The Scottish Criminal Law Channel is a members platform, and we are delighted to include new content from member Andy Brophy, Solicitor. Andy will be writing more for us on a broad variety of fascinating topics in the months ahead.
On 8th May 1931, exactly 14 years before VE Day, a 28-year-old lawyer, Hans Litten, called a witness to give evidence in a case where he represented four people injured in an attack on a dance hall by the politically motivated, violent thugs of the SA. The witness called by Litten, in Room 664 of the Berlin Criminal Court, was the leader of the NSDAP, the political party of which the SA was part. The witness was Adolf Hitler.
Litten’s examination was so thorough and skilled that Hitler was publicly humiliated. It cost Litten his liberty two years later, and ultimately cost him his life. After the Nazis took power, Litten was arrested and spent the next five years in various prisons and camps, being routinely tortured and interrogated, all without charge or trial. On 5th February 1938, Hans Litten took his own life in Dachau.
The personal vindictiveness displayed by Hitler towards Litten, was part of a wider assault on the justice system which the Nazis commenced immediately upon them taking power. Taking control of the courts, and neutralising the legal profession, were prerequisites for their plan for Germany. The veneer of legality, and the façade of legal grandeur and procedure, played a crucial role in the transformation of Germany into a homicidal, genocidal, and totalitarian state.
The fact that the Nazis, and indeed their fraternal twins in the USSR, felt the need to dress up terror in legal robes, should alert us to the importance of a properly functioning, judicial system deciding cases based on legal principle and justice.
No lawyer working in the Western countries today has any reasonable apprehension of suffering the fate of the brave and unfortunate Litten. However, in defiance of Godwin’s Law, the extreme cases of Nazi Germany and Soviet Russia, inexorably lead us to the conclusion that, in opposition to the Marxist theory which dominated Western thought for decades, the legal system, and particularly the courts, are not merely part of the “superstructure” of capitalism but are rather a central, and crucial, part of a civilised polity.
Accordingly, the system as we know it, based on presumption of innocence, proof beyond reasonable doubt, prosecutions in the public interest, each case decided on its own merits, and just and independent determination of cases with public involvement in the most serious cases, is not something to be neglected, discarded, or even downplayed. All the principles enumerated above are, in themselves, crucial aspects of not only our legal system, but of our civilisation itself.
I think we can presume that Hans Litten would have agreed with that.