This is my translation of a chapter in Danish communist criminal defense counsel Carl Madsen's (1903-1978) book “Den Gode Læge” (The Good Doctor) from 1966. The chapter is the manuscript of a talk given in 1965.
Although the text is dated, the points made are still relevant, both in a Danish context and in a more general sense. In the talk, Madsen outlines Marxist-Leninist theory of the state and uses specific examples from the Danish legal system to underline his points, drawing on his practical experience as a defense counsel and his lived experience as a survivor of the Communist Law. Using the example of WWII-era persecution of communists to argue that the courts first and foremost serve the ruling class and will disregard written law if put under enough pressure. Madsen goes on to argue that the lay element in criminal justice in the form of juries and lay judges is mostly illusory and without any practical significance. He also argues that the courts are instruments of class power since they are organs of a class-based state. Additionally Madsen points to how the true centre of criminal justice is not the courts but the prosecution whose decisions to charge offenders are mostly rubber-stamped by the courts and whose decisions not to charge offenders are exempt from meaningful scrutiny.
I have previously posted two other chapters from Madsen’s book:
CW: This is a text written in 1965 by a man born in 1903. While Madsen was a principled communist who defended many socially progressive causes, his views on gender were typical for the patriarchal ideas of the time. The text contains a few instances of sexist language as well as a claim about the trustworthiness of the testimony of CSA victims that was as wrong and harmful then as it is today. They do not detract from the argument made in the text though and I have kept them in the text to preserve the integrity and accuracy of the piece.
Are They Class Judges?[^1]
Everything was gray, fortune was unkind,
in that little town I thought I left behind.
I was so alone, no one heard my plea,
nothing but the wrong that ever followed me.
Then I went to see the Old Judge, wise and mild,
with his snow-white hair and his understanding smile,
and now I know winter’s just a fleeting child,
now my heart is April-fresh and free from guile.
For the Old Judge’s quiet words were like a key,
gently saying: “Set the one who wronged you free.”
If that wrong should ever come back haunting me,
I will go again to him, and I’ll be free.
- Text: Thomas. Music: Verner Frederiksen ... and actually broadcast on Danish radio.
If one raises the question among a circle of jurists of whether Danish judges are class judges, one engages both the emotions and prejudices of most.
This is connected to the fact that bourgeois jurisprudence is arguably the wealthy relative of theology, but more boisterous and just as uncultivated, and notably without any real philosophical or cultural background.
Undeterred by the social thinkers and general philosophy of the last century, the bourgeois jurist clings to simple a priori dogmas. For example, that the courts float above the interest conflicts of the social classes.
For many a jurist, faith in the courts' formal and actual independence serves a similar function as faith in the Immaculate Conception does for a believing Catholic. In his youth, he might believe it himself, and later, he at least makes sure to raise his children to believe it.
The judges probably experience themselves as independent. Most of the time, at least. Socially speaking, many of them are a kind of overprotected incubator babies, hatched in thermostat-controlled hotbeds. They are rather unburdened by knowledge of the population's strife and toil, of the people's language and ethics. Even with nearly 40 years of forensic practice behind me, it still happens that I am startled by the striking ignorance of sensible judges about the society they live in and the people they judge. Words like 'class struggle' and 'class justice' must seem agitational, outdated, and emotionally charged to them, not to say vulgar, and yet these designations are merely common historical and philosophical categories and are used, at least by me, as such.
In these brief remarks, I can only identify, not analyze, this professional mindset—the social life-lie that allows the respectable judge to maintain his self-respect. It can be summed up as follows: the judge believes he rules independently of social factors, with as much fairness as is humanly possible, based solely on the law and the evidence presented. He believes that the law — in the broadest sense — and the law alone, is his guiding principle.
For my own part, I declare myself an adherent of a Marxist-Leninist conception of society. This conception presupposes the acceptance of a philosophy that is materialist and dialectical.
That it is materialist means — in contrast to the various idealist directions within philosophy, represented by Plato, Berkeley, Hegel, and others — that it fundamentally considers existence to be objective and knowable. That it is dialectical implies that it perceives the material, and thus knowable, world as a process of motion and a process of motion whose driving force is the quantitative accumulation of contradictions to the point where quantity transforms into quality. Modern cybernetic research is said to confirm dialectics.
The Marxist-Leninist conception of society is thus the application of materialist-dialectical philosophy to the historical development of human society.

This conception is the prevailing social doctrine in the socialist world. The social system of the socialist countries — including, for example, their foreign policy — has this doctrine as its premise. It remains incomprehensible to anyone without some training in this line of thought. That Danish jurists who serve as diplomats in the socialist third of the world are as ignorant of this as they are knowledgeable about which color of necktie is supposed to go best with blue suits, I mention merely in passing.
