Robert H. Jackson Center

Lawyers Today: The Legal Profession in a World of Paradox

This article originally appeared at 33 ABAJ 24 (1947). Reprinted by permission of the American Bar Association Journal.

Lawyers Today:

The Legal Profession in a World of Paradox

by Robert H. Jackson, Associate Justice of the United States Supreme Court

Two conclusions of great significance stand out like a flame in the night, in the address of Mr. Justice Robert H. Jackson before a great audience on the Monday evening during the Annual Meeting. No doubt he intended the first of these; as to the second, the demonstration may or may not have been designed. The first is his objective account of the loyalty, the patriotism, the heroism, and the sufferings of most of the lawyers and judges, in the invaded countries of Europe and even at the hands of their own Governments. Thousands of lawyers and judges were tortured and killed for their fidelity to law and justice. The second inference, equally unmistakable, is as to the plight and fate of independent lawyers and courageous judges when their own Governments became "big", bureaucratic, dictatorial, subservient to minority "pressure groups", and when such Governments found that law and lawyers were standing in the way of arbitrary power and official discretion. These portrayals should convey a stern warning to all Americans. Mr. Justice Jackson's analysis of the differences between the jurisprudence and legal procedures of the Soviet Union and those of the Anglo-Saxons is striking and authoritative; he does not suggest that Americans should accept or adapt the Russian concepts of pre-trial determinations of guilt or the status of Courts as organs of "Government vengeance". His report that an independent legal profession virtually does not exist today in many countries of Europe gives an insight into the conditions which are road-blocks to progress toward peace and law.

We are aware that lawyers exert an influence on the social and governmental policy of the United States that is disproportionate to their numbers. The same is true in varying degrees of the legal profession in other countries. Its function and interest everywhere are concerned with movements and policies that affect the fundamental legal structure on which the individual relies for security and free personality.

A war, founded in the Nazi revolution, designed to alter society for a thousand years, has deeply cut under the social order and has shaken the legal and political institutions of Europe. The Nazi war was finally put down, after several years of apparent success, only by a partnership with another ambitious revolutionary movement—the Communist government of Soviet Russia. Thoughtful men of the law in all war-torn countries are struggling to solve the social and political issues which are the aftermath of this titanic military struggle.

Problems Like Those of Europe May Confront American Lawyers

Some of these countries already have been face to face with problems which may eventually emerge in the United States, but which now we see only as "through a glass darkly." It will give the American Bar a better perspective on our own future problems if we expand our intellectual horizons tonight to consider the struggles, failures and successes of our distant professional brethren. Everywhere the Bar has sustained many casualties among its members and their families, and has suffered demoralization among its practitioners and prospective members by absence in service. But we may most profitably direct our attention to matters which transcend personal misfortune and influence the development of the law itself.

The nearest parallel to our own situation is found, of course, among our closest intellectual kinsmen—the Bench and Bar of England. The Barristers, that branch of the profession which confines its activities to advocacy, have suffered serious corporate injury. Of the four Inns of Court which from time out of mind have been their university and home, only Lincoln's Inn has escaped serious destruction. Gray's Inn was pretty much destroyed. The Middle Temple and Inner Temple were damaged grievously. The Crusaders who sleep in the Temple Church look up at a weakened and shaky structure. But perhaps the scars on the shrines and temples of the Bar are symbolic, for no intellectual force more consistently and uncompromisingly resisted the lawlessness and absolutism of Hitler than the spirit of the common law which radiated from these ancient landmarks.

The English Lawyers' Heritage

But whatever they have suffered in tangible property, the vital consideration is that the English lawyers' monumental heritage of intellectual and professional independence and fidelity to the rule of law stands unimpaired. The English population, unlike those of the Continent, has not been torn by the dissentions and suppressions which come of betrayal, invasion and occupation. Her Courts are not under the stress of dealing with thousands of collaborators with the enemy; her few traitors calmly and quickly have been given due process of law. There is, of course, sharp difference of opinion among the British as to the future economic and political policy of the Government, but nothing like the bitter and irreconcilable hostility between classes which disturbs so much of Europe.

