The Struggle for Law

Front matter

The | Struggle for Law | By Dr. Rudolph von Jhering Professor of Law at the University of Göttingen | Translated from the Fifth German Edition | By JOHN J. LALOR | of the Chicago Bar | Second Edition | With an Introduction by | Albert Kocourek Professor of Jurisprudence in Northwestern University | CHICAGO CALLAGHAN AND COMPANY 1915

Copyright, 1879 By Callaghan & Company

Copyright, 1915 By Callaghan & Company

Author's Preface

IN the spring of 1872, I delivered, before a society of jurists in Vienna, a lecture which I published in the summer of the same year, materially enlarged, under the title: “The Struggle for Law.” In its latter form, it was intended not for lawyers only, but for the general reading public. The object I had in view in writing and publishing the essay was, from the first, less a theoretical than a practico-ethical one. I was concerned, in preparing it, not so much with the promotion of the scientific study of the law as with the cultivation of the state of mind from which the law must ultimately derive its strength, viz.: the courageous and constant exercise of the feeling of right.

Two months after the appearance of the first edition, a second became necessary; during the following year, a third, and the year afterwards a fourth. When issuing the last, my publisher proposed that I should prepare a cheap popular edition, at a much lower price, in order to give it as wide a circulation as possible. This end could be attained only by giving the work a much plainer dress and by making the edition unusually large. As even the previous editions had exceeded the ordinary size, and as the foreign market for the work grew smaller and smaller, by reason of the numerous translations made of it, I did not venture to believe that a fifth edition would become necessary. But the fact that a fifth edition is called for, is proof to me that this little book owed its success, on its first appearance, not to the charm of novelty, but to the conviction of a very large circle of people, that the fundamental view here advocated is correct; and in this belief I am strengthened by the many translations of it which have been made.

The following translations appeared in 1874:

1. A Hungarian, by G. Wenzel. Pesth.

2. A Russian, by an anonymous person, in a legal periodical published in Moscow.

3. A second Russian translation, by Wolkoff, in Moscow.

4. A Modern Greek translation, by M. A. Lappas. Athens.

5. A Dutch translation, by G. A. Van Hamel. Leyden.

6. A Roumanian, in a journal published in Bucharest.

7. A Servian, by Christie. Belgrade.

To these were added, in the year 1875, the following:

8. A French translation, by A. F. Meydieu. Vienna and Paris.

9. An Italian, by Raffaele Mariano.

10. A Danish, by C. G. Graebe. Copenhagen.

11. A Bohemian, anonymously. Brünn.

12. A Polish, by A. Matakiewiez. Lemberg.

13. A Croatian, by H. Hinkovic. Agram. In this present fifth edition I have changed the style of the work somewhat, and entirely omitted the former beginning of the work, for the reason that, considering the meagreness of my space, it had to do with ideas not fully intelligible to the laity nor of much use to lawyers. Whether it would not have been better, in view of the large circulation which my essay has found outside of the legal profession, to have omitted all those parts intended more for lawyers than for the laity, I cannot say. I have not done so, because the passages referred to do not seem to have at all interfered with the circulation of the work among the general public, and because, perhaps, the lawyer might not like to miss them here.

In the subject itself, I have not changed anything. I still consider the fundamental idea of the work so undoubtedly true and irrefutable that I look upon every word said in opposition to it as lost. The man who does not feel that when his rights are despised and trampled under foot, not only the object of those rights, but his own person, is at stake; the man who, placed in such a condition, does not feel impelled to assert himself and his rights, cannot be helped, and I have no interest in trying to convert him. Such a man is a type which must simply be acknowledged to be a fact. Egotism, without any redeeming quality, and materialism are the traits which distinguish him. He would not be the Sancho Panza of the law if he did not see a Don Quixote in every one who, in the assertion of his rights, looked to any other interests than the most grossly material. To him I have nothing to say but these words of Kant, with which I was not acquainted until after the appearance of the last edition: “When a man has made a worm of himself, he cannot complain if he is trampled under foot.” In another place Kant calls this “the casting of one’s rights under the feet of others, and the violation of man’s duty to himself.” And from “duty in relation to the dignity of humanity in us,” he draws the maxim: “Let not your rights be trampled under foot by others unpunished.” This is the idea which I have developed further in this little work. It is engraven on the hearts of all vigorous individuals and nations, and has found expression in a thousand ways. The only merit I can claim is that I have more fully developed the idea. An interesting contribution to the subject of my essay has been furnished by Dr. A. Schmiedl, in his “The Struggle for Law in its Relation to Judaism and Early Christianity.” Vienna: 1875. The saying of the Jewish professor: “Whether the object of thy right be a penny or a hundred dollars, let it be the same in thy eyes,” agrees entirely with the position I maintain.

