Why personhood, part 1: the judge’s duty

Scenario: You’re a God-fearing judge. A young woman is brought before you. She is pregnant and she wants to kill her unborn baby. Under the laws of your state she must have written parental consent. Her parents have refused consent, but the law provides for a judicial bypass in this case. The lower court granted the bypass, but the state appealed, saying procedures weren’t followed as specified by law. So now here she is. You’ve had cases like this before, and you’ve always been able to find some procedural irregularity and protect the baby. But this time, all the paperwork is in order.

What is your duty?

Has the baby committed a crime worthy of death?

Here are some of God’s commands and instruction regarding these kinds of issues:

You shall not murder. –Exodus 20:13

Keep far from a false charge, and do not kill the innocent or the righteous, for I will not acquit the guilty. –Exodus 23:7

Vindicate the weak and fatherless;
Do justice to the afflicted and destitute.
Rescue the weak and needy;
Deliver them out of the hand of the wicked. –Psalm 82:3-4

They band themselves together against the life of the righteous
And condemn the innocent to death. –Psalm 94:21

“I, wisdom, dwell with prudence,
And I find knowledge and discretion…
By me kings reign,
And rulers decree justice.
By me princes rule, and nobles,
All who judge rightly…
But he who sins against me injures himself;
All those who hate me love death.” –Proverbs 8:12,15-16,36

Also on your skirts is found
The lifeblood of the innocent poor;
You did not find them breaking in. –Jeremiah 2:34

What would a God-fearing judge do in this situation?

“But my highest duty as judge is to uphold the law (of man)!”

Who should be our example? Schlegelberger, or Kreyssig?

Schlegelberger

Schlegelberger argued in his defense that he was bound to follow the orders of Hitler, the “Supreme Judge” of Germany, but that he did so only reluctantly. Schlegelberger pointed out that he did not join the Nazis until 1938, and then only because he was ordered to do so by Hitler. Schlegelberger claimed to have harbored no ill-will toward the Jews. His personal physician, in fact, was Jewish. In his defense, he also stressed that he resisted the proposal that sent “half Jews” to concentration camps. Schlegelberger suggested giving “half Jews” a choice between sterilization and evacuation. He also argued that he continued to serve as long as he did because “if I had resigned, a worse man would have taken by place.” Indeed, once Schlegelberger did resign, brutality increased.

In its decision, the Justice trial tribunal considered what it called Schlegelberger’s “hesitant injustices.” The tribunal concluded that Schlegelberger “loathed the evil that he did” and that his real love was for the “life of the intellect, the work of the scholar.” In the end he resigned because “the cruelties of the system were too much for him.” Despite its obvious sympathy with Schlegelberger’s plight, the tribunal found him guilty. It pointed out that the decision of a man of his stature to remain in office lent credibilty to the Nazi regime. Moreover, Schegelberger signed his name to orders that, in the tribunal’s judgment, constituted crimes. One case described in the decision involved the prosecution in 1941 of a Jew (Luftgas) accused of “hoarding eggs.” Schlegelberger gave Luftgas a two-and-a-half-year sentence, but then Hitler indicated that he wanted the convicted man executed. Although Schlegelberger may well have protested, he signed his name to the order that led to the execution of Luftgas. Another case cited by the tribunal concerned a remission-of-sentence order signed by Schlegelberger. Scheleberger explained in his decision that the sentence imposed against a police officer who was convicted of beating a Jewish milking hand would have been bad for the morale of officers.

Kressig

I see [a] hero judge…in Nazi Germany. Almost alone among the judges of the Third Reich, he stubbornly clings to the notion that justice matters more than career advancement. His name is Dr. Lothar Kreyssig, a judge at the Court of Guardianship in the town of Brandenburg, on the Havel River.

Since his appointment in 1928, Kreyssig’s superiors considered him to be a good judge–until he began a series of minor insubordinations such as slipping out of a ceremony in his court when a bust of Hitler was unveiled, publicly protesting the suspension of three judges who failed to follow the interpretation of “Aryan laws” favored by Nazi authorities, and referring to Nazi church policies as “injustice masquerading in the form of law.”

Reassigned to the Petty Court in Brandenburg, Kreyssig continued to be a thorn in the Nazi side. When the judge discovered that inmates at a local mental hospital were secretly being removed and killed, Kreyssig sent a letter of complaint to the president of the Prussian Supreme Court in which he complained about the “terrible doctrine” that “placed beyond the reach of law” concentration camps and mental institutions.

Officials at the Reich Ministry of Justice summoned Kreyssig in an effort to straighten out his thinking on matters of civil liberties. It didn’t work. Kreyssig returned to Brandenburg to issue injunctions to several hospitals prohibiting them from transferring wards of his court without his permission. The final straw for the Reich Ministry came when Kreyssig brought criminal charges before the public prosecutor against a Nazi party leader who headed the regime’s euthanasia program, “T4.”

When efforts to persuade Kreyssig that the euthanasia program was “the will of the Fuhrer” and that the Fuhrer was “the fount of law” in the Third Reich failed, Justice Minister Franz Gurtner demanded that Kreyssig withdraw his injunctions against the hospitals. Kreyssig refused. Gurtner accepted instead Kreyssig’s early retirement. A criminal investigation was opened against Kreyssig, but closed without prosecution.

In his book, Hitler’s Justice: The Courts of the Third Reich, Ingo Muller writes of the courageous judge of Brandenburg: “No matter how hard one searches for stout-hearted men among the judges of the Third Reich, for judges who refused to serve the regime from the bench, there remains a grand total of one: Dr. Lothar Kreyssig.”

The utilitarian philosophy, whose operating principle is, “Do the greatest good for the greatest number of people”, sometimes throws a few under the bus—“but the rest are so much better off!” But this is not the way of the Scriptures nor the way of faith.

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