‘Would any of them have suffered from a guilty conscience if they had won?’: Rudolf Wiethölter and post‐Second World War German law1
| Published date | 01 December 2023 |
| Author | DOMENICO SICILIANO |
| Date | 01 December 2023 |
| DOI | http://doi.org/10.1111/jols.12461 |
DOI: 10.1111/j ols.12461
ORIGINAL ARTICLE
‘Would any of them have suffered from a guilty
conscience if they had won?’: Rudolf Wiethölter
and post-Second World War German law1
DOMENICO SICILIANO
Dipartimento di Scienze giuridiche,
Università degli studi di Firenze, Firenze,
Italy
Correspondence
Dipartimento di Scienze giuridiche,
Università degli studi di Firenze, Via delle
Pandette 35, 50127 Firenze, Italy.
Email: domenico.siciliano@unifi.it
Abstract
This article reads the theory of law of the Frankfurter
jurist Rudolf Wiethölter as an ambitious attempt to
realize through law the indispensable radical democ-
ratization of post-Second World War German society.
The occasion was provided by the resurgence of critical
theory and the subsequent and related emergence and
affirmation of the student protest movement of 1968 at
the Goethe University Frankfurt. Following the thread
of the conflict/dialogue at the university with fellow
philosopher Jürgen Habermas, the article brings into
focus some stages in the evolution of Wiethölter’s critical
theory of law and of ‘true jurists’.
1
The importance for legal science, or rather for critical jurisprudence, of Rudolf Wiethölter
is similar to that of Jürgen Habermas, his Weggefährte (‘travel companion’) at the Goethe
University Frankfurt, for philosophy and the social sciences. Since the 1970s, Wiethölter
has significantly stimulated the debate on German, and also European and international,
legal theory in his Frankfurt Seminars, as well as in a series of seminal articles. In the
1970s, his body of works found a widespread resonance particularly within the discussion
1Hannah Arendt’s question is cited in German by Rudolf Wiethölter: R. Wiethölter,Rechtswissenschaft (1968) 158.
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modifications or
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© 2023 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU).
500 wileyonlinelibrary.com/journal/jols J.Law Soc. 2023;50:500–516.
501
of legal theory and private law thanks to the Italian translation (see, for example, the
works of Pietro Barcellona2) of his Funk-Kolleg book Rechtswissenschaft,3which was
published in the ‘Anno Domini’ of 1968 and has since, in Habermas’ opinion, become
legendary.
2
One of the most promising insights into Wiethölter’s work is that it drew due attention to the
indelible experience of the National Socialist dictatorship, Hitler’s war of aggression, and the
defeat of Nazism carried out not by the Germans but by the Allied powers.
Wiethölter was born in 1929, just like Habermas. Because of their age, they (unlike their
peers, who were just one year older) avoided becoming ‘cannon fodder’ in the doomed defence
of Berlin (and of the Führer) from the advancing Allies. When the war finally ended in May
1945 and Germany was forced to surrender unconditionally, they threw themselves into the
enterprise of doing everything possible to avoid the danger of the Rückfall in die Barbarei
(‘relapse into barbarism’), which the two great Frankfurt Fathers,Max Horkheimer and Theodor
Wiesengrund Adorno had, as early as 1947, set as their top priority in their Dialektik der Aufk-
lärung,4a project that was as mindful as possible of the dominant and destructive potential
of the Enlightenment itself. This is the fil rouge of the work of the kritischer Jurist (‘criti-
cal jurist’) or Recht-Fertigungslehrer (‘teacher of the just-ification of the law’) Wiethölter, as
his contemporary Habermas justly recognized in a text that he wrote in honour of Wiethöl-
ter for his 60th birthday. Habermas understood the fundamental feelings of his peer very
well:
Wiethölter is a great inventor of new formulas, a craftsman of words, a juggler of
many quotations, a magician of pyrotechnics and a parodist, who prepares words
to make them resonate in some way strident, and thus be able to fulfil their
services in terms of enlightenment. Like Alexander Kluge’s montages, Wiethöl-
ter’s discontinuous prose disorients the reader. Each sentence gathers thoughts
in a motto, each sentence falls into an abundance of connotations, each sen-
tence destroys a preconception, each sentence sits next to the heart of a hope
of the philosophy of history, which has left a deep impression on the generation
of 1929 ... With a sigh of relief from the spring of 1945, filled with melan-
choly and yet preserved throughout his life, Wiethölter remains a prisoner of his
generation.5
2P.Barcellona et al., L’educazione del giurista (1973).
3Wiethölter’s book Rechtswissenschaft was a sort of best seller of critical jurisprudence in Frankfurtand Germany in the
late 1960s and early 1970s: Wiethölter, op.cit., n. 1. It was (partially) translated into Italian by Luitgard Riegert Amirante
under the title Le formule magiche della scienza giuridica, with the exception of the parts writtenby Erhard Denninger and
Rudolf Bernhardt as well as the part written by Wiethölter himself on criminal law:see R. Wiethölter, Le formule magiche
della scienza giuridica (1975).
4M. Horkheimer and T. W. Adorno, Dialektik der Aufklärung (1947).
5J. Habermas, ‘Der Philosoph als wahrer Rechtslehrer:Rudolf Wiethölter’ (1989) 22 Kritische Justiz 138, at 13 8.
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