 1991) (noting that the vice-president of the court “demanded that its members
must be politicians first, judges second,” and that a senior prosecutor added that the purpose of
this court was not to dispense justice, “but to annihilate enemies of National Socialism”).
23 Id. at 82-83 (“The scholarly commentaries on this law [the Law of the Civil Service of 1937] outdo
one another in making the demands of loyalty of civil servants more and more sweeping . . . . For
Ernst Rudolf Huber, the minimum requirements for appointment were ‘unqualified identification
with the National Socialist world view’ and ‘unconditional commitment to the Fürher,’ since [every
administrative act and judicial decision had to be] ‘based on unerring instinct and an emanation of
the spirit of the Volk . . . .’ ”).
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platform that identify the date, destination, and number of occupants of each and every train
that left that station for a concentration camp. Stop and think about that for a moment.
Over 70 years later, we know the exact number of people deported from a single rail station
in Berlin, the exact date of the departure, and the exact camp to which the train travelled.
Adolf Hitler may have made the decision to send these people to the camps, but he was not
the one filling out the ledgers, scheduling the trains, or budgeting for fuel. Make no mistake
that the unfathomable human tragedy of the Holocaust required a massive logistical effort,
carried out by civil employees, working under policies and procedures that carried the
appearance of law.
Adapting the German legal system to the policies of the Nazi party was intentional
and strategic. Hitler was well aware of the importance of the legal system his party inherited
when he assumed power in 1933. Germany’s legal system provided for structure and order
within Germany. It also provided a façade of continuity and legitimacy to international
observers. 24 Establishing courts and enacting legislation clothed the implementation of
genocide with familiarity, comfort, and normalcy. It also provided mechanisms for
circumventing or otherwise eroding customary bastions of the rule of law and established
footholds for future expansion of the Nazi agenda. The Nuremberg Laws ensured that
“Jewish otherness” was well ingrained in German law by the time that mass deportations
began.25
The collapse of the rule of law was plain to those who cared to look. As highlighted in
this exhibit, German-Jewish lawyer, Dr. Rudolf Olden, observed as early as 1935:
Germany today is in a state of barbarism. The dictatorship
knows no law, it does not even respect its own. It maintains law
courts and prisons, but at the same time it runs concentration
camps. An administrative act can be examined before the
Supreme Administrative Court, but not the deeds of the Secret
State Police, for which it [is] denied jurisdiction. The state has
its authorities, but where these are “insufficient’, the Party will
intervene . . . .26
What do we make of this barbarism? As lawyers, how do we react? There are
important lessons here. For one, there are few better examples of the fragility and
vulnerability of the rule of law than the Third Reich. The rule of law is foundational to our
way of life—but it is not self-executing. Law is not the ends, but rather an instrument to
BERGEN, supra note 15, at 72.
LOESENER, supra note 17, at 74. See also Germany: The Third Reich 1933-1945: The SS State, in
12 THE ENCYCLOPEDIA AMERICANA 681 (Int’l ed. 1992) (“The notorious Nuremberg Laws of Sept.
15, 1935, reduced all Jews to second-class citizens . . . . Subsequently, the Jewish population of
Germany was subjected to grim economic, social, and cultural restrictions, intended to force them
into emigration.”).
26 Lawyers and Journalist – Escape and Death, in LAWYERS WITHOUT RIGHTS 8,
http://www.lawyerswithoutrights.com/Exhibition/index.html (last visited April 19, 2016).
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achieve the ends of justice, fairness, and human flourishing. Employing the law for the ends
of justice requires people—people to abide by the law, people to enforce the law, and people
to refine our understanding of the rule of law. It should shock us how quickly, how
comprehensively, and how easily the Nazis dismantled the rule of law in a nation that
otherwise was among the most modern of its time. And it should call us to action.
A second key lesson we learn from the Third Reich is the vital role that lawyers have
in preserving the rule of law. Lawyers have knowledge and skills that uniquely equip them
to observe and understand threats to the rule of law. Indeed, those seeking to undermine the
rule of law may resort to those with legal expertise to do so. The Nazis would not have been
able to co-opt German society as effectively without the expertise of lawyers. As such, lawyers
especially must assume their role as guardians of the law with a special care and
understanding. We cannot afford to rest on an assumption that these institutions are too
well-embedded in society to fall prey to countervailing forces.
Fulfilling this duty requires diligence, awareness, courage, and wisdom. How this
plays out will not always be clear, and it will not always be easy. Much has been said about
the German-Jewish lawyers subjected to this evil regime, about the German lawyers who
assumed leadership over the Nazi agenda, and about the German lawyers who heroically
fought against it. But what of the rest of the German bar? What of the German lawyers who
neither took part in the Third Reich, nor actively resisted it? What do we make of them?
Studying the Third Reich can be an emotionally exhausting and intellectually
confounding endeavor. But by doing so, and by confronting these almost unfathomable
atrocities and crimes against humanity, we can find lessons for ourselves, our culture, and
our law.
Hopefully, none of us will ever face circumstances as dire as those in Nazi Germany.
But we will face injustice, and we will face attempts to erode the rule of law in our society.
John Locke reminds us of what is at stake: “[W]herever Law ends, Tyranny begins.”27 Each
of us, lawyers and judges especially, has an obligation to engage in this battle to preserve
and promote the rule of law in our generation.
Thank you very much.
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JOHN LOCKE, TWO TREATISES OF GOVERNMENT § 202, at 362 (A New Ed. Corrected 1821).
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