Marxist-Leninist theory views societal development as a natural-historical process governed by the laws of materialist dialectics. As Marxists and Leninists, we adhere to a monistic worldview. We also reject any dualism between society and nature.
The dialectical factor that has determined societal development throughout history, more than any other, is class struggle, the global tension between exploiters and exploited. In the present day, class struggle must be understood as a relation between social groups, rather than merely as an individual relationship between a given employer and his workers.
Historically, exploitation has taken multiple forms, but its foundation — and therefore the foundation of class struggle — is the historical fact that the most important means of production are owned, directly or indirectly, by an increasingly narrow and now highly internationalized upper class. Ownership of the means of production has never been more concentrated than it is in contemporary capitalist society.
This — in conjunction with other factors — means that the global class struggle, the tension between the starving masses and the upper class, has never been more acute than it is today.
The recognition of this should not be obscured by the fact that it has been necessary for the high-capitalist great powers, whose policy is dictated by monopolized capital, to establish a social cordon sanitaire between the countries of the socialist world and the utterly impoverished peoples in the former colonies, Latin America, and many other countries.
Private ownership of the means of production is, therefore, the basis of class society. It is not legal laws that create these property relations, but rather property relations that give rise to the laws. The position and true function of judges within this society is thus revealed.
The laws are a reflection of property relations, and the judges who rule based on these laws, or norms, as I would prefer to call them, are exercising the power of the wealthy when they pass judgment.
They are, in this sense, class judges. The essential function of the courts is to act as an instrument of power used by the ruling class to assert the privileges that form the basis of exploitation, privileges that are still being attacked by the exploited part of the population.
It is so for the wise, grey-haired, and benevolent judge. And the same goes for the state's other organs of power, such as the police and the military.
The state came into being and developed alongside the class struggle. In our time, state power is exercised autocratically by monopoly capital. I am not speaking here of legal forms, but of the social realities that underlie them.
We saw an early form of the direct exercise of state power by high finance in German Nazism and Italian Fascism. Now the form has become more streamlined and practical, as we know it in our Western nations, where capital exercises its domination under a guise of democracy.
If you compare the actual power structures, Hækkerup’s Denmark is like Hitler's thousand-year Reich, only the methods are smarter and undeniably, at least for now, more pleasant here in our part of the world.
If there happens to be anyone among my listeners who would like more detailed information on the philosophical foundations of socialism, I can recommend a book published by Dietz Verlag in Berlin in 1965, entitled Grundlagen der marxistischen Philosophie (Foundations of Marxist Philosophy). It contains the core philosophical material considered essential for students in socialist countries. For the Marxist theory of the state in particular, it is quite manageable to read Lenin's pamphlet The State and Revolution, which is available in various Danish editions.
In a lecture delivered in 1919, Lenin made the following remarks,which hit the central point of the Marxist-Leninist conception of the state.
Is the state in a capitalist country, in a democratic republic — especially one like Switzerland or the U.S.A. — in the freest democratic republics, an expression of the popular will, the sum total of the general decision of the people, the expression of the national will, and so forth; or is the state a machine that enables the capitalists of those countries to maintain their power over the working class and the peasantry? That is the fundamental question around which all political disputes all over the world now centre.
And Lenin answers:
you say your state is free, whereas in reality, as long as there is private property, your state, even if it is a democratic republic, is nothing but a machine used by the capitalists to suppress the workers, and the freer the state, the more clearly is this expressed.
He mentions Switzerland and the United States and states:
nowhere is this suppression of the working-class movement accompanied by such ruthless severity as in Switzerland and the U.S.A., and nowhere does the influence of capital in parliament manifest itself as powerfully as in these countries. The power of capital is everything, the stock exchange is everything, while parliament and elections are marionettes, puppets.

- Himmler: "Yes indeed, it is you, Herr Stamm, who are the police commissioner, but it is me who pulls the strings. (Illegal cartoon, 1943)
It was in 1919 that Lenin made this statement. Now, in 1965, the state's alienation from society is even more evident. The sovereignty of small nations has been annihilated; they are controlled by international capital groupings. In correspondence with this, the class struggle finds a characteristic expression in the national liberation struggles of oppressed peoples.
But what about reality? Does Danish reality actually correspond to these crude, agitational theories? Is there any empirical basis for such a characterization of our democratic state? Can one with any factual justification degrade our state institutions, including the courts, to class organs?
The courts are our subject of inquiry, and my thesis in this discussion is that our judges, too, are ultimately executive organs of dominant social forces, even if they do not always perceive themselves as such.