Even more significant is the fact that whatever differences exist about economic or social policy in England, there appears to be no difference at all as to the kind of legal system under which all England wants to live. The traditional freedoms of speech, press, assembly and religion, political freedom to oppose the government, and freedom to make one's way in the world, are staunchly defended on every hand.

Fear was sometimes expressed that the pressures of meeting total war would make inroads on British liberty as they often have on the liberties of other peoples. It is true that some of the regulations for defense of the realm seemed to confer a rather breath-taking discretion on administrative officials to arrest and detain. But an important contrast between British methods of government and our own makes this legislation less significant and less dangerous there than it would be if embodied in our own law.

Contrasts with the United States

In the United States, once Congress delegates authority to an administrative agency, the Congress loses effective control of the use to which that authority will be put, because it places the power in the hands of an independent and sometimes antagonistic Executive department of government. Hence, Congress legislates with wearisome and confusing details, designed to foreclose abuse, on the theory that every administrator will push his authority to the uttermost limits and as far beyond as the Courts will permit—an expectation seldom disappointed.

In England, however, the administrator is never out of reach of Parliament, which has a continuing supervision and can make sure that he uses his power with sense and moderation. A head of any department may be called up in the Commons at any time, to answer for any abuse, excess or neglect. Hence Parliament feels safe in conferring a broad but responsible discretion, while Congress is more cautious because it can confer only a relatively irresponsible power—one over which it has no continuous supervision which may be used in a very different spirit from that in which it was conferred and which often is insulated against effective judicial review.

British liberty is less a matter of written dogma than is our own, but it rests on a firm foundation of intellectual conviction as well as of sentiment, and it is practical and dependable. In these things that little Island has stood out against the waves of absolutism in government like a solid rock against the beatings of a storm-tossed sea.

Across the Channel the Continental legal profession in all countries must reckon with intellectual effects as devastating as the material wreckage of war. There was the humiliation and demoralization of defeat and occupation, the tragedy of widespread treason and collaboration by powerful individuals and classes with the invader. But in every country lawyers were among leaders of the resistance; and for it many were killed, tortured and sent to concentration camps. By their steadfastness under suffering, many lawyers have earned positions of leadership in the reconstruction of their nations.

Lawyers there as here are found leading opposing parties; they advocate different political measures according to the lessons of their experience. In the practice of their profession and on the Bench they must deal with most difficult property tangles and questions of civil and criminal responsibility growing out of enemy occupation, collapse of government, displacement of population, treason, collaboration, underground resistance, inflation and blackmarket operations. In all of the countries of Western Europe the Courts, the Ministers of Justice, and the Bar, are struggling successfully, but against heavy handicaps, to restore ordered life, administer justice and reestablish the rule of law.

Background of Legal Processes in Western Europe

The legal processes in Western Europe are conducted against a background of several years of an experience which stirs the deepest passions and arouses almost undeniable instincts for revenge. Courts, the Bar, legislative bodies and administrative personnel now are composed largely of men who always risked and often suffered tortures by resistance activities. At a dinner of the Paris Bar, approximately half of the members present had served terms in German concentration camps, and many bore marks of physical torture. Lawyers were spied upon, their secretaries and families were threatened or tortured to disclose their resistance activities, and sometimes they were betrayed by false friends. Some went into hiding, and small communities sheltered them in an anonymous existence.

The way lawyers lived under the occupation is well illustrated by an experience of the present Belgian Minister of Justice. He already had been in German prisons more than once when one day two of the dreaded German Gestapo men stood at his door as his demure wife answered the call. "Where is your husband? We want your husband," they demanded. She answered wrathfully, "You ask me where my husband is—you should tell me where he is. You took him last week. You promised to let him come back. You have him—where is he?" Impressed by the sincerity of her rage, they concluded someone must already have taken him, and they went away. Of course, he was in the house all the time, and when they left he escaped to another hideout. Such wit and bravery were commonplace conditions of survival among the intellectual classes of Europe who were hated and hunted by the conqueror lest they become leaders of opposition.

