Gertrude Luebbe-Wolff, born 1953, studied law at the Universities of Bielefeld and Freiburg (1969-1974) and took an LL.M. degree at Harvard Law School (1975). Having compeleted post-graduate practical legal training and received a docotoral degree (University of Freiburg, 1980), she worked at the University of Bielefeld and qualified for academic teaching and research (“Habilitation”, 1987). From 1988-1992 she served as Director of municipal environmental administration in Bielefeld, where her family lives. As a professor of public law at Bielefeld University, faculty of law (since 1992), she headed the directorate of the university's Center for Interdisciplinary Research (1996-2002), chaired the Federal Government's Council of Environmental Advisors (2000-2002) and received the Leibniz Award (German Research Foundation, 2002). Prior to being elected Justice of the German Federal Constitutional Court in 2002, she was a Deputy Judge at the Constitutional Court of North Rhine-Westphalia.

I have found it difficult to identify the writings that have been most important to my intellectual history. The reason may be reluctance to accept the idea that any single book has had the power to influence me at all. To my own surprise, almost all the books I have listed are books that I first read before I was twenty-five. Number ten is the only exception. Most of the fields in which I have worked and at least one of the fields in which I have read a lot, and which has influenced some of my writings (economic theory), are heavily underrepresented or even not represented at all. So be it. When in doubt, I have preferred to name books by German authors. I thought that would be more interesting to non-German readers.

Gustav Schwab, Gods and Heroes of Ancient Greece

In Gustav Schwab's colorful renarration, the ancient Greek myths had been adapted to nineteenth-century pedagogical purposes, mainly by purging them of explicit sex and of some of the cruelties that might frighten children too much (like Chronos’ devouring his offspring). Yet, what remained was enough to intrigue a little girl instilled with Catholic ideals of virtue and growing increasingly critical of some of the humans who advocated them. So little virtue even in gods! The higher in rank the god, the worse: Zeus frantic, promiscuous, and—that much could be read between the lines—a rapist. His wife, Hera, jealous enough to try killing one of his illegitimate sons by sending snakes into his crib. And so forth. I suspected that the Greeks had molded these gods after their own image and felt there was progress in praying to a more civilized god. Nevertheless, I found Mount Olympus and its inhabitants more thrilling to read about than the Christian heaven and Christian Trinity. What totally escaped my understanding when I first became acquainted with Hercules, Theseus, and Achilles was the fatal importance of the type of heroism they represented for the historical self-perception of Germans. None of the adults who, to my delight, liked my recounts of the adventures of these heroes (reports on earlier readings had been much less successful in capturing attention) ever commented on that side of the story. Decades later, I found out on my own.

Anne Frank, The Diary of a Young Girl

“Her thoughts are my thoughts, and our feelings are the same,” I wrote into my diary in early 1966, having started to read the diary Anne Frank wrote during the more than two years she, her family, and four other Jews spent hidden in an Amsterdam achterhuis before the Nazi occupants found them and eventually killed all of them except Anne's father. The presumptuousness and blatant inadequacy of these identifications did not occur to me then. I was aware that her situation and the way she coped with it were incomparable. But that did not prevent me from feeling closer to her than to anyone I had met in the books of my first twelve years. However, unwarranted this feeling of intimacy may have been, it had an effect that would have pleased Anne. More than anything I had experienced so far, it opened my eyes and my heart for the monstrosity of what my country had done, and for the enormity of the loss it had caused.

Friedrich Schiller, History of the Thirty Years’ War

Schiller is best known as a dramatist and lyric poet; however, he was also a historian. His History of the Thirty Years’ War (1790) is the first major historical work I read. The great war that devastated Germany from 1618 to 1648 is a pivotal event in German history. Many European powers were involved as protectors of their fellow believers and, of course, in pursuit of interests of their own, although, in essence, it was a war between Protestant and Catholic territories of the Holy Roman Empire. If Germans later became obsessed with the “state,” it is because of what they had had, instead, for centuries: an Empire, albeit in decay, unable to subject the vested rights and interests of the princes of its more than three hundred territories to common public purposes, whether civil or military, and unable even to prevent its members from waging war against each other. As Hegel, to whom I will come later, put it in his Essay on the Constitution of the German Empire (1801): “When only too often, you see vast numbers of German soldiers in the field, trust that they are not up to defend Germany, but to lacerate its viscera.”