The recognition of the courts as class courts is concealed, and the public is largely deceived because the work of judges ostensibly consists of applying existing laws and other legal norms to facts and quasi-facts, which are established under the principle of the so-called free evaluation of evidence.
The central social function of the courts is to keep the people in check and safeguard the privileges of the ruling class and the foundation of exploitation: property rights. This is done, however, while carefully preserving the necessary democratic illusions. It is especially crucial to cultivate the belief that the courts are independent, both formally and in practice, and that they dispense a humane and impartial form of justice. Without maintaining this facade, the courts would be unable to fulfill their class function.
This duality between the real — the class character of justice — and the apparent — its freedom and independence — is of central importance to our discussion.
I will return to that point. But first, let me sharpen my thesis: I contend that our courts are class courts in the sense that they will fully and consciously disregard the legal order which they normally, at least formally and subjectively, uphold whenever state power demands it with sufficient force.
The Nazi regime in Germany represented the direct seizure of state power by German high finance. Its immediate purpose was to crush the revolutionary workers' movement with a level of violence that had, after all, been unavailable under the Weimar Republic. Furthermore, the intent was to use the state's military might to violently expand its sphere of exploitation. In reality, Hitler's Germany belonged to the Ruhr barons, just as the Federal Republic does, though in a slightly different guise.
Consequently, the occupation of Denmark must be seen as the country's incorporation into the unrestrained exploitation by German high capitalism.
Here, as everywhere else, the class struggle, under the given conditions, took on the form of a national liberation struggle. Within this framework, the conscious segment of the working class united with bourgeois patriots.
German high capital hardly found such willing legal henchmen in any other occupied country as they did in Denmark. The judiciary oriented itself frictionlessly towards the new upper class.
Under the new societal power structure, the courts shamelessly broke with all traditional law and justice. They fell in line with the collaboration governments and — to cite a particularly characteristic feature — sacrificed the lives and safety of Danish citizens.
The internments carried out under the Law on the Prohibition of Communist Activity and Agitation of August 22, 1941, serve as the classic evidence that our courts, when required, dispense an unconcealed form of class justice.
Since I dare not assume that the majority of my audience is fully aware of what transpired then, 25 years ago, I must provide a few, though I believe sufficient, details.
During the night of June 22, 1941, German forces launched a massive invasion across the borders of the Soviet Union. That same night, the occupation authorities here in this country demanded immediate measures to be taken against Danish communists.
Leading Danish police officials were summoned to the headquarters of the German police in Dagmarhus. There, they were presented with a list of 71 prominent Danish communists whose arrest was demanded. Among those listed were three members of parliament.
This list originated from the Danish police's intelligence division—Department D. All available evidence suggests it was handed over to the Germans by Police Commissioner Odmar, who recently retired with great honour.
Danish police immediately arrested everyone they could apprehend from this list. Furthermore, they arrested several hundred more on their own initiative and using other material.
Of course, communist activity was legal, and the party was represented in parliament by three members. Of these, Martin Nielsen was arrested immediately, while Aksel Larsen was taken into custody much later.
After several months of being held in overcrowded prison cells, the detainees were transferred to the Horserød camp. This took place on August 22nd, the very same day the Communist Law — passed unanimously by parliament — came into effect and Danish class justice swept into motion.
The Communist Law prohibited all communist activity and agitation. Furthermore, it stipulated that individuals who could be expected to violate the law in the future were to be arrested and interned immediately.
The internments were decided by administrative order of the Minister of Justice. His decisions had to be presented to a district court judge within 24 hours, and the judge would then rule on whether the order should be upheld. Under certain conditions, the judge had the power to overturn the administrative internment order.
The district court's ruling could be appealed directly to the Supreme Court, bypassing the High Court.
On August 22nd and 23rd, 1943, District Court Judge, and currently High Court Judge, Arthur Andersen ratified the first 109 internment orders.
The internment orders were signed by the then Minister of Justice, Thune Jacobsen, and countersigned by his department head, Herfelt.
This same Herfelt later became Copenhagen's Police Commissioner and recently finished his career as a Supreme Court Judge. He is still alive.
Between 1941 and 1943, hundreds of internment orders were issued, including against people who were not, and had never been, communists.
Once Arthur Andersen was done ratifying the first 109 internment orders, all of his rulings were appealed to the Supreme Court.
The defense was taken up by Supreme Court Counsel Steglich-Petersen. However, I have been informed that the Supreme Court refused to either hear him or see him, and would not even accept any written submission from him.