Would We Have Done Better?

During the occupation the Germans utilized the inhabitants in most of the countries to police themselves, to try ordinary offenders, and to administer their own laws except in matters affecting German security, supremacy and control. Large numbers of people thus became dependent for their positions and livelihood upon the German occupation authority. Some sought favor by denouncing the patriotic activities of their fellow-countrymen, but many rendered only perfunctory service to obtain rations and to avoid being punished. The real motives back of apparent acts of collaboration are generally difficult to appraise. The number of arrests for treasonable collaboration is nothing like the number whose acts would afford probable grounds for the accusation.

Considering the provocations and confusions, it is my impression that the people of Western Europe have acted with considerable moderation, and the Courts have shown commendable poise and fairness. I am not confident that we would have done better.

French Trials of Collaborationists

I am not unaware of criticism current in this country of some French trials. So far as I have observed, the French have convicted only persons who probably would have been convicted in a British or American Court. It is the method more than the outcome that is criticized. In judging these we must remember that the French follow the Continental criminal procedures, which are strange to Americans but which are accepted by many peoples as fair and just. The French people are of volatile temperament, and extreme statements or gestures by a French lawyer may actually carry no greater emotional content than does the habitual understatement by the British.

We must also remember that our accounts of these trials are often distorted by emphasizing to the reader what had no importance at the trial. For example, Schacht one day gave important testimony at Nuremberg as to the German preparations for war. We were surprised to find that the feature of that day headlined in this country was the statement that Goering thumbed his nose at Schacht. The guards said it never occurred. But if it did, not a single prosecutor, defense counsel or judge saw it, and it could have had no influence on the trial. Yet that fiction or irrelevancy was conveyed to the American reader as the important and sensational event of the day. Of course, similar distortion of French trials occurs in reporting.

French Courts in Travail

The French people love justice and, like the American people, recognize unfairness and oppression when they see it. My impression of the French judges, and I met most of them in the higher trial and appellate Courts, is that on average they are high-minded, devoted to their tasks and adequate to their jobs by the standards that prevail in the United States. French Courts, like American Courts, ordinarily do justice, and both occasionally do grave injustice. I do not think that their proportion of shocking decisions exceeds ours.

France is in a period of travail and reconstruction. Her legal profession still cherishes the philosophy of the rights of man which our forefathers found so inspiring when they framed the Declaration of Independence. Our French brethren in this trying hour are entitled to our confidence and our understanding support, in their effort to reconstitute their institutions in keeping with the French individualist spirit and free tradition.

The Profession of Law in Other Lands

The Low Countries long have been preeminent in their contributions to jurisprudence. Their legal professions are bringing to the readjustment of their societies the leadership and sound learning which comports with their tradition, and with a dedication to individual liberty deepened by a frightful experience with tyranny.

The Scandinavian countries present interesting studies in contrast. While Sweden remained out of the war, it is something of a laboratory in which social experiments not unrelated to our post-war problems are taking place. In economic affairs the Swedes have shown a pronounced tendency toward collectivism, and gradually and peaceably have socialized many industries. But, like England, they also have a determination to maintain civil and political liberties. Most countries which have started out to collectivise industry have ended by suppressing all personal liberty. But Sweden, while it may seem to have moved toward Russia economically, seems to stand firmly with the West in matters of jurisprudence and political organization.

Denmark had the misfortune to be the highway over which Hitler decided to travel. To the Danes, open resistance appeared futile and costly in life and property. But King Christian, the Danish authorities, and the Danish people, kept alive the spirit of independence. Lively underground resistance sent many Danes to the concentration camps or death.

