Critical Theory of Law of the Frankfurter Lawyer Rudolf Wiethölter

Domenico Siciliano, University of Florence

“Would anyone of them have suffered from a guilty conscience if they had won?” asks Hannah Arendt in the concluding chapter of Eichmann in Jerusalem, The Banality of Evil, published in 1963. Arendt accurately hits the mark. Were the Nazi criminals during the Second World War aware that they had committed or were about to commit horrific crimes against humanity? Or was this ‘only’ a matter that would be decided by the fate of the war, i.e. whether or not Nazi Germany won? Hannah Arendt’s fulminating reference with regard to the exemplary case of Adolf Eichmann to the uncertain and difficult test of the subjective element of the tort in the case of Nazi criminals is taken up by the Frankfurt-based German civilist Rudolf Wiethölter in the concluding paragraph of chapter II, dedicated to criminal law, of his ‘legendary’ (so Jürgen Habermas) book Funkkolleg Rechtswissenschaft, published in 1968. Wiethölter adopts the important and articulate reconstruction of Herbert Jäger just a year earlier in the fundamental ‘Verbrechen unter totalitärer Herrschaft’. Wiethölter writes: “The offenders’ conscience of injustice was not simply collectively absent (in the epochal sense, as it were), but is overplayed and repressed in the individual personality structure, which is regularly determined by external authority. The Nazi form of brainwashing consisted precisely in not turning around the “normal” conscience of the offenders (which resists the killing of the innocent and defenceless), but in conveying the feeling that one must remain loyal to the “idea” “despite the challenges”. A higher natural law of the superiority of the Germanic race, from which all individual value consciousness is converted, is placed next to and above the “right” […] This “double morality” was dependent on the stability of the system, and therefore relative. The fear of the “conscience” lived from the thought of the lost war, the appeasement of the conscience from the hope of the won war. “Would any one of them have suffered from a guilty conscience if they had won?” (Wem von ihnen hätte das Gewissen geschlagen, wenn sie gewonnen hätten?). (Hannah Arendt)“. (Rudolf Wiethölter, Rechtswissenschaft, Frankfurt am Main 1968, 157 s.).

But if this is the case, if during Nazi rule German ‘law’ was accompanied and to some extent subverted by the fierce shadow of the Nazi ‘right of nature’, made up of the ‘Führerprinzip’ and the ‘historical necessity of ‘sacrifice”, then the question formulated by Hannah Arendt in 1963 is of burning relevance and is also addressed to the German generation immediately following the Nazi generation wiped out or at least marginalised by the war, the generation to which Rudolf Wiethölter belongs. Wiethölter was in fact born in 1929, like Jürgen Habermas and Ralf Dahrendorf. He is      ‘top of the class’ and fortunately for him, on the one hand, due to his parents’ opposition, he does not enter the training schools of the Nazi elites of the time, and on the other hand, due to his young age, he escapes the compulsory military service by one year. In 1945 he is still 16 years old and, unlike young Germans a year older, is not called upon to be ‘cannon fodder’ for the fanatical defence of Berlin (and the Führer) from the Allies advancing on two fronts. The spring of 1945 will allow him and many of his peers to breathe a sigh of relief. For Wiethölter and his German contemporaries it can first of all be retrospectively rephrased like this: “What would we have felt, what would we have done, if we had won the war?”. And finally, in the light of the escaped danger, of not really having found themselves in the tragic condition of having to live in a criminal society, Hannah Arendt’s question can be rephrased further: “Now that you have been freed from the Nazis, now that you have had the good fortune not to have won the war and not to have had to test your conscience within a criminal regime, what will you do?”.

Wiethölter decides, like Habermas, to use the chance given to him by fate to become deeply involved in the democratisation of German society at the time. In the 1960s, after being nominated full professor for Bürgerliches Recht, Handelsrecht and Wirtschaftsrecht, Wiethölter found the right institution in the University of Frankfurt, where Theodor W. Adorno and Max Horkheimer had long since returned from exile in the United States. Together with three other professors, the philosopher Jürgen Habermas, the sociologist Ludwig von Friedeburg and the fellow jurist Erhard Denninger, Wiethölter waged an important battle for the radical reform in a democratic sense of the German universities, in continuous confrontation with the German student movement of ‘1968’, which was not incidentally committed to the ‘denazification’ German universities. The ‘struggle’, his political moment, ended for Wiethölter in 1974, in the ‘annus horribilis’ of the fall of Willy Brandt’s government and the failure of university reform. Wiethölter withdrew from ‘praxis’ and returned to ‘theory’. But in the 1980s, fellow fighter Jürgen Habermas returned from the Max Planck Institut in Starnberg, Frankfurt, and became increasingly interested in the theory of law. Habermas founded an ‘Arbeitsgemeinschaft-Rechtstheorie’, in which, with Klaus Günther, Rainer Forst, Günter Frankenberg and others (among them sometimes Wiethölter himself), he tested and discussed his new ideas in this regard. And it is precisely in this context that the dialogue between Wiethölter and Habermas on the democratisation of German society is resumed, this time at the level of legal theory, with the retrospective consideration of the common practice of the struggle for radical university reform. This gave rise to Rudolf Wiethölter’s theory of ‘proceduralisation’ on the one hand and Jürgen Habermas’ ‘theory of law’ on the other, which was to find its outlet in the publication of ‘Faktizität und Geltung’ in 1992. 

The article on which this blog is based is Critical Theory of Law of the Frankfurter Lawyer Rudolf Wiethoelter (forthcoming in the Winter 2023 issue of the Journal of Law and Society).

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