I now leave it to my essay itself to convince the reader of the correctness of the view which it defends; and in doing so I have a double request to make of those who feel called upon to refute me. I would ask them, first, not to distort my views and charge me with a desire to stir up strife, or with inculcating a love of litigiousness, when I only insist on the struggle for law where the attack on one’s rights involves a slighting of the person also. The disposition which is ready to yield or to be reconciled, the meek and philanthropic spirit, the settlement of disputes, and even the surrender of one’s rights are not always incompatible with my theory. What it is opposed to is simply the unworthy endurance of wrong through cowardice or indolence.

The second thing I ask is that the person who seriously desires to obtain a clear idea of my theory, would make the attempt, in the place of the positive formula of practical procedure which it develops, to put another positive formula. He will then soon discover whither his course will lead him. The question is: What should a man do when his rights are trampled under foot? The person who can give a tenable answer to the question, that is an answer compatible with the existence of law and order and with the dignity of personality has refuted me. The person who cannot do this, must agree with me or be satisfied with superficiality, the mark of muddled minds, which may indeed be rendered dissatisfied and landed in negation, but which can reach no positive view of their own. In purely scientific questions, one may limit himself to the simple refutation of error, even when one is not in a way to point out the positive truth; but in practical matters, where it is certain that one must act, and the question is only how he must act—it is not enough to disregard the positive directions given by another as wrong, but he must put something in their place. I shall wait and see whether this will happen in respect to the positive answer given by me.

One word more, on a point which has been contested even by those with whom I otherwise agree. I refer to my claim that injustice was done to Shylock.

I have not contended that the judge should have recognized Shylock’s bond to be valid; but that, once he had recognized its validity he should not, subsequently, have invalidated it by base cunning. The judge had the choice of deciding the bond valid or invalid. He should have declared it to be the latter, but he declared it to be the former. Shakespeare represents the matter as if this decision was the only possible one; no one in Venice doubted the validity of the bond; Antonio’s friends, Antonio himself, the court, all were agreed that the bond gave the Jew a legal right. And confiding in his right thus universally acknowledged, Shylock calls for the aid of the court, and the “wise Daniel,” after he had vainly endeavored to induce the revenge-thirsty creditor to surrender his right, recognizes it. And now, after the judge’s decision has been given, after all doubt as to the legal right of the Jew has been removed by the judge himself, and not a word can be said against it; after the whole assembly, the doge included, have accommodated themselves to the inevitable decree of the law—now that the victor, entirely sure of his case, intends to do what the judgment of the court authorized him to do, the same judge who had solemnly recognized his rights, renders those rights nugatory by an objection, a stratagem so contemptible that it is worthy of no serious attention. Is there any flesh without blood? The judge who accorded Shylock the right to cut a pound of flesh out of Antonio’s body accorded him, at the same time, the right to Antonio’s blood, without which flesh cannot be. Both are refused to the Jew. He must take the flesh without the blood, and cut out only an exact pound of flesh, no more and no less. Do I say too much when I assert that here the Jew is cheated out of his legal right? True it is done in the interest of humanity, but does chicanery cease to be chicanery because practised in the name of humanity?

RUDOLPH von JHERING.

Göttingen, Feb. 24, 1877.

Chapter I

CHAPTER I

ORIGIN OF THE LAW

THE end of the law is peace. The means to that end is war. So long as the law is compelled to hold itself in readiness to resist the attacks of wrong—and this it will be compelled to do until the end of time—it cannot dispense with war. The life of the law is a struggle,—a struggle of nations, of the state power, of classes, of individuals.