Norway's Experience as to Its Courts

Norway's experience is perhaps most interesting to us. It has a written constitution modeled on our own, although the executive power is formally in a King. It also has a Supreme Court entrusted with functions similar to ours. When the invasion crushed organized and effective military resistance, King Haakon fled, followed by most of the Storting, or parliament. In the absence of both executive and legislative officials, the Supreme Court was the sole remaining symbol of constitutional authority. This Court was composed of men whose loyalty to the Norwegian Constitution was never in doubt, and it had uncommon prestige among the people.

The Court demanded of the invader obedience to international law, which explicitly requires that so far as possible the laws of the occupied country be respected. The Court was besought to appoint a new Government but it refused to supersede the legitimate but absentee one. Instead, with the King's consent, the Court named an administrative council solely to carry on administration in the absence of the regular authorities. It refused to recognize the legality of the Quisling government imposed on Norway by force of arms. It also insisted that administrative orders, even of the new de facto regime, were subject to judicial review, insofar as they affected the civil rights of the Norwegian population.

Rugged Resistance by Norwegian Courts

When the Quisling government proposed to reorganize the Court by replacing some Justices and appointing additional ones, the Court flatly and unanimously refused to recognize changes in its membership not made according to the Constitution. The Court was once arrested as a whole and several of its members were detained at other times. When force made it impossible to discharge their constitutional functions, at the risk of their lives the Justices unanimously resigned their offices, to signify to the Norwegian people that the Quisling regime was an illegitimate one, to warn that law and justice no longer reigned in the land, and to encourage resistance to the usurper and his invading supporters.

The liberation of Norway and restoration of the constitutional government brought the legal profession and the Courts to face many problems created by the period of de facto government by Quisling and his followers. Such was the confidence of the people in the administration of justice that, with one exception, there has been no mob violence toward the big or little quislings. The Norwegians are a scrupulous people about law observance, and have left determination of guilt and punishment to the Courts. Quisling, tried by a conscientious judge, was defended by able counsel and was condemned on ample evidence. The trials of others have been proceeding calmly, and Bench and Bar face the phenomenon of mass treason with a high sense of professional responsibility and moderation.

Law and Trials East of Germany

To the east of Germany there have been many trials of alleged war criminals by "People's Courts." I have not visited those countries, except Austria and Czechoslovakia, and do not undertake to appraise the work of their legal profession nor the fairness of their trials. Austria is laboring under the difficulties peculiar to a four-power occupation, and her independence is too nominal and brief to warrant any conclusions.

Czechoslovakia was one of the first countries to be occupied by the Nazis and one of the last to be given up. In Czechoslovakia nearly all of the lawyers, intellectuals and leaders have been in exile or in Nazi concentration camps. These liberty-loving people never ceased resistance and never ceased to pay for it with horrible penalties. Lidice is the classic example. This village of some 500 inhabitants was wiped out because it was thought the assassins of Heydrich were being harbored there. Every man was shot, every woman sent to labor camps, the children were scattered among Germans; the town was burned to the ground, and not one foundation stone was left on top of another.

The Confrontation of Frank vs. Daleuge

Karl Hermann Frank, the responsible German official, was taken prisoner by the United States. Since he was a citizen of Czechoslovakia and his crimes were committed in that country, we turned him over to its authorities for trial. Frank denied that he had political responsibility for decisions such as that to destroy Lidice and claimed that such acts were done on order of his superior officer, Daleuge. Daleuge also was our prisoner, and we delivered him to the Czechs to use as a witness to "confront" the defendant, according to the Czech procedure. This confrontation of witnesses is novel to us; and, accompanied by your President and members of my staff, I accepted the invitation of the Government to attend as an observer. The trial was conducted with dignity and without passion. The confrontation warrants description, for it shows how, by proceedings strange and perhaps unacceptable to us, others manage to achieve just results.

