THE 
 
 STRUGGLE FOR LAW
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 Professorof Law at the University of Göttinnen 
 
 Translated from the Fifth German Edition 
 
 I 
 
 J Struggle for Hato 
 
 D 
 
 By Dr. Rudolph von Jhering 
 
 I 
 
 I 
 
 I 
 I 
 
 By JOHN J. LALOR 
 
 t of the Chicago Bar 
 
 8 m 
 
 B III 
 
 Second Edition 
 
 I Wz'/A #« Introduction by 
 
 I Albert Kocourek 
 
 | Professor of Jurisprudence in Northwestern University 
 
 S to 
 
 1 I 
 
 1 to 
 
 ü chicago id 
 
 an: 
 
 1915 
 I TO 
 
 # CHICAGO W 
 
 | CALLAGHAN AND COMPANY U 
 
 W 1915 ID
 
 Copyright, 1879 
 
 By 
 
 Callaghan & Company 
 
 Copyright, 1915 
 
 By 
 Callaghan fcf Company
 
 
 
 To 
 <§totQ? Wä. g>mitf) 
 
 of the Bar of Chicago 
 
 this volume is 
 
 respectfully inscribed
 
 Contentö 
 
 Page 
 
 Introduction vii 
 
 Translator's Note xxxv 
 
 Author's Preface xliii 
 
 Chapter 
 
 I. Origin of the Law I 
 
 II. The Life of the Law a Struggle . 21 
 
 III. The Struggle for his Rights a Duty of 
 
 the Person whose Rights have been 
 Violated, to Himself 31 
 
 IV. The Assertion of One's Rights a Duty 
 
 to Society 69 
 
 V. Importance of the Struggle for Law to 
 
 National Life 97 
 
 VI. The Roman Law of To-day, and the 
 
 Struggle for Law 109 
 
 v
 
 Jntrobuctton 
 
 to tfje ©ranölateb 'Volumt 
 
 By Albert Kocourek 1 
 
 |p]T is the fortune of the generality 
 of men to follow the beaten path, 
 to use tools already designed, and 
 to think in terms already fash- 
 ioned. In such lives there is no room for 
 cataclysms, or great events; there is no place 
 there, either, for quarrel with the existing 
 order, or for effort to alter the accepted 
 course. Such lives constitute the cell mat- 
 ter of the social organism, reacting mechan- 
 ically, or at least without fixed resistance, 
 to the influences from without and within. 
 Rarely, however, in the complicated web of 
 history, a labyrinth of lines will cross each 
 other at a common point to mark out persons 
 
 1 Professor of Jurisprudence in Northwestern University. 
 vii
 
 Sutrotmctton 
 
 of great fortune or misfortune. Such was 
 the imagery adopted by an accomplished 
 novelist to explain his fatalistic views; and if 
 there be merit in this sprightly figure, we will 
 have no difficulty in conceiving an interesting 
 conjunction of favoring lines to explain the 
 brilliant career of Rudolph von Jhering. 
 
 One does not read far into jurisprudence 
 without encountering both his name and 
 his influence. He was a builder of new 
 roads, a maker of new tools, and a creator of 
 ideas. He came upon the world's stage as 
 the last great influence out of centuries of 
 struggle beginning with the revival of the 
 study of Roman law at Bologna, and the 
 successive stages of Glossators and Com- 
 mentators, "Mos Italicus" and "Mos Gal- 
 licus," the Practical School and Natural Law, 
 and finally the Historical School, to compose 
 the differences between Romanists and Ger- 
 manists, and to prepare the way for the 
 Civil Code. 1 
 
 1 For a full account of the development of German law, see "A 
 General Survey of (etc.) Continental Legal History" ("Continental 
 Legal History Series," Vol. i), Boston, 1912, p. 311 seq. 
 
 viii
 
 Sntrobuctton 
 
 Jhering, the son of a lawyer, was born at 
 Aurich on the shores of the North Sea, in 
 East Frisia, August 22, 1818. He studied 
 law at Heidelberg, and (after the established 
 custom of German students who wander 
 from one university to another) also at 
 Munich, Göttingen, and Berlin. He became 
 a "Privat-Docent" at Berlin in 1844 just 
 as Gustav Hugo, the founder of the His- 
 torical School which Jhering was later to 
 overthrow, laid down his labors in death. 
 He became ordinary professor at Basel 1845, 
 Rostock 1846, Kiel 1849, Giessen 1852, 
 Vienna 1868, and at Göttingen 1872, where 
 he remained until his death on September 
 7, 1892. 1 
 