All the law in the world has been obtained by strife. Every principle of law which obtains had first to be wrung by force from those who denied it; and every legal right—the legal rights of a whole nation as well as those of individuals—supposes a continual readi to assert it and defend it. The law is not mere theory, but living force. And hence it is that Justice which, in one hand, holds the scales, in which she weighs the right, carries in the other the sword with which she executes it. The sword without the scales is brute force, the scales without the sword is the impotence of law. The scales and the sword belong together, and the state of the law is perfect only where the power with which Justice carries the sword is equalled by the skill with which she holds the scales.

Law is an uninterrupted labor, and not of the state power only, but of the entire people. The entire life of the law, embraced in one glance, presents us with the same spectacle of restless striving and working of a whole nation, afforded by its activity in the domain of economic and intellectual production. Every individual placed in a position in which he is compelled to defend his legal rights, takes part in this work of the nation, and contributes his mite towards the realization of the idea of law on earth. Doubtless, this duty is not incumbent on all to the same extent. Undisturbed by strife and without offense, the life of thousands of individuals passes away, within the limits imposed by the law to human action; and if we were to tell them: The law is a warfare, they would not understand us, for they know it only as a condition of peace and of order. And from the point of view of their own experience they are entirely right, just as is the rich heir into whose lap the fruit of the labor of others has fallen, without any toil to him, when he questions the principle: property is labor. The cause of the illusion of both is that the two sides of the ideas of property and of law may be subjectively separated from each other in such a manner that enjoyment and peace become the part of one, and labor and strife of the other. If we were to address ourselves to the latter, he would give us an entirely opposite answer. And, indeed, property, like the law, is a Janus-head with a double face. To some it turns only one side, to others only the other; and hence the difference of the picture of it obtained by the two. This, in relation to the law, applies to whole generations as well as to single individuals. The life of one generation is war, of another peace; and nations, in consequence of this difference of subjective division, are subject to the same illusion precisely as individuals. A long period of peace, and, as a consequence thereof, faith in eternal peace, is richly enjoyed, until the first gun dispels the pleasant dream, and another generation takes the place of the one which had enjoyed peace without having had to toil for it, another generation which is forced to earn it again by the hard work of war. Thus in property and law do we find labor and enjoyment distributed. But the fact that they belong together does not suffer any prejudice in consequence. One person has been obliged to battle and to labor for another who enjoys and lives in peace. Peace without strife, and enjoyment without work, belong to the days of Paradise. History knows both only as the result of painful, uninterrupted effort.

That, to struggle, is, in the domain of law, what to labor, is, in that of economy, and, that, in what concerns its practical necessity as well as its moral value, that struggle is to be placed on an equal footing with labor in the case of property, is the idea which I propose to develop further below. I think that in so doing I shall be performing no work of supererogation, but, on the contrary, that I shall be making amends for a sin of omission which may rightly be laid at the door of our theory of law; and not simply at the door of our philosophy of law, but of our positive jurisprudence also. Our theory of law, it is only too easy to perceive, is busied much more with the scales than with the sword of Justice. The one-sidedness of the purely scientific standpoint from which it considers the law, looking at it not so much as it really is, as an idea of force, but as it is logically, a system of abstract legal principles, has, in my opinion, impressed on its whole way of viewing the law, a character not in harmony with the bitter reality. This I intend to prove.

The term Recht is, it is well known, used in our language in a twofold sense,—in an objective sense and in a subjective sense. Thus Recht, in the objective sense of the word, embraces all the principles of law enforced by the state; it is the legal ordering of life. But Recht, in the subjective sense of the word, is, so to speak, the precipitate of the abstract rule into the concrete legal right of the person. In both directions the law meets with opposition. In both directions it has to overcome that opposition; that is, it has to fight out or assert its existence through a struggle. As the real object of my consideration, I have selected the struggle in the second direction, but I must not omit to demonstrate that my assertion that to struggle is of the very essence of the law, in the former direction also, is correct.