I requested permission from the Supreme Court to examine the records from that period, but my request was denied. I had been looking forward to a debate this evening with Supreme Court Judge Hvidt, who had agreed to be my interlocutor. He has since cancelled, and I would be very surprised if this were unrelated to his being informed that I intended to focus my remarks on the Supreme Court's implementation of the Communist Law to illustrate the class character of our judiciary. This is a great pity, as I had hoped to clarify several obscure points in my understanding of the events of that time. The Justice, of course, would likely have had access to the court records that I have been denied.[^2]

However, I can at least confirm the following: Before the three Supreme Court judges forming the Court's appeals committee had reached their decision on the cases, they were given a stern dressing-down by the Court's president at the time, Troels G. Jørgensen, who is still alive.
He pre-empted the court's decision by publishing an article in the Nazified journal 'Juristen' (The Jurist). In it, he vouched for the constitutionality of the Communist Law and branded the Communist Party of Denmark a criminally corrupt organization.
The groundwork had thus been laid. Without a hearing and without defense, all 109 hostages had their internment orders ratified by the three noble Supreme Court judges.
Throughout the entire occupation, to my knowledge, there was not a single instance in which either the District Court or the Supreme Court overturned an internment order.
The current Ombudsman, Stephan Hurwitz, was also listed for arrest but was saved due to the interventions of the the Minister of Justice with the German authorities.[^3]
The internment camp was run by the current prison warden, Alfred Claudius Bentzen. The first handovers of internees to the Germans took place even before 1943, without this affecting the courts' practice of ratifying the internment orders in the least.
On the night of August 28-29, the camp was handed over to the Wehrmacht. 98 of the internees managed to escape, but 150 could not and were deported to the Stutthof concentration camp near Danzig. Many were shot, tortured, or starved to death. Nearly all of the survivors sustained the most severe damage to their bodies and health.
I have reviewed this case to provide a clear and accessible example of class justice as practiced by Danish judges — in flagrant disregard of our most precious laws, including those on high treason.
We who have witnessed Danish justice operate in this manner are utterly impervious to any talk of the courts' independence from societal power structures. We have seen the raw, utterly unconcealed, and bloody class justice in our own land. We need no further proof.
I put before this learned assembly an interesting legal problem — a small, concrete exercise in criminal law — how can one possibly justify that the judges and officials in question are not guilty of homicide?
Their actions caused the suffering and death of many. They must have been aware of this consequence with the degree of certainty required to establish intent. Can this be considered lawful? Since when does a state of necessity confer the power to sacrifice human lives and liberty? And what about the internments that not even the Germans requested? Or the internments under the Communist Law of individuals who were not, and had never been, communists? Or the continued judicial ratification of these orders after the first hostages had already been handed over to the Germans?
It is tragic when a mentally deviant person shoots down four young police officers. We can all agree about that. Against such an act, society must react and will react. But what of the judges who sentenced to an internment, the consequence of which we know, and which the judges who sentenced had to reckon with as a near possibility?
The conclusion I have drawn from these years of experience is that Danish class justice, dispensed by the most esteemed Supreme Court judges, does not hesitate to sacrifice innocent lives when called upon by the holders of power in society.
These judges have delved deep into the very nature of judicial authority. They have embraced the notion that the supreme law above all laws is power itself, and that to judge is to exercise that power. This power ought to be exercised in accordance with written or unwritten law, and one should avoid causing provocative affront to it. However, when there is no alternative, when the imperative of power clashes with the letter of the law, and when a decision is of vital importance to society's rulers, then judgment must be rendered even against the written law, the constitution, and proclaimed principles of justice.
From this point of view the judges who acted against their compatriots during the occupation may escape the label of murderers.
I will now turn to the criminal justice system under more peaceful circumstances, and I will highlight various peculiarities that characterize it as a class instrument. Primarily, I will attempt to demonstrate the fundamental duality that is a defining trait of our, and indeed all, bourgeois criminal procedure. This is its peculiar characteristic: that its true nature is obscured, masked by a democratic facade, so to speak.
Thus, the ordinary citizen is granted a role in the criminal justice system alongside the legal element. It is an attempt to avert the devaluation of the court's authority that would follow from it openly appearing as what it is, a class instrument. And the punitive justice system cannot function effectively if the court does not enjoy this authority.
This apparent popular influence is formally significant but, in reality, illusory, a political deception. In the years following the 1919 judicial reform and on into the 1930s, this form of public participation was known to us only through the work of jurors in certain criminal cases.
The juries were, or were supposed to be, the fulfillment of a promise made to the people during the infancy of the constitution, forced through by the semi-revolutionary class struggle in 1848-49. The promise remained unfulfilled until the First World War. The heightened class tensions that emerged in the war's aftermath made it impossible to delay judicial reform any further.