 If Jhering had not become the most re- 
 nowned jurist of the second half of the last 
 
 1 The following sketches treat the life, character, and works of 
 Jhering more completely than can be here attempted: M. de Jonge, 
 "Rud. von Jhering" (1888); A. Merkel, "Rud. von Jhering" (1893) 
 (translated as an appendix to Jhering, "Law as a Means to an End") 
 ("Modern Legal Philosophy Series," Vol. v); Eck, "Zur Feier des 
 gedächtnisses von B. Windscheid und R. v. Jhering" (1893); Munroe 
 Smith, "Four German Jurists," Pol. Sc. Q., Vols, x, xi, xii. Refer- 
 ence may also be made to volume ii, in the "Continental Legal His- 
 tory Series," under the title "Great Jurists of the World from 
 Papinian to von Jhering." 
 
 IX
 
 Sntrobuctton 
 
 century, it is not unlikely that he would 
 have gained fame in any other calling where 
 personality, a comprehensive and lively dom- 
 ination of complex realities, or the literary 
 quality might play a part in the attainment 
 of success. The power of his personality 
 is attested by the fact of his great popularity; 
 his lectures were always crowded with listen- 
 ers; and his home was the shrine at which 
 the devoted from all quarters of the world 
 worshiped. Ideas were obliterated and men 
 effaced before him. Merkel, who himself 
 became a jurist of great fame, says that 
 after hearing Jhering lecture on Roman law, 
 the discourse of Vangerow became a closed 
 book. He was able to arouse great enthusi- 
 asm, to attract the multitude from within 
 and without the university, and to enliven 
 with bright colors the neutral themes of the 
 law. He could sway the world both by his 
 personal presence, and in no less degree by 
 his writings. It is natural to speculate as 
 to what might have been the career of such 
 a man if his labors had dealt not alone with
 
 3ntrotwctton 
 
 the learned public, but with the unorganized 
 and unthinking masses in issues more stirring 
 than the unemotional materials of legal 
 science. At a hospitable juncture he might 
 have created or subverted a dynasty. The 
 literary quality of Jhering's writing is well 
 shown in the opening lines of his "Geist," 
 which might be mistaken for the stately 
 measures of a sonorous epic. Another phase 
 is exhibited in the address here published. 
 Never before has a moral duty been asserted 
 with such eloquence; never before has a "lay 
 sermon addressed to the conscience" i been 
 more spontaneously and widely accepted. 
 Within two years this address went into 
 twelve editions, and although first published 
 in German more than forty years ago, it is 
 still being republished, the last German 
 edition being the eighteenth. At this time 
 
 1 Munroe Smith, "Four German Jurists," Pol. Sc. Q., xi, 301. 
 Prof. Smith heard Jhering lecture on Roman law, and his able essay- 
 therefore sounds an intimate note which adds to the value of his 
 analysis. This study also shows the dominating importance of 
 Jhering, and Prof. Smith's essay might well have been entitled 
 "Jhering and Three other German Jurists," for the others are only 
 as foils in the play. 
 
 XI
 
 Sntrobuction 
 
 it has appeared in nearly thirty different 
 languages, including Japanese. There have 
 been two translations into English, the present 
 rendering by Mr. Lalor first published by 
 Messrs. Callaghan & Co. in 1879, and a 
 version published at London in 1884 under 
 the title "Battle for Right." The present 
 work has even been the inspiration of a 
 novel by Karl Emil Franzos published (1882) 
 under the same German title. 
 
 The books of jurists do not usually come 
 within the mental range of the so-called 
 general reader; as a rule they are limited to 
 some definite system of law and to those 
 technically learned in that system. A large 
 part of Jhering's writings, however, carries 
 an interest uncircumscribed by geographical 
 boundaries, and has gained the widest re- 
 ception of perhaps any European jurist, not 
 alone among those learned in the law, but 
 also among the cultured lay classes. It is 
 not difficult to understand this fortunate 
 and unusual extension of Jhering's fame; for 
 it appears to rest on two chief grounds: 
 
 xii
 
 3lntrotiuction 
 
 first, that he treated by preference what 
 Austin has called pervasive legal ideas — 
 ideas of universal significance, ideas un- 
 limited by the accidents of history, or the 
 particularities of legal systems; and, second, 
 that he had the faculty of powerful literary 
 presentation. Jhering was a philosopher in 
 the law, if not of the law, and had he been 
 less, it is not unlikely that he would have 
 remained a national factor of limited im- 
 portance, instead of becoming an international 
 figure. 
 