Daleuge testified that Defendant Frank was responsible for the atrocities. The presiding Judge asked the defendant if, after hearing Daleuge's testimony, he still denied responsibility. Frank still denied it. The witness then in substance was asked: "Can you look the defendant Frank in the eye and face-to-face repeat your testimony against him?" Daleuge said he could. The two men were stood face-to-face, perhaps ten feet apart. Daleuge, in a clear voice and squarely facing and eyeing the defendant, repeated his testimony. As he did so, Frank's eyes dropped, and then his head. There was not a doubt in any observer's mind that this process solved the riddle of who lied. While such a confrontation may seem a little melodramatic to us, and we probably could not require a defendant to participate, it seems a more revealing procedural device than any known to our law.

Two Blood-Stained Defendants at Nuremberg Were Lawyers

The Germans have long dominated the legal thought of Central Europe. German scholars in times past have made important contributions to jurisprudential teachings. But the profession there has been through a hard quarter-century and is badly demoralized. The German Bar has suffered the mutilation of its legal heritage, its independence, and its prestige. The lawyers, of course, can have no respected or useful place except in a society which is ruled by law. The tragedy of the German lawyer is the tragedy of the profession anywhere when a country is ruled by authority but not by law. Unfortunately, lawyers were found who were willing to help bring this about.

Two of the most blood-stained defendants at Nuremberg, both sentenced to death by hanging, were lawyers. One was Hans Frank, the notorious Governor-General of Poland, who was head of the German legal profession during the Nazi dictatorship. The other was Kaltenbrunner, the supervisor of the concentration camps and the political police, who was a disbarred Austrian advocate. During the long regime some lawyers opposed it, but they went to concentration camps or became fugitives. A few tried to remain aloof and subsist by nonpolitical professional chores. Others accepted or pretended to accept the Nazi doctrine and joined the Party. Many younger men who came on during the regime knew no other order and became real Nazi zealots. At the Nuremberg trial the defendants were allowed to choose Nazi lawyers to defend them, and several defense counsel were unrepentant disciples of Hitler.

No Independent Legal Profession Possible

Conditions since 1933 made the existence in Germany of anything resembling an independent legal profession impossible. In its dozen years of absolute control of all phases of German life the Nazi party effected a complete obliteration of the kind of courts and judiciary before which a legal profession can be serviceable and self-respecting. It established the fuehrerprinzip, or leadership principle, by which the Fuehrer, Adolf Hitler, became in form and in fact the sole source of power to legislate, to administer or to adjudicate. The first step was to do away with the Reichstag or Parliament and absorb into the Fuehrer its power to legislate. Then came a purge of the executive departments, and civil servants pledged to the fuehrerprinzip were installed in key positions. The Party was then ready to take on the most stubborn branch of the government and the last to yield—the judiciary.

The German judiciary long had been a respected one composed of professional judges fairly independent of political controls. Hitler overcame this independence both by changing judicial personnel and by depriving Courts of jurisdiction. Replacements caused by death and retirements were exclusively from the Party. There were also some conversions. Outright ousters for political or racial reasons were many and all unsubmissive judges were harassed, spied upon and put under pressure to join the Party and pledge themselves to the fuehrerprinzip.

Executive Attacks on the Judicial Power

There also were attacks upon the judicial power as such. When the Supreme Court acquitted three of the four defendants accused of setting the Reichstag fire, that Court was deprived of jurisdiction to try charges of treason and it was conferred upon a new "People's Court" which consisted of two professional judges and five Party officials. Special Courts to try political crimes were created and manned with Party members. Laws were decreed in such vague and general terms that these partisan Courts could find nearly anyone guilty, as, for example, the ruling that "every violation of the goals of life which the community set up for itself" although not contrary to "formal" law should be punished. It was decreed that every false or exaggerated statement which would harm the welfare of the state or the Nazi party was a crime.