The system entered into force in 1919, and it soon became clear that in certain cases the jurors really did assert a popular sense of justice that conflicted with the legal one. This was especially true in cases of abortion.
One might easily assume that the point of lay participation was to adjust the norms and views on criminal justice asserted by the state’s officials by confronting them with the people’s opinions. That, however, would be a mistake.
By the 1930s, the class struggle had entered a new phase. Conditions in Denmark mirrored those in the wider capitalist world. Fascism and Nazism — expressions of big capital's drive to seize state power directly — were gaining strength. Reactionary forces triumphed, both within and outside the Social Democratic Party, while the communist movement was weak. It was in this context that reactionary elements pushed through a reform of the Administration of Justice Act. This reform formally expanded public influence but, in reality, liquidated it.
Abortion cases were exempted from jury trial and the concept of the institution was compromised by having jurors not only deciding the question of guilt but also participating in sentencing. In these deliberations, each professional judge has four votes, while each juror has one.
The practical impact of including jurors in sentencing is nil. However, this formal participation is presumed to make them less inclined to acquit defendants than they might otherwise be. It is virtually inconceivable that all the lay judges would ever vote as a bloc against the professional judges, whereas the three judges can easily reach a consensus on sentencing.
Concurrent with this neutering of the jury system, the use of lay judges was introduced in the majority of criminal cases that do not proceed as guilty plea cases. Periodically, the jury system — which remains the only court where laypeople formally have the primary authority to decide the question of guilt — comes under attack from reactionary and legal-professional circles.
In the sole domain where the popular element ever managed to assert an independent viewpoint against the professional judiciary, it was defeated and removed from its position. The law did not adapt to the legal consciousness of the people, and in a stable capitalist state, it never will.
The situation is now that we have laypeople in the criminal justice system in a few jury trials, where they only rarely assert themselves against the state element, which operates through the public prosecutor and the jury-instructing presiding judge, who rounds off the procedure with a judicial instruction that almost always shapes itself as an ex cathedra evaluation of evidence. The legal presiding judge's concluding prosecution is the last thing the jurors hear before they decide the question of guilt.

Alongside the jury institution, we have the system of lay judges. However, I am convinced that they generally do not assert any independence from the professional judge, particularly not in the High Court. If the lay judges actually exerted any independent influence in their cases, this would be reflected in the number of acquittals. One can reasonably assume that it is extremely rare for the lay judges to rule against the professional judge and convict a defendant. The most recent crime statistics available to me are from 1961. In that year, 616 cases with lay judges, involving 670 defendants, were appealed to the Eastern High Court. Out of these 670 defendants, only 12 were acquitted at both the district and high court levels. The court changed the verdict from guilty to not guilty for seven defendants, and from not guilty to guilty for 35.
This statistic indicates that the lay judges’ influence on the outcome is negligible. The indictment forms the basis for the ruling in virtually every case, yet the assessment of the prosecuting authority is not good enough for this.
What, then, is the reason that the considerable lay element of the criminal justice system has so little practical impact?
The answer is not hard to find. The participants in the criminal justice system are not drawn from the population at large, but solely from its older[^4], upper, and middle strata. These are the demographic groups that side with the capitalist state, either due to their social standing or because of the dominant functionary mentality that pervades most of the middle class.
I acknowledge that the documentation for this claim is quite dated. However, to the best of my knowledge, no newer studies exist than the one conducted by High Court counsel Robert Mikkelsen, who compiled his data by reviewing all the annual lists and cross-referencing them with available statistics on the population's occupational distribution.
An update to this study would be desirable; however, I have no doubt that it would reveal a similar pattern.
I will now present some characteristic details from these older investigations.
In the period in question, Denmark's 68,000 farmers had provided 3,483 jurors, whereas the 103,000 smallholders had provided only 740. Consequently, farmers were overrepresented by a factor of seven compared to smallholders.
At that time, Denmark had 40,000 agricultural laborers and 100,000 farmhands, but they had no representation whatsoever. Furthermore, while there was roughly one juror for every 20 farmers, there was only one for every 200 fishermen. In the crafts and industries, master craftsmen were far more heavily represented than journeymen. In Copenhagen, for instance, the ratios showed one juror for every 19 master bakers, every 13 master masons, and every 9 master carpenters. For the journeymen in these same trades, however, there was only one juror for every 100 to 150 men. Overall, master craftsmen were consistently overrepresented by a factor of ten compared to their journeymen.
Among workers, the skilled were far more heavily represented than the unskilled. Across the entire country, there was only one juror for every 320 manual laborers. The same pattern held in commerce: there were 789 representatives for independent shopkeepers, while the entire national retail workforce only had 45. Furthermore, there were 240 directors asking the jurors compared to only 227 from subordinate office staff.