 Comparative biography was a completely 
 realized art before comparative law was 
 even thought of; and writers who have dealt 
 with the lives of jurists have commonly re- 
 sorted to the comparative method. In the 
 case of Jhering the counter balance naturally 
 has been either Windscheid (who died in the 
 same year and within a few weeks of Jhering, 
 and whose span of life was almost identical 
 with his), or Savigny, the most conspicuous 
 representative of the Historical School. The 
 dissimilarities are striking in either case 
 
 xiii
 
 Untrobuction 
 
 whether we consider the contrasted figures 
 either from the point of view of personality, 
 method, or ideas. Savigny, aside from being 
 the leader of a great school, was the greatest 
 Romanist of the first half of the nineteenth 
 century. Jhering at the age of 24 had written 
 a doctoral study, "De hereditate possidente" 
 (Berlin, 1842), which already was considered 
 a "remarkable dissertation," and when in 
 1852 (at the age of 34) he published the 
 first volume of his "Geist," the star of 
 Savigny's genius paled in the glare of Jhering's 
 rising fame. 
 
 The theory of the Historical School, of an 
 unconscious growth of law, was contradicted 
 by Jhering, who insisted on conscious purpose 
 as the dominant factor of legal evolution. 1 
 
 Two observations may be permitted at 
 this point: first, that fundamental theories 
 in the science of law necessarily produce 
 
 1 Tanon, "L'Evolution du Droit et la Conscience Sociale" (3d 
 ed., Paris, 1911), p. 44 seq. This part of Judge Tanon's essay has 
 been translated as an appendix to Jhering, "Law as a Means," etc. 
 (see note p. ix, supra); Alessandro Levi, "Contributi ad una Teoria 
 filosofica dell' ordine giuridico," Sec. 34, p. 402 seq. 
 
 xiv
 
 Sntrofcuctton 
 
 important consequences either first or last 
 in any legal system. The legislative era 
 could not have come to pass so long as the 
 Historical School remained in the ascendancy. 
 If it is to be supposed that Savigny intended 
 to assert an irremediable lack of competence 
 in the people to attain the conscious stage 
 of legislation, then that distinguished jurist 
 was spared some part of the mental anguish 
 of witnessing the historical refutation of 
 such a position, had his life been prolonged 
 another quarter of a century. He himself 
 became Prussian minister for the revision 
 of legislation, and lived to see the formulation 
 of the General German Bills of Exchange 
 Code (1847) and the General German Com- 
 mercial Code (1861) in the time of the " Bund" ; 
 but a benignant fate closed his eyes before 
 the date of the imperial statute (1873) which 
 authorized a commission to codify the whole 
 domain of private law, resulting finally (1896) 
 in the enactment of the German Civil Code. 
 The second observation is that any asser- 
 tion of a simple unifying principle in the 
 
 XV
 
 Sntrobuctton 
 
 realm of causality is likely to assert too 
 much. It is entirely clear to us now that 
 there was an important element of truth in 
 the theory of an unconscious development of 
 law; it is equally apparent that the principle 
 of purpose is also true. The error lies only 
 in claiming an exclusive operation for either 
 theory of law. It is, however, one of the 
 most interesting phases of historical study 
 to trace out the actions and reactions of 
 ideas, and Jhering was a man who was able 
 to do this with a lofty and inspired outlook 
 on the manifold complication in the restless 
 flow of life. The ascending spiral of evolu- 
 tion of juristic thought is plainly visible, to 
 speak only of recent centuries, in the age of 
 rationalism with its revolutionary by-product 
 which gave way to an era of reactionary 
 conservatism in the Historical School, and 
 which later is supplanted by the epoch of 
 legislation and socialization of the law. But, 
 now, to attempt a simple generalization of 
 causality in history, even with our better 
 fortified knowledge, and in the light of an 
 