But even this unlimited power in the hands of partisan courts was not enough. Anything that resembled the judicial process was apt to be objectionable to men bent on such ruthless persecution and terrorism of opponents. The device called "protective custody" was resorted to. Goering, on cross-examination, said "protective custody" meant the arrest of people, not because they had committed any crime but because they might do so if left at large. Of course, such a device precluded any hearing process. No Court of law could administer a system of arrests on prediction and suspicion. It made the police masters of the state.

A Sturdy Legal Profession Withered Away

This situation, of course, left no function for the legal profession in any case where the police or the state was concerned. The once sturdy legal profession withered away. There is in Germany a considerable number, mostly of older men, whose concepts of law and of professional duty were formed before the days of Nazi influence. Most of these were in obscure places during the regime but now provide a foundation for a revived German bar. But the conditions of four-power occupation, the alien and imposed character of such law as now prevails there, makes it improbable that much progress will be made until political conditions have settled.

The Soviet Legal System Is Different

I am frequently asked, sometimes with an air that suggests suspicion of "How was it possible to get on with the Russians?" The answer is not sensational. It was possible to get on with them in the same way one gets on with other good lawyers. They are men of ability and were cooperative and agreeable. Except on policy matters on which they may have had binding instructions from Moscow, they were reasonable and adaptable.

Of course, the Soviet legal system is very different from our own. Russian law, both of the Empire and of the Revolution, has been built on a more Eastern historical foundation. Much of our legal philosophy traces through Britain to Normandy and thence, like that of all Western and Central Europe, to Rome. Russia, too, received much of Roman law. But just as its heritage of Christianity was received through the Eastern Church, so its law came to Russia from the Eastern Roman Empire and traveled by way of Byzantium. The near East made its mark on Russian legal concepts, which for centuries have evolved under absolute government and have been shaped to its needs.

Of course, there is not, and never has been, in Russia any process comparable to the writ of habeas corpus by which Courts test the legality of imprisonment and protect the freedom of the person. The press and radio, even the theatre and all means of communication of thought, are government-controlled. The Secret Political Police is a part of Russian tradition, and there is no history of criticism of government and free discussion such as we practice. And we should not forget that the irresponsibility with which some of these liberties are abused and commercialized here strengthens the Soviet confidence that their system is superior to ours.

In 1917 the Bolshevik Revolution swept away the entire judicial hierarchy of the Russian Empire. A new system was devised and from time to time it has been revised. The Soviet reformers were not only hostile to the system of the Czars but they were equally antagonistic to the system of the Western countries. The two great currents of liberal legal thought, one from England and one from France, which in the Eighteenth Century converged in the American Revolution and in the French Revolution and in English Reform, completely by-passed Russia. Some common phrases which embody so much historical meaning to us, such as "due process of law," are not even translatable into Russian for want of an equivalent. A discussion of the Soviet system or philosophy would carry me beyond the limits of this paper. A few most general observations must suffice on a subject that would repay long study.

The Courts as Government Organs of Vengeance

Soviet jurists do not accept our Western point of view that the Court is and should be independent of other branches of the government and responsible only before the law. On the contrary, as one authority has stated, "The Court has always been and still remains, as it ought to be according to its nature—namely, one of the organs of governmental power, a weapon in the hands of the ruling class for the purpose of safeguarding its interests."

It follows that Courts under the present government are "a weapon" of the dictatorship of the proletariat to protect its interests and to carry out the "politik of the governing class." If, then, you ask why have a Court at all, a Soviet authority has answered, "In principle there is no real difference between a Court of justice and any other non-judicial organ of vengeance." The only distinction is that "judicial vengeance offers a greater guarantee that there will be no error" in finding the true facts.

Jury Trials Were Distrusted

The Soviet reformers abolished jury trial, which we regard as a great protection to the workers as well as to others. This is explained upon the ground that juries often return verdicts contrary to the wishes of the government in power. This, in the Soviet view, is intolerable. "The people" in office do not trust "the people" in the jury box. They established instead co-judges, or lay judges, to sit with the professional judges as more dependable "weapons in the hands of the ruling class."