Independent restaurateurs were represented by 10 jurors, whereas their subordinate staff provided only seven. The pattern shifts again within the liberal professions. For architects, teachers, doctors, and journalists, there was one juror for every 50 to 100 practicing members of each profession.[^5]
Robert Mikkelsen concludes that the juries are comprised of representatives from the middle and upper classes. Consequently, the working class wields far less influence in the criminal justice system than its numerical size would entitle it to.
I can only agree with Mikkelsen when he writes:
...that the juries have nevertheless proven to be more progressive than the professional courts merely demonstrates how backward the latter are in their development, not that the lay courts represent the legal consciousness of the Danish people.
We must of course note that even a formally democratic electoral system would by no means deprive the lay courts of their now so pronounced class character. In capitalist society, the state, through the press, the educational system, the high voting age, etc., will prevent the people's legal consciousness from asserting itself, in the same way that the democratic parliaments of the capitalist states absolutely do not mean that 'the people' rule…
When debating whether the courts are class courts, one can indeed establish as a fact that the working population is virtually unrepresented among lay judges and jurors, and that the lay element there is play no independent role. The only beneficial effect of the lay element, in my view, is that it forces both prosecutors and defense lawyers to prepare their cases more meticulously.
The manner in which the prosecution — the dominant factor in criminal justice — works is a very significant element in the discussion of whether the courts — and I am speaking here only of criminal justice — are class courts. The prosecution works behind closed doors, and it follows an expediency principle in the decision of the charging question, such that charges can only be brought when the prosecution deems that the case can be carried through to a conviction. We do not have the small safety valve that one has in Norway, where there is a subsidiary access to private prosecution.
It is my opinion that the courts show nowhere near the necessary criticism with regard to evaluating evidence. The activity of the courts in criminal cases tends to restrict itself to giving the indictment a stamp of approval. The true state of affairs, as I see it, is that criminal cases are not decided by the courts, but by the prosecution, from which, incidentally, a large part of the country's judges are recruited.
In my opinion, 99 percent of all the talk about how the legal guarantees which the courts, with lay participation and all that, provide the citizens against miscarriages of justice, is hypocrisy and deceit. I believe that miscarriages of justice are not rarities in this country,[^6] and this is due, chiefly, to the courts' enormous meagerness in the evidentiary demands that are placed on the prosecution. It is striking how much stronger evidence a plaintiff in a civil case, which concerns money, must produce to get a ruling in their favor, than that which is enough to condemn a person to the most severe punishments.
An area where I find the usual assessment of evidence positively baroque is the credence given, despite all scientific evidence, to the testimony of children — and of pubescent girls in particular — in sexual assault cases.
Something similar applies to the trust the courts consistently show police officers who appear as witnesses. An officer may be ever so incompetent and his credibility highly questionable. Yet the legal system operates on the premise that an officer's testimony is inherently reliable.

In this country we practise the principle of free evaluation of evidence; that is, a fact is deemed proved once the judge is — or pretends to be — convinced of it. The judge weighs the evidence according to his or her personal conviction, but since that conviction is shaped by class society, the assessment of evidence inevitably reflects the same bias. Under our present social conditions, a socially skewed evidentiary practice is probably unavoidable.
The center of gravity of the criminal justice system is not the courts, but the prosecution, whose acquittals, decisions not to prosecute, are sacrosanct, and whose convictions, the bringing of charges, are usually rubber-stamped by the courts.[^7]
One can get a faint impression of the prosecution's activity through crime statistics. In 1961, 131,520 violations of the penal code were reported to or discovered by the police, and 42,699 violations were solved.[^8]
A total of 10,208 cases handled by the state prosecutor's office were adjudicated (most violations of the penal code fall under their purview). However, this number cannot be directly compared to the number of solved violations, as multiple violations can easily be adjudicated within a single case. Unfortunately, I do not have data on the number of acquittals in these state prosecutor cases, but that figure is vanishingly small and must necessarily be quite low, since charges are only brought when the prosecutor estimates that a conviction can be secured.
It is revealing that in 1961, cases involving 2,071 defendants were appealed to the two High Courts. Of these, only 41 resulted in acquittals at both judicial levels, while in 71 instances, a conviction was overturned and changed to an acquittal. Naturally, criminal statistics provide a very limited picture of actual crime, a large portion of which constitutes an unknown 'dark figure' that never comes to the attention of the authorities. However, the statistics do clearly demonstrate that a significant segment of the population finds itself in conflict with the penal code.