 xvi
 
 Sntrotmctton 
 
 accumulation of experience, would likely be 
 as dangerous and as inadequate as before. 
 It should be noticed that when we speak of 
 causality we enter the sphere of the historian 
 and jurist, provinces where Jhering attained 
 his surest fame. It is true that Jhering later 
 attempted the treacherous problem of finality 
 — a problem perilous even for the trained 
 philosopher — but it is believed that if he 
 had restricted himself to his earlier aspira- 
 tions that his labors would have remained a 
 standing monument of unquestioned juristic 
 scholarship throughout the corroding pro- 
 cesses of time. 
 
 Merkel makes an illuminating comparison 
 between Savigny and Jhering sufficient in 
 itself to explain the differences of character 
 of these two great civilians. 1 Savigny, he says, 
 retired to the shadows of his canvas. Both 
 were masters of expression, but Savigny hid 
 his personality behind his work, while Jhering 
 projected himself in living reality in every 
 line. He attempted, as Merkel again says, to 
 
 1 Op. cit. (p. ix note 1, supra), 
 xvii
 
 3ntrotJUCtton 
 
 carry his reader by storm. Savigny sheltered 
 himself in a mantle of reserve and directed 
 his forces of ideas from a sequestered distance, 
 while Jhering waged his battles on the firing 
 line and determined the issues of war by the 
 commanding aid of his conquering presence. 
 
 Of Windscheid, who was the great figure 
 at Vienna when Jhering was the chief attrac- 
 tion at Göttingen, we may speak again in 
 connection with a fundamental legal theory 
 which has turned out to be of the greatest 
 practical moment, and which has been a 
 point of great controversy in German legal 
 science for several decades. 1 Windscheid 
 defined rights from the standpoint of pro- 
 tection of the will, 2 while Jhering made 
 interests the essence of rights. The logical 
 consequences of Windscheid's view is a for- 
 mal, individualistic, and unhistorical concep- 
 tion of law; while Jhering's definition, on the 
 
 1 Gareis, "Introduction to the Science of Law" ("Modern Legal 
 Philosophy Series," i), p. 33. 
 
 2 "Recht ist eine von der Rechtsordnung verliehene Willensmacht 
 oder Willensherrschaft," — Windscheid, "Lehrbuch des Pandekt- 
 enrechts," 9th ed. (Kipp), 1906, erster Band, p. 156 (and note 3).
 
 Sntrotmction 
 
 contrary, leads to the exact opposites, and 
 invests the law with a positive social func- 
 tion. 1 Windscheid adhered to his position 
 to the last, but Jhering's view has attracted 
 the greater number of followers, and seems 
 more nearly to indicate the real nature of 
 rights as accepted by any of the present-day 
 schools of legal philosophy. 
 
 Without the notion of interests, formulated 
 by Jhering in the "Geist," he could not have 
 reached the conception of the "Zweck." 
 If rights are legally protected interests, it 
 follows that the State must determine what 
 interests it will select as fit for protection, 
 and this question then logically develops the 
 further inquiry of purpose in the law, which 
 Jhering stated in the form of the principle, 
 "the object is the creator of the law." On 
 this three-rung ladder of reasoning, he at- 
 tempted to ascend the philosophic heights, 
 and whatever may be thought of his efforts 
 it cannot be doubted that he laid a pragmatic, 
 
 1 Roscoe Pound, "The Scope and Purpose of Sociological Juris- 
 prudence," Harvard Law Rev., xxv, 2, 143; Korkunov, "Theory of 
 Law" (Hasting's tr.) ("Modern Leg. Phil. Ser.," iv), p. 107 seq.
 
 3ntrobuction 
 
 if not a metaphysical, foundation for a new- 
 juristic construction which enabled the law 
 to emerge from the blind alley into which it 
 had entered in following Kant. 
 