From Schiller's history of the Thirty Years’ War, I learned about the worst and most traumatizing example of this calamity. From his accounts of what the presence or passage of huge armies meant for a region, even if they were friendly, and from his depiction of the extremely unfriendly siege and conquest of the city of Magdeburg by Catholic Bavaria's army under General Tilly, I learned about the extremes of hardship and cruelty that may accompany warfare. I also gained an idea of how standards of humane behavior are affected by material conditions, for instance, by whether there is a means to feed brigades other than by forced requisition and means of remunerating them other than by giving them license to rob and murder (“They must get something for their peril and labor,” Tilly said, in Magdeburg, when supplicated to stop his soldiers from plundering, setting blazes, assaulting women and spiking babies, or throwing them into the fire.) There was also evidence, however, that present material conditions, however important, do not necessarily work as full determinants. Under material conditions quite similar to those under which Tilly's army operated, the Protestant Swedish king Gustav Adolphus, according to Schiller, managed to set limits to what his troops could do to the local population. Even he could not disallow his soldiers three hours of pillaging after taking over Frankfurt an der Oder, but the general disciplinary regime was severe punishment for all excesses, and, on the whole, the conduct of the Swedish army was exemplary, so Schiller, the Protestant, reports.

Schiller's description of the atrocities of the Thirty Years’ War also confirmed my belief that the world I lived in was a much better place than the world of Tilly's and Gustav Adolphus's contemporaries, and that this was not momentary good luck but the consequence of a progress toward reason and humanity that while open to backlashes was unlikely to be completely reversible. The Holocaust presented a challenge to that conviction, but not, in my view, a refutation. It was only much later that I arrived at a clearer understanding of that intuition. Schiller himself, the fervent spokesman of Enlightenment, was not naïve in his optimism nor in his idealism. He believed in the power of the ideals of freedom and tolerance, just as he acknowledged the power of religion; however, he also knew and described how such powers needed association with less sublime interests and ambitions in order to become effective historical forces (this association is what Hegel, later, called the “stratagem of reason”). Schiller's narration does not include the history and the details of the Peace of Westphalia, which ended the war in 1648. Nor does it contain an analysis of the historical importance of this long and terrible religious war on the way to full recognition of religious freedom as a human right, or of its importance for the development of international law (it is not accidental that Grotius's De jure belli ac pacis appeared in the course of that war, in 1625). Schiller wrote too early for that. His other historical book, the History of the Revolt of the Netherlands,1 may be more enjoyable (same delightful language, same grasp of the human fears and passions at work, not so many battles). If, nevertheless, the History of the Thirty Years’ War made the greater and more lasting impression on me, this is probably not only because it was my first experience with great historiography but also because it gave me an initial sense of the role of war in the history of mankind and of its particularly prominent role in the history of Germany.

Ludwig Wittgenstein, Philosophical Investigations

Wittgenstein's Philosophical Investigations were my introduction to analytical philosophy. I loved the work, although (or perhaps precisely because) I felt it was people other than myself who badly needed his instruction. It is probably due to my pleasure with Wittgenstein that I considered studying linguistics and, having rejected that plan and studied law instead, made legal semantics one of my first objects of research. Later, when ordinary-language philosophy inundated the philosophical book market and came to dominate philosophical faculties, much of what I read and heard regarding it bored me out of my mind. Understanding the meaning of “meaning” and the meaning of the other languages you use seemed a necessary but not everywhere a sufficient prerequisite of good philosophy.

Rudolf von Jhering, Der Zweck im Recht (Purpose in Law), and 6. Rudolf von Jhering, Der Kampf ums Recht (The Fight for the Right)

One day, I hope, my compatriots will admit Rudolf von Jhering to the place of most eminent German jurist, which has long been occupied by Friedrich Carl von Savigny. This would indicate that German legal culture is pragmatic, rational, and strong. Savigny, a great savant in Roman law, was the head of the Romantic school of law, and the most prominent opponent of codification at the beginning of the nineteenth century. Law—like language, fairy tales, and folksongs—so he held, had always grown slowly and quietly out of the specific spirit of a people and should continue to do so. The young Jhering, himself a Romanist, admired Savigny for his analytic power in discovering the fundamentals of Roman law under the layers of doctrinal sediment accumulated by generations of less-than-inspired jurisprudence. Still, in trying to carry on with the same endeavor and to explain jurisprudence as an art—or, rather, a science, like chemistry—that consists in finding the conceptual elements and more abstract rules implicit in the existing legal material, he ended up advocating an awareness of how the formation of legal concepts and rules is a matter not just of logical analysis but of human interests and purposes (Purpose in Law, 1877–1883). Accordingly, the Romantic view of the evolution of law was to be rejected.