In regard to the realization of the law, on the part of the state, this is not contested, and it, therefore, does not call for any further exposition. The maintenance of law and order by the state is nothing but a continual struggle against the lawlessness which violates them. But it is otherwise in regard to the origin of law, not only as to the origin of the most primitive of all law, at the beginning of history, but also the rejuvenescence of law which is taking place daily under our eyes, the doing away with existing institutions, the putting to one side of existing principles of law by new ones; in short, in regard to progress in the domain of the law. For here, to the view which I maintain, that the principles of jurisprudence are subject to the same law in their origin as in the rest of their history, there is, nevertheless, another theory opposed, one which is still, at least in our science of Roman law, universally admitted, and which I may briefly characterize after its two chief representatives as the Savigny-Puchta theory of the origin of the law. According to this theory, the formation of the body of principles of jurisprudence is effected by a process as unnoticed and as painless as is the formation or growth of language. The building up of the body of principles of jurisprudence calls for no strife, no struggle. It is not even necessary, according to this theory, to go in search of them, for the principles of jurisprudence are nothing but the quiet working power of truth which, without any violent effort, slowly but surely makes its way; the power of conviction to which minds gradually open and to which they give expression by their acts: a new principle of jurisprudence comes into being with as little trouble as any rule of grammar. The principle of the old Roman law, that the creditor might sell his insolvent debtor as a slave in foreign parts, or that the owner of a thing might claim it from any one in whose possession he found it, would have been formed in ancient Rome, according to this view, scarcely in any other manner than that in which the grammatical rule that governs the ablative was formed.

This is the idea of the origin of the law which I myself had when I left the university, and under the influence of which I lived for a good many years. Has this idea any claim to truth? It must be admitted that the law, like language, has an unintended, unconscious development, or, to call it by the traditional expression, an organic development from within outward. To this development, we owe all those principles of law which are gradually accumulated from the autonomous balancing of the accounts of the legal rights of men in their dealings with one another, as well as all those abstractions, consequences and rules deduced by science from existing laws, and presented by it to the consciousness. But the power of these two factors, the intercourse of man with man, and science, is a limited one. It can regulate the motion of the stream, within existing limits, and even hasten it; but it is not great enough to throw down the dikes which keep the current from taking a new direction. Legislation alone can do this; that is, the action of the state power intentionally directed to that end; and hence it is not mere chance, but a necessity, deeply rooted in the nature of the law, that all thorough reforms of the mode of procedure and of positive law may be traced back to legislation. True it is, that the influence of a change made by the legislative power in the existing law may possibly be limited entirely to the sphere of the abstract, without extending its effects down into the region of the concrete relations which have been formed on the basis of the law hitherto—to a new change in the machinery of law, a replacing of a worn out screw or roller by a more perfect one. But it very frequently happens that things are in such a condition that the change can be effected only at the expense of an exceedingly severe encroachment on existing rights and private interests. In the course of time, the interests of thousands of individuals, and of whole classes, have become bound up with the existing principles of law in such a manner that these cannot be done away with, without doing the greatest injury to the former. To question the principle of law or the institution, means a declaration of war against all these interests, the tearing away of a polyp which resists the effort with a thousand arms. Hence every such attempt, in natural obedience to the law of self-preservation, calls forth the most violent opposition of the imperiled interests, and with it a struggle in which, as in every struggle, the issue is decided not by the weight of reason, but by the relative strength of opposing forces; the result being not infrequently the same as in the parallelogram of forces—a deviation from the original line towards the diagonal. Only thus does it become intelligible, that institutions on which public opinion has long since passed sentence of death continue to enjoy life for a great length of time. It is not the vis inertiæ which preserves their life, but the power of resistance of the interests centering about their existence.

But in all such cases, wherever the existing law is backed by interests, the new has to undergo a struggle to force its way into the world—a struggle which not infrequently lasts over a whole century. This struggle reaches its highest degree of intensity when the interests in question have assumed the form of vested rights. Here we find two parties opposed each to the other, each of which takes as its device the sacredness of the law; the one that of the historical law, the law of the past; the other that of the law which is ever coming into existence, ever renewing its youth, the eternal, primordial law of mankind. A case of conflict of the idea of law with itself which, for the individuals who have staked all their strength and their very being for their convictions and finally succumb to the supreme decree of history, has in it something that is really tragic. All the great achievements which the history of the law has to record—the abolition of slavery, of serfdom, the freedom of landed property, of industry, of conscience, etc.—all have had to be won, in the first instance, in this manner, by the most violent struggles, which often lasted for centuries. Not infrequently streams of blood, and everywhere rights trampled under foot, mark the way which the law has traveled during such conflict. For the law is Saturn devouring his own children. The law can renew its youth only by breaking with its own past. A concrete legal right or principle of law, which, simply because it has come into existence, claims an unlimited and therefore eternal existence, is a child lifting its arm against its own mother; it despises the idea of the law when it appeals to that idea; for the idea of the law is an eternal Becoming; but that which has Become must yield to the new Becoming, since