The Soviets do not regard a trial as an adversary proceeding as we do. They reject the philosophy of a trial by contest. Their Court is not an impartial and unbiased umpire to supervise a legal combat. They want the Court and not the parties to try the case.

The Soviet criminal proceeding is on the Continental order. The police institute investigation of a crime and question the suspect. The case is then transferred to the inquisitor for preliminary inquiry, one stage of which may occur before anyone is accused. When there is a formal accusation, the case enters a new phase. Soviet law expressly requires that the inquisitor have sufficient grounds on which to base an accusation. No elaborate law of evidence has been developed; the Court may take any evidence which it thinks has any bearing on the case. All of the facts, including evidentiary facts, on which one is accused must be reduced to writing and read to him. Soviet law requires care that an accused know the exact charge against him. Then he is interrogated. The questions and answers must be reduced to writing, and the law explicitly forbids violence, threats or similar methods in interrogation. A mere confession is not deemed sufficient to sustain a conviction; the Court must also inquire into and verify the admission of guilt.

This preliminary inquiry is so thorough and official that the trial or "judicial inquiry" consists chiefly in examination, verification and analysis of the evidence taken in the preliminary inquiry. As a consequence of this procedure, the public trial is not so much concerned with proof of guilt as with the defendant's effort to overcome the case made against him by the preliminary proceedings.

I have mentioned these general principles because they explain some of the more basic differences which had to be reconciled if we were jointly to conduct a trial of war criminals.

Soviet Agreement on Independent Judicial Adjudication of Guilt

At the beginning of the negotiations of the agreement of London which provided for the trial, the Soviet delegation, with utmost frankness, said they saw no need for an independent judicial judgment as to the guilt of war criminals because Churchill, Roosevelt and Stalin had declared them guilty and all that was needed from a Tribunal was to determine the punishment. We pointed out that British and Americans concede no power to their Presidents and Prime Minister to pronounce guilt. After considering the position of the Western powers, the Soviet delegation agreed that the question of guilt of the defendants be submitted to independent adjudication.

When we considered trial procedures, the Soviet delegation raised objection to the British-American practice upon the ground that it is not fair to defendants. You may imagine that this was something of a surprise to me. The point of the objection, however, was that under the Soviet system when an indictment is filed, every document and the statement of every witness which is expected to be used against the defendant must be filed with the court and made known to the defense. It was objected, that under our system the accused does nor know the statements of accusing witnesses nor the documents that may be used against him, that such evidence is first made known to him at the trial, too late to prepare a defense, and that this tends to make the trial something of a game instead of a real inquest into guilt. It must be admitted that there is a great deal of truth in this criticism. We reached a compromise by which the Nuremberg indictment was more informative than in English or American practice but less so than in Soviet and French practice.

Confessions Obtained by the Russians

Two of the defendants, Fritsche and Raeder, had been captured by the Russians and were to be delivered to our authorities at Nuremberg for trial. Fritsche was known to have made a confession, and it was believed that efforts had been made to obtain one from Raeder. In view of the suspicion about the voluntary character of confessions obtained by the Russians, there was considerable interest in these prisoners. Fritsche, when under the protection of the Tribunal, denied that the written confession produced was in his words but he said that in substance it was true. While he had been in close confinement when it was given, he said that in no way had he been mistreated. Admiral Raeder made no confession and, although he had been interrogated at length, he made no claim that he was subjected to threats or violence of any kind.

I am unable to form any opinion as to the general practice of the Russians in obtaining confessions, but nothing in our experience showed their confessions to be more questionable than many obtained in this country.

Soviet Trial Procedure When an Individual Is Confronted by "Big Government"

The Soviet trial procedure, like our own, is capable of doing justice when in the hands of fair prosecutors and judges. The most serious weakness in either system is that an individual in the dock is so relatively helpless when confronted by the vast power of organized government. When a government has no concern in a trial except to see that truth prevails and justice is done, this disparity of strength is not serious. But when the interest of the government in any case is strong enough to tempt its prosecutors to strain to convict, the disparity becomes decisive. When this disposition to overreach exists, the Soviet system offers few checks or remedies as compared with those available to a defendant in our law.

