10 - ‘Self-Justifying Law of Constitutional Law’

Summary

Looking for orientation, it is worthwhile to reconstruct the intellectual trajectory of Rudolf Wiethölter, a radical legal scholar from the Frankfurt school of critical theory. Wiethölter reacts to the disaster of both current liberal and Marxist legal theories. He has the courage to lay out the blueprint for a constitutional utopia. Two distinct phases are discernible. In the first phase, he develops the program of a material constitution – the economic constitution as the constitution of society. In the second phase, after his long march through the three most advanced social theories of modernity, he develops a ’critical systems theory of law’, which, however, he sharply positions against Niklas Luhmann’s functionalist systems theory. Selbstgerechtes Rechtsverfassungsrecht (self-justifying law of constitutional law) – in this condensed formula Wiethölter enigmatises his vision of a future material constitution. No less enigmatic are its two main elements of a novel ’reciprocity’ and an ’impartial partiality’. How can these enigmatic concepts be deciphered? And what prospects do they open up to an ambitious constitutional program?