"THE GERMAN POLICE" by Dr. Werner Best, Pp. 14-20
1940 edition.
III. LAW. The conception and formation of "police" law, which governs the duties and activities of the "police" in detail, is based on the conception of the law and its formation in general.
1. Law. a. The personal-human (individual-human) conception of law.
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For the personal-human (individual-human) conception, "law" is only that law laid down by those who are concerned with the validity of the law or those commissioned by them, in accordance with the rules of the fundamental law—the "constitution"— or a legal decree based on law, whereas the administrative decree which governs the actions of the authorities is not regarded as law. Every action which is not based upon the law and does not come within its framework, is wrong and illegal, insofar as it concerns individual men, because their agreement to such action cannot be stated or supposed.
b. The people's conception of "Law".
According to the people's conception, law is every rule which fulfills the unity of the people's "organs"—organizations and individuals—and which is sanctioned or approved by the leaders. There is, therefore, no difference between stronger and weaker "rules", between "constitutional Law" and "common law", between "law", "orders" and "decrees", between "public" and "private" law. The will of the leaders, in whatever form it is expressed whether through law, order, decree, single order or collective order, regulation of an organization or regulation of competence, etc., administers law and alters all theretofore valid law.
2. "Police" law. There is no written "Police" law of the German Reich, which rules the duties and activities of the Police (actual "Police" law).
The only government ruling, in which the "police duties" are mentioned, without any more detailed specification, is in the Fuehrer's and Reich Chancellor's decree concerning the appointment of the Chief of the German Police and Reich Ministry of the Interior, dated 17th June 1936 (Reichsgesetzblatt I, p. 487):
For the unification of the police duties in the Reich, a chief of German Police of the Reichs Ministry of the Interior is appointed who will be commissioned with the leadership and organization of all police matters in the administrative sphere of the Imperial and Prussian Ministry of the Interior.
The contents of the "police duties", which in this are specifically recognized by the leader as special State duties, must be gathered from the written and unwritten "law", through which the action of the police is at present determined.
a. The written "police" law.
Written "police" law, which governs the duties and activities of the "police" exists at present only as common law of the individual German states. As an example, the Prussian Police Administration Law of 1.6.1931 (Prussian Law Manual, p. 77) is referred to.
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The extent to which this written law can still be regarded as valid, evolves upon two points of view, insofar as differences of common law definitions can be established, firstly, to exercise duties uniformly in the German Reich, diiferent rules in diiferent districts cannot be recognized; secondly, in deferences of common law, the laws drawn up by the national socialist regime take precedence over the laws of earlier times which are still valid.
The most important national socialist ruling on duties for a part of the "police" is contained in the Prussian Law of 10.2.1936 (Prussian Law Manual, p. 21) about the Secret State Police. Clause 1 of this law reads:
The Secret State Police has the task of investigating and combatting all activity dangerous to the state within the whole territory of the state, of collecting and evaluating the results of the investigations, of giving information to the government of the state, of keeping other authorities posted as to facts important for them, and of supplying them with suggestions. The Chief of the Secret State Police in agreement with the Minister of the Interior decides what individual matters come within the sphere of the Secret State Police.
The sphere of competence of the organs of the ordinary administration of justice remains unaifected.
Thus the "police" task for a branch of the "police" has been defined according to the law of the land, in such a way that it conforms to the task which forms the basis of the people's conception of "police": the safeguarding of national order against disturbance and destruction.
The decree for the protection of people and state of 28.2.1933 (Reich Law Publication I p. 83) is to be regarded not as "police" law, i.e. as the direction of police duties and activity, but as the expression of the changed conception of "state" after the national socialist revolution, out of which arose the new conception of "police". Paragraph 1 of this decree reads :
The articles 114, 115, 117, 118, 123, 124 and 153 of the constitution of the German Reich are annulled until further notice. Therefore restrictions as regards personal freedom, the right of free expression of opinion including freedom of the Press, the right of forming unions and holding meetings, infringements on the secrecy of letter, post, telegraph and telephone communications, orders for house-searches and confiscation of property, as well as restrictions on property, even beyond the limits already fixed by law, are admissible.
By means of this legal statement it was formally made clear the very moment of the revolution, that individual decisions
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the law valid until then, even of constitutional law, are no longer to be used, as they are incompatible with the new conception of "state"; since that time countless other legal decisions of the past —even those of constitutional law—have been regarded as being no longer applicable without formal repeal or annulment, because they are no longer compatible with the new constitution of the state. The decree of 28.2.1933 for the protection of people and state was not a "legal foundation", i.e. a statement of their duties and their activity, but only the confirmation of the fact that the duties which they had already begun to undertake were in accordance with the will of the highest governing body to set things right.