The decision-making within the prosecution's inner sanctum regarding whether to press charges is, as noted, shielded from public scrutiny. However, when one examines the social strata from which the criminals who are charged originate, one can confidently characterize the work of the prosecution as class justice. This is where it truly happens, far more so than in the courts
In a society such as ours, there is no fundamental difference between acquisitive crime and legal business activity. It is the prosecution service, through its charging decisions, that ultimately draws the line between the two.
This assertion was made not by me, but by Professor Hurwitz.
I cannot refrain from quoting from his work on the special part of criminal law:
...The boundary for the criminalization of fraud in economic matters is difficult or impossible to draw through abstract legal provisions. Concrete discretion must always be applied. This is because a certain measure of incorrect information and thereby equivalent omissions must be tolerated as falling outside the realm of the punishable... only when the demonstrated conduct falls outside what according to customary perception is considered defensible in commerce and dealings does room for criminal liability arise…
The difference between fraud and normal business practices is merely one of degree and form. It is the prosecution that marks this boundary, by deciding whether or not to bring charges. However, big business is, with few exceptions, shielded from prosecution. No single ray of light penetrates the infinite darkness of the prosecution service, but we can see the results of its work, and it is by these results that its class character must be judged.
With virtually no exceptions, only the small and the destitute are presented for the courts. No charges are ever brought for the large-scale fraudulent transactions that form an integral part of bourgeois business operations.
The public prosecutor exercises his discretion, and this discretion can only be overruled by the higher and highest prosecutorial authorities. The highest authority, as known, is the Minister of Justice, and the ultimate responsibility lies with the government.
The fact that we never see the tycoons of the business world charged by the prosecution service is not because they do not commit fraud, but because their class controls the state and by extension, the prosecution service. That our judiciary is a class-based system is evident from even the most cursory examination of the social background of those who are convicted.
As a Marxist, I can state this fact without any emotional distress. This is the reality, and it is the inevitable reality in a society founded on exploitation, where the line between criminal activity and respectable business practice is merely conventional.
Consequently, when I refer to our judges as class judges, it is because they are parts of a state apparatus that is class-dominated.
To substantiate this assessment, I could cite many more specifics than I have presented. However, I prefer to concentrate the discussion around three key points.
First, experience demonstrates that when subjected to sufficient pressure by the ruling power, judges will deliver verdicts as demanded by those in authority, irrespective of formal laws.
Second, the participation of laypeople in the criminal justice system is far from sufficient to purge it of its class character.
Third — and this is the crucial point — I refer to the courts as instruments of class rule because I view them as an organ of power within a class-based state. They function in unison with other organs of power, with the primary objective of preserving the established social order.
Naturally, there are many relevant aspects of this topic that we have not been able to address this evening. However, I would like to clarify a few final points to preclude the most trivial misunderstandings.
Nothing I have said here constitutes an ethical condemnation of judges. Hans Scherfig has written a preface for a book I am publishing in the near future, containing articles and reflections on the judicial system. In this preface, he writes:
Carl Madsen's book on the essence of the bourgeois legal system is not a tale of evil people, but of an evil social order. It deals not with the moral failings of individual persons, but with how property relations corrupt human character. A judge is a victim as well.
And that is my opinion on that matter as well.
By referring to judges as class judges, I do not mean to suggest that in specific, individual cases they are so class-bound that they would consciously favor convicting a worker over a director. While I certainly believe the widely cited Norwegian studies, which show a correlation between a person's income and their chances of acquittal or receiving a suspended sentence, are likely applicable to our country as well, I do not consider this finding particularly significant for my argument. My focus is on overarching currents and historical tendencies, not on individual rulings unless they are as profoundly revealing as, for instance, the internment cases. Moreover, it is in the ruling class's own interest for the public to maintain a degree of trust in the judiciary. This would be impossible if the outcome of a dispute between an individual employer and his worker were predetermined in the employer's favor. I would never put forward such a crude interpretation of my position.
[^1]: Manuscript for a lecture I held on October 27, 1965, in the Legal Discussion Club and the Student Society.
[^2]: Instead of the Supreme Court judge, a district court judge named Høgh appeared as my counterpart. I had sent him my manuscript in advance so he could have prepared a rebuttal to it. Instead, he gave a completely disinterested and boring lecture about banalities and about how excellent our criminal justice system is. How splendidly the prosecution functions, and how most defense lawyers know their place. He mocked the couple of 'dynamic' defenders we have. They are American in style, and it must be sad for them time and again to have to see their clients convicted, while their role model Perry Mason still gets his acquittals. Let the level thereby be indicated.
[^3]: I have had an interesting correspondence with the ombudsman about this, who, despite being in the Germans' material, maintained that he was not and had never been a communist. I shall not comment on that, but the Danish police must have registered him as such. This correspondence is mentioned in a memorial article about Hans Kirk that I wrote in 'Folkets Jul' (The People’s Christmas) for 1963.