Law and rights, Jhering explained in The Fight for the Right (1872), were not the result of organic, silent, plantlike growth but a product of conflict and combat. Not only their adaptation to changing needs and circumstances but even their mere effective maintenance must be fought for. Going to court when your right is being intruded upon, willfully, is a contribution to that fight and a duty of the citizen toward himself and toward the community, even if only a small material value is at stake. The ideal values at stake are the legal order and the good morals that depend on it. This is what you defend in defending your right when it is violated, and it is from the readiness to engage in such a fight for your right that you can recognize the status of a society's moral health. It is forty years since I first read Purpose in Law and The Fight for the Right and fell in love with Jhering's brilliant style, his humor, and the ravishing mix of his rational sobriety and sensitiveness to human feelings. As a student of law, in much of what I had to read and listen to, I missed Jhering's pragmatism, his rule-oriented reasoning, and his sense of how good mores are tied to good law. As a judge, I learned to appreciate that some of those who have been wronged abstain from filing a lawsuit. However, it is probably due to Jhering that I know the importance of what I am doing not only when examining the Treaty of Lisbon but also when dealing with so-called petty cases.

Hannah Arendt, Eichmann in Jerusalem

This book is famous—or infamous, with parts of the audience—for the message concentrated in its subtitle (A Report on the Banality of Evil). Arendt's observation that Adolf Eichmann, the leading administrative organizer of the Holocaust, was a nondescript, utterly nondemonic subordinate and the subtitle phrase in which she had summed up this finding stirred intellectual and emotional turmoil in the ’60s. I did not quite understand that. Would it be more comforting to think that, where there is exorbitant crime, there must be some sort of devilish power in the delinquent? To me, the idea that great, immeasurable crimes can be committed by people devoid of any Luciferian greatness or other stature did not seem disquieting. What struck me was not Arendt's analysis of Eichmann and his trial but the part of the book that describes the course of the deportations all over Europe. I do not know whether this account is historically correct in every reported detail. It certainly is not comprehensive in identifying the reasons why patterns of collaboration or, less frequently, noncollaboration evolved so differently in the various European countries. However, it gave me a more vivid sense than many other readings had given me previously of how the project depended on compliance and acquiescence;2 of the extent to which, therefore, the presence or absence of empathy mattered; of the extent to which empathy had been absent in Germany; and of the complexity of factors bearing on how each nation behaved in this historical instance.

Karl Marx, Das Kapital

In an auditorium of one hundred German students, you will not find one, today, who has read Karl Marx. During the student movement that began in 1968, this was different. The blue volumes of the works of Marx and Engels, if not the complete edition, printed in the German Democratic Republic, were the central object of study, and it was from Marx's Critique of Political Economy, from the three volumes of his Capital, that the activists drew their assurance of victory. It delivered scientific proof—so those who knew told those who had not yet understood—that capitalism was just a transitory phenomenon, doomed because of the unalterable tendency of the rate of profit to fall. Although I disliked much of what I saw in the capitalist half of the world, I did not have any preference for the communist half.

But what if our becoming part of it, if the advent of the universal dictatorship of the proletariat was not a matter of preference but a matter of inevitable fate? I was skeptical about the possibility of predicting social revolutions and the future of mankind the way you could predict the revolution of planets around the sun; nevertheless, I did not see a full proof of the impossibility of such predictions in Karl Popper's Poverty of Historicism. So I studied Marx's Capital, among other writings of his, to find out whether his claim to have evidence of the historical necessity of communism was justified. As far as I recall, the whole theory rested on the assertion that the value of a commodity is determined by the amount of labor that is “socially necessary” to produce it. Hence, the capitalist's opportunity to appropriate the “surplus value” generated by industrial labor; hence, the tendency of profit rates to fall with the ever-sinking amount of human labor needed in industrial production. Marx's analyses impressed me; however, I found his concept of socially necessary labor to be a black hole from which, when you looked to see what was in it, the classical economic theories that Marx had done away with popped up again, along with their unsolved problems. No way such a concept could work as a clue to the secrets of the future course of history. This is how the first volume of Capital reassured me that I did not have to convert to communism.

Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts (The Philosophy of Right)

Hegel is the third of the really important philosophers in my life. The two most important ones are my father and my husband. Hegel must be given credit, though, for my acquaintance with the latter, whom I met at a Hegel Congress in Lisbon in 1978. Unfortunately, most people know Hegel only from Karl Popper's The Open Society and its Enemies, where he is portrayed as affirming Prussian authoritarianism and as a mastermind of totalitarianism. I do not know of a greater misunderstanding in the history of philosophy. What Hegel's Philosophy of Right is all about, and in which he is different from all his predecessors, becomes apparent from its structure. Ethical theories had long been based on the dichotomy of law and morality as exemplified in Kant’s Metaphysics of Morals, with its subdivision into a theory of right, dealing with enforceable rights and duties, and a theory of virtue, virtue being characterized precisely by its independence of any force or other external support, with the duties of virtue reaching far beyond those of law. It is this dichotomy that Hegel sought to overcome with his concept of Sittlichkeit—a dichotomy wherein law and mere righteousness appear as ethically deficient because they rest on enforceability and do not include Christian duties of charity, while virtue, with all its high aspirations, appears weak (“an empty ‘you shall’”) because it lacks any outside backing. Sittlichkeit is mostly translated as “ethical life,” but that is misleading. The concept of Sittlichkeit expresses Hegel's conviction that law and morality, external order and free inner motivation, must not be torn apart and played against each other but must be brought to unity—to a unity in which the distinctiveness of its objective and subjective elements is not suppressed, but preserved and integrated.