Both the second clause of the law of 18.3.1938 (Reich Law Publication I p. 262) dealing with the re-unification of Austria and the German Reich and the third clause of the decree of the Fuehrer and Reich Chancellor of 22.10.1938 (Reich Law Publication I p. 1453) dealing with the administration of the SudetenGerman territories, served as the desired formal clarification, in the territories newly acquired by the Reich, that the restrictive legal decisions of the past must not stand in the way of the fulfilling by the "police" of their duties in Reich territory. The first paragraph of both these clauses is practically identical and reads:
The Reichsfuehrer SS and Chief of the German Police in the Reich Ministry of the Interior can take the necessary measures for the maintenance of security and order (in the decree of 22.10. 1938: administrative measures) even beyond the legal limits otherwise laid down for this purpose.
b. The unwritten "Police" law.
Not only the legal regulations drawn up by the national socialist regime, but also the whole activity of the German police since the year 1933 sanctioned by the highest governing body of the Reich—and partly on its sole instructions—as well as the re-arrangement of the "police" regulations, show that the duty of the "police" is conceived by the government in the sense represented here, and that any other conception of the duty of the "police" can no longer be valid.
Thus all legal definitions which are at odds with this must be considered as altered in the sense of this new conception, without formal cancellation or alteration of the individual earlier laws. For the making of laws as a result of popular "voices" working together, of actively operating organizations and of "actively" or "passively" cooperating individuals, for the fulfilling of a definite task—here the task of the "police"—must not be contra-693257—46—32
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dictory in itself, or only because an individual law drawn up at an earlier date has not been formally altered, and to which laws at variance with the will of the government remain tied. At an early date this conception became evident in the administration of justice of individual German High Administrative Courts. The High Administrative Court of Saxony has already explained in a decision of 18.1.1935 (published in the Reich Administrative Publication of 1935, p. 117 if) :
According to it (the national socialist conception of state and law), law is not the sum total of the single regulations expressly laid down by the legislator. Legislation is rather only the expression of the ideas of right which are rooted in the people. Not legislation but these ideas of law ("conceptions of right"), according to which laws are formed in steady development, represent "law" * * * In this sense, "law" as common law, i.e.
as the orderly way in which the people lives as a community, is recognized as taking precedence over the statutes themselves.
This means that the orderly or regular way in which the people fulfills the "police" task through its "voices"—organizations and individuals—is "police" law, which takes precedence over statutory law, insofar as this does not reproduce the contents of the "police" law which is valid at the time but which belongs to an earlier date and has meanwhile been altered.
The unwritten "police" law, i.e. law which is not laid down in statutory form, by means of which all "police" action is deter- . mined, does not however consist of mere "ideas of law" which are "rooted in the people", but of many sorts of regulations which in different forms—law, order, decree, single command, general command, organizational and competence regulations, etc.—were laid down by the highest governing body of the Reich or with its sanction. The "police" never acts in a lawless or illegal manner so long as it acts according to the rules laid down by its superiors —up to the highest governing body. The High Administrative Court of Hamburg rightly states in its judgment of 19.11.1937 (published in the Juristischen Wochenschrift 1937, p. 3335 f.):
According to its nature, the police must only deal with what the government wants to know is being dealt with.
What the "government" wants to know is being "dealt with" by the police is the essence of "police" law, and is that which guides and restricts the actions of the police. As long as the "police" carries out the will of the government, it is acting legally; should it overstep the will of the government, then it is no longer
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a matter of "police" action, but it is a case of a breach of duty by a member of the police.
Whether the will of the government lays down the "right" rules,
i.e. those possible and necessary for police action—thus the "police" law suitable for and beneficial to the people—is no longer a question of law, but a question of fate. For actual misuse of the "right-to-put-right" on the part of a people's government, whether it consist of harmful severity or of harmful weakness, will be punished more surely before history by fate itself with misfortune and overthrow and ruin, because of the violation of the "laws of life", than by a State Court of Justice.
[Pages 38-39] :
As the intelligence service of the German National Socialist Labor Party, the Security Service has first of all the task of investigating and keeping a watch over all forces, events and facts which are of importance for the domination of the National Socialist idea and movement in German territory. With this task follows that duty laid down by the Reich Minister of the Interior—the duty of supporting the Security Police—which is fulfilled, so far as it goes, under State orders. In support of the task of the Security Police in securing the ranks of the German people against interference and destruction of any kind, the Security Service has to watch over every sphere of life of the German people with regard to the activities of inimical forces and the result of state and political measures, and to inform continually the competent State authorities and offices about the facts which have come to light. Finally, it has to investigate politically and explore fundamentally the activities and connections of the great ideological arch-enemy of National Socialism and the German people, in order thereby to render possible a purposeful and effective fight against it.