3 Alles was entsteht, Ist werth dass es zu Grunde geht.

And thus the historical development of law presents us with a picture of research, struggle, fight, in short of toilsome, wearying endeavor. The human mind working unconsciously towards the formation of language is met by no forcible resistance, and art has no opponent to overcome but its own past—the prevailing taste. It is not so with law considered as an end. Cast into the chaotic whirl of human aims, endeavors, interests, it has forever to feel and seek in order to find the right way, and when it has found it, to overthrow the obstacles which would impede its course. If it be an undoubted fact, that this development, like that of art or language, is governed by law and is uniform, it cannot be denied that it departs largely from the latter in the manner in which it takes place; and in this sense, therefore, we are compelled decidedly to reject the parallel instituted by Savigny—a parallel which found universal favor so rapidly—between law on the one hand and language and art on the other. This doctrine is false, but not dangerous as a philosophical opinion. As a political maxim, however, it contains an error pregnant with the most ominous consequences imaginable, because it feeds man with hope where he should act, and act with a full and clear consciousness of the object aimed at, and with all his strength. It feeds him with the hope that things will take care of themselves, and that the best he can do is to fold his arms and confidently wait for what may gradually spring to light from that primitive source of all law called: the natural conviction of legal right. Hence the aversion of Savigny and of all his disciples to the interference of legislation, and hence the complete ignoring of the real meaning of custom, in the Puchta theory of the law of custom. Custom to Puchta is nothing but a mere mode of discovering the conviction as to what is legally right: but that this very conviction is first formed through the agency of its own action, that through this action it first demonstrates its power and its calling to govern life; in short that the principle: the law is an idea which involves force—to this the eyes of this great mind were entirely closed. But, in this, Puchta was only paying tribute to the time in which he lived. For his time was the romantic in our poetry, and the person who does not recoil from transferring the idea of the romantic to jurisprudence, and who will take the trouble to compare the corresponding directions followed in the two spheres with one another, will perhaps not find fault with me when I allege that the Historical School in law might just as well have been called the romantic. That law and the principles of legal right come into existence or are formed painlessly, without trouble, without action, like the vegetable creation, is a really romantic notion, that is, a notion based on a false idealization of past conditions. Stern reality teaches us the contrary, and not alone that small part of that reality which we have before our eyes ourselves, and which presents us, almost everywhere, with the most strenuous endeavors of nations in respect to the formation of their legal relations—questions of the gravest nature which crowd one upon another; but the impression remains the same, no matter what part of the past we contemplate. Savigny's theory can, therefore, appeal to nothing but prehistoric times of which we have no information. But if we may be permitted to indulge in hypothesis in relation to them, I am willing to oppose to Savigny's, which represents them as the time of the peaceable, gentle evolution of the principles of law from the inner consciousness of popular conviction, my own hypothesis, which is diametrically opposed to his; and it will have to be granted to me that, to say the least, it has in its favor, the analogy of what we can see of the historical development of law, and as I believe, the advantage, likewise, of greater psychological probability. Primitive times! It was once the fashion to deck them out in every beautiful quality: truth, frankness, fidelity, simplicity, religious faith; and in such soil, principles of law would certainly have been able to thrive without any other force to assist their growth than the power of the conviction of right: they would not have needed the sword, nor even the unassisted arm. But to-day we all know that the pious and hoary past was noted for qualities the very opposite of these, and the supposition that they were able to get their principles of law in an easier manner than all later generations can scarcely expect to be credited now. For my part, I am convinced that the labor which they must have expended on their task, was one still more difficult, and that even the simplest principles of law, such for instance as those named above, from the most ancient Roman law, of the authority of the owner to claim back his chattel from any one in whose possession it was found, and of the creditor to sell his insolvent debtor into foreign servitude, had to be first fought out by the hardest battles, before they obtained unquestioned recognition. But be this as it may, we may leave the most primitive times out of consideration. The information afforded us by the remotest history on the origin of law is sufficient. But this information is to the effect: the birth of law like that of men has been uniformly attended by the violent throes of childbirth.