Sittlichkeit is this unity or integration. This is reflected in the tripartite structure (“abstract law,” “morality,” and Sittlichkeit) and substructures of the “philosophy of right,” and it becomes most apparent when you look at the elements of what Hegel called Sittlichkeit. These elements are “family,” “civil society,” and “state.” Hegel himself has, in other writings, explicitly contrasted this to the “evangelical councils,” the three elements of supererogatory virtue which are the basis of monastic life in the Catholic tradition: poverty, chastity, and obedience. In his exposition of the ethically good, the family replaces the ethical ideal of chastity. Civil society—an economic system wherein you contribute to the general welfare mainly by working for your own good and that of your family—replaces the ethical ideal of poverty. And the state—a state which commands the loyalty of free citizens taking part in it through their representatives and knowing it as their own affair—replaces the ethical ideal of an obedience that renounces the right to follow one's own insights. Instead of Catholic ideals of a moral virtuosity, which consists in suppressing natural impulses, Hegel recommends institutions that will satisfy human appetites and interests in a way that is compatible with (and will make them work for) the common good. He sees moral virtuosity and sacrifice as characteristic ideals of undeveloped social conditions. In an institutionally and spiritually more developed society, it will under normal circumstances be perfectly sufficient to be just righteous, and that is the ethically better state of affairs. The core concern of Hegel's philosophy of right was to educate us about legal institutions, as a consequence and prerequisite of moral advancement; about the necessary coevolution of institutional and spiritual progress (which sets limits, as he remarked, to the possibility of transplanting political institutions from one country to another); about the illusions of romanticism; and about the dangers of fanaticism. Above all, he warned us against the terror that will ensue from any attempt at governing a complex society by mere virtue or by dogma, be it religious or political, rather than by reasonable, differentiated law. We have failed to understand and learn his lesson in time.

Werner Sombart, Haendler und Helden (Merchants and Heroes)

Bad books can be instructive. This one was part of a self-imposed bad-books reading program I underwent a few years ago for the sake of better understanding the aversion against democracy as an effeminate form of government that was historically prominent in Germany. Sombart's most widely known works are about capitalism and the role of Jews in capitalism. Haendler und Helden (1915), rather forgotten today, was one of the pamphlets written after the outbreak of World War I propagating a German mission to save the world from succumbing to the “ideas of 1789.” To the universalist Western principles of liberté, égalité and fraternité, the German “ideas of 1914” opposed a vision whose essence Sombart captured in presenting the war as the critical contest between heroism and merchandise. Here the German hero, an idealist, ready to sacrifice his life (and here his wife, too, broad-hipped, ideally, and eager to give birth to more heroes), there the English merchant, seeking only profit and comfort. The foremost expression of German thinking and German feeling, Sombart explained, is unanimous rejection of anything that even remotely resembles English or, more generally, Western European thinking and feeling. This is paradigmatic. From the eighteenth century on, German self-perception had formed itself in comparison with Western neighbors and found self-assurance in fancied moral superiority. Sombart now praised war as the most holy thing on earth because it was at war that the moral superiority of German heroism became practical.

Reading Sombart's text and many related ones from the period between 1860 and World War II was diving into a muddy complex of nationalism, antirationalism, antihumanitarianism, antidemocratism, antifeminism, and anti-Semitism. I surfaced with a better understanding of the interconnection between the elements of that complex, and with a more acute sense of the pains and risks involved in the process of modernization, and with more awareness of the resulting challenges to international and supranational constitutional law.

1
In an earlier translation: History of the Rise and Progress of the Belgian Republic.
2
Even in Germany, cautious tests on the outer fringe preceded the bigger, nationwide operations. The “first experiment” (Arendt) took place in February 1940 in Stettin (now Szczecin), a city on the Baltic Sea, where about 1,300 Jews were deported overnight. This went without relevant protest. The second “experiment” was conducted in the southwest, and again the result was encouragement to proceed. It was agitating to read, in comparison, what the Danes could do and did to sabotage deportation orders.