[^4]: According to § 68 of the Administration of Justice Act, a number of persons who may be deemed suitable to serve as jurors or lay judges must be selected for each jury district. According to § 69, any man or woman of good repute who has the right to vote for parliament may be selected as a juror or lay judge. According to § 29 of the Constitution, cf. the Election Act of March 31, 1953, as amended by the Act of June 16, 1961, everyone who is a native citizen, has a permanent residence, and is 21 years of age has the right to vote for parliament.
From this pool of individuals, the municipal authorities compile a primary list. Upon receiving this primary list, the presidents of the High Courts are responsible for establishing the official lists of jurors and lay judges. For each specific case, the presiding judge or a lower-court judge then selects the individuals who will serve from these lists.
The selection of persons from the primary list for the juror and lay judge lists is performed in accordance with the § 74 of the Administration of Justice Act by a drawing of lots, which is arranged by the president of the High Court.
Without exception, at least in the jurisdiction of the Eastern High Court, one only encounters women of menopausal age or older, or similarly aged, dispassionate men serving as jurors and lay judges. Young or younger people who have a concept of the life that is lived in contemporary Denmark by fellow citizens in the more proactive generations are never seen. Sexual assault cases are adjudicated by the elderly,removeds by those whose active lives are behind them.
This outcome can only be the result of a systematic sabotage of the legal statutes. I do not know at which stage this blatant sabotage is carried out. It is possible that the municipal authorities only include elderly individuals on the primary list, though this seems unlikely. Alternatively, it's possible that the High Court presidents filter out, prior to the lottery, any candidates who have not reached a certain 'age of maturity,' meaning the average age of the judges themselves.
Once again, we see the familiar double-dealing: The public is led to believe that the broad Danish populace participates in the criminal justice system as judges. Yet, thanks to a sabotage of both the spirit and the letter of the law, the younger generations of eligible voters are barred from taking part. Many are aware of this blatant discrimination against the young, yet no one protests. We have grown accustomed to accepting everything, and we put up with this too. But would we still tolerate it if it were true that the High Court president sits in his office behind closed doors and rigs the lottery? If this is done with the full knowledge of the high court judges and the tacit approval of the Ministry of Justice? How is this possible?
[Translation note: Today, the practice in most municipalities is that the primary lists are compiled from rank-and-file members of the parties represented in the municipal council who volunteer to be on the list. The result is that jurors and lay judges remains older, whiter and richer than the people they convict and the community they are supposed to represent.]
[^5]: In the recently concluded 'Mona case,' the jury consisted of twelve jurors and two alternates. The foreman of the jury was a senior assistant. The panel also included three housewives, a female kindergarten director, two farm owners, a smallholder, a news stand owner, a manager, a mechanic, and a master bricklayer. There was not a single ordinary laborer among them.
[^6]: I use the term miscarriage of justice to mean a conviction delivered without a sufficient evidential foundation, in violation of the principle that any reasonable doubt regarding the guilt of the defendant should lead to an acquittal. A recent example is the "Mona case," in which a purser was sentenced to life imprisonment for the murder of a young girl. The conviction was based solely on circumstantial evidence and was handed down despite his persistent denial of guilt. This verdict has caused significant public unease, and on Sunday, October 24, 1965, Editor Nørgård of the newspaper Politiken published a highly readable editorial on the matter.
[^7]: We are sliding into a situation where the actual decision concerning both acquittals and convictions rests with the executive administration, while the courts merely perform a formal review of the cases brought to trial. This is a state of affairs in which one would have to concede that it makes no difference whether a defendant has a good defence counsel, a bad one, or none at all. Many defence counsels do, in my experience, perform a commendable and energetic job for their clients, but there are also very slack ones, who in no way assert themselves and the rights of the defense during the criminal process, but are just there because it's now the done thing. This type of defense counsel must not become the standard of the future, even if they are held in high esteem by the judges and are favored by the administration and the Bar Association.
[^8]: The efficacy of the criminal justice system in combating crime is significantly lower in our capitalist nations compared to socialist countries. While fully acknowledging the challenges in comparing statistical data across different nations, consider the following illustrative example:
Danish criminal statistics for 1961 (reported cases):
· Burglaries: 21,685
· Other thefts: 38,381
· Embezzlement, fraud, forgery, and debtor fraud: 8,105
· TOTAL: 68,171
Note: This Danish total does not include thefts of motor vehicles, mopeds, or bicycles.
For comparison, the German Democratic Republic 'recorded' (festgestellt) i