Russian Distrust of Our Liberty

Between the Russians and ourselves there is a fundamental difference in outlook on life that complicates all relations. We abhor their political absolutism; they distrust our liberty. They do not think our liberty is genuine, as we think it is, and they doubt the social value of our kind of liberty. These differences go very deep.

I see little chance of convincing Russia that our system is best. They value a disciplined society, disciplined in thought and action, and to them our freedom is anarchy. Certainly we will not accept their system, for to us their discipline looks like tyranny. We must face the fact that East is East and West is West, and if the two are ever to meet in these matters it is far in the future.

Talk of War Hampers Good Relations

But it does not follow that we must war with them. While I was abroad often close to the Russian frontier and aware of the tensions that existed there, it was still incomprehensible that on this side of the water there were so many irresponsible voices almost eagerly predicting war. This sort of talk hampers good relations by creating unfounded fears of our motives and stiffening opposition to our proposals.

The Russians are a proud and sensitive people. They have suffered in this war far more than we have suffered whose lands were not invaded. I am confident that the masses of Russians do not want another war. But they have become keenly aware of their strength. Conflicts of interest between us will be difficult enough to compose against a background of public calm and good will. But I have confidence that in diplomacy as in legal matters there are solutions, not always satisfactory, of course, but infinitely more acceptable than resort to war.

Uses of Judicial Inquiry in International Affairs

Among those means to maintain peace, I think we have demonstrated that the process of judicial inquiry—the lawyer's specialty—is more practical and capable of more extensive use in international affairs than had been thought possible. This is encouraging, because I suppose agreement is nearly universal that the long-range maintenance of peace depends upon establishing means by which brute force will be subordinated to reason and force will be controlled by law.

But world law cannot be just your law, or my law, nor any one country's law. For this reason, some urge that there can never be a generally accepted law, because the interests, traditions and philosophies of the great nations, especially of the East and the West, are so divergent that they can never be reconciled in common concepts of what is legally right and legally wrong.

Jurisprudence of All Countries Is Reconcilable

A year and a half of daily work with Soviet, British and French lawyers, at all the chores that have to be done in conducting a great lawsuit, and frequent work with representatives from many of the nineteen nations which adhered to the Agreement of London, leaves me with a very strong conviction that the matters on which the jurisprudence of all countries are reconcilable, are far more important than an the things in which they are inevitably in conflict. Of course, it is idle to pretend that agreement is easy or can ever be complete between Soviet lawyers and those trained in the common law. Certainly our trial methods and technique are very dissimilar but, as we proved at Nuremberg, the differences are not insuperable. And I think we also found enough of fundamental unity and of common understanding so that agreement is possible on most of the underlying legal principles which guide the personal relations of man to man and the peaceful relations of state to state. Where our systems differ most, where they are least reconcilable, is in the relations which should exist between a state and its own citizens.

We men of the law, in all lands, should beware lest political differences lead us to exaggerate the differences in our legal philosophies and functions. Many political differences are as superficial to the real structure of society as cosmetics are to the anatomy of the individual. It is matters affecting the anatomy of the society that lawyers chiefly deal with, and it is anatomy that societies, like individuals, differ least.

Legal Profession Struggles Against Either Anarchy or Absolutism

Everywhere, in the aftermath of war, the legal profession is trying to repair the legal anatomy of shattered social bodies; everywhere they are struggling against anarchy. They are serving social orders that are not uniform; but no matter what the kind of society, the life of the individual is safer and more hopeful because lawyers faithful to their profession are there. We should be conscious and proud of our fellowship in a profession that is world-wide and on whose fidelity so much of the hope of a free and peaceful world depends.