 It is perhaps still a question whether phi- 
 losophies create movements in the outer 
 world, or whether they only reflect or follow 
 these movements; but in any case the social 
 utilitarianism of Jhering came in season to 
 synchronize with the most significant develop- 
 ment of the law in modern times — the change 
 from the individual to the social emphasis. 
 Jhering's solution was not, however, the only 
 escape from Kant's blind alley. The Neo- 
 Kantians, too, have become social utilitarians, 
 but their State yet has the negative char- 
 acter of a "Rechtsstaat." Stammler, the 
 leading exponent of a revised Kantianism, 
 is unable to lay down a single positive prin- 
 ciple to govern the attitudes of the law. The 
 difference between "do not" and "do" is all 
 that separates the civilizations of the Orient 
 and Occident, and a system of legal phi- 
 losophy which makes the function of the State 
 
 XX
 
 Sntrobuctton 
 
 no different from that of a street-crossing 
 policeman can never be productive of any- 
 thing less unprogressive than a Chinese 
 system of law. Even with its philosophic 
 and psychological shallowness, the "Zweck" 
 of Jhering is therefore to be preferred over 
 the "Richtiges Recht" of Stammler. 
 
 Compared with an encyclopedic creator 
 like Köhler, who many years ago engaged in a 
 typically German exchange of ideas with 
 Jhering in connection with the Shylock prob- 
 lem raised in this work, 1 but who has lived 
 to supplant Jhering in the kingdom of fame 
 and take unto himself the extraordinary 
 distinction of the world's juristic leadership, 
 the latter's works are not extensive beyond 
 expectation either in bulk or item. 
 
 Briefly, Jhering's works are the following: 
 (1) "Abhandlungen aus dem römischen 
 Recht" (1844); (2) " Civilrechtsf alle ohne 
 Entscheidungen" (1847); (3) "Geist des 
 römischen Rechts auf den verschiedenen 
 
 1 Kohler, "Shakespeare vor dem Forum der Jurisprudenz," 
 (Würzburg, 1883), and "Nachwort" (1884). 
 
 xxi
 
 Sntrotmctton 
 
 Stufen seiner Entwicklung" (4 vols., 1852— 
 65); (4) "Das Schuldmoment im römischen 
 Privatrecht" (1867); (5) "Über den Grund 
 des Besitzeschutzes" (1868); (6) "Die Juris- 
 prudenz des täglichen Lebens" (1870); (7) 
 "Der Kampf ums Rechts" (1872) (the present 
 work); (8) "Der Zweck im Recht" (2 vols., 
 1877-83); (9) "Vermischte Schriften juris- 
 tischen Inhalts" (1879); (10) "Gesammelte 
 Aufsätze" (3 vols. 1881-86); (11) "Das 
 Trinkgeld" (1882); (12) "Scherz und Ernst in 
 der Jurisprudenz" (1885); (13) "Der Besitz- 
 wille: Zugleich eine Kritik der herrschenden 
 juristischen Methode" (1889); and posthu- 
 mously: (14) "Vorgeschichte der Indo-Euro- 
 päer" (1894); (15) "Entwickelungsgeschichte 
 des römischen Rechts: Einleitung" (1894). 1 
 
 1 Jhering has been fortunate above all his jurist contemporaries 
 in a wide and important extension of his writings into foreign tongues. 
 The "Geist" (No. (3) ), and several of his other works have been 
 translated into French; there has also been an Italian translation of 
 the "Geist," and further translations based on the French, into 
 Portuguese, Spanish, and Japanese. Although no European jurist 
 is better known in America or England than Jhering, there has un- 
 fortunately been no English translation of this work, parts of which 
 are of great importance for what Austin calls "general," and what 
 Salmond styles "theoretical" jurisprudence. 
 
 The "Jurisprudenz" (No. (6) ) according to the author's preface 
 
 xxii
 
 3Jntrobuctton 
 
 Jhering labored diligently until the last, 
 and although more than seventy years of age 
 at his death, he left behind him many things 
 in preparation, unaccomplished. His im- 
 pulse to create was boundless; each idea 
 developed a series of more general ideas, and 
 his physical body was unable to keep pace 
 with his mental activity. For this reason, 
 his chief works are admittedly only fragments. 
 
 to the eighth edition (1891) had been then already translated into 
 Italian, Hungarian, Greek, and (in abridged form) into Portuguese. 
 An English translation has been done by Henry Goudy (Oxford, 
 1904). This work is considerably used by teachers to good ad- 
 vantage; the present writer has found it useful in examinations in 
 analytical jurisprudence. Jhering's keen sense of legal realities is 
 here shown developed to the highest degree. No one but a man 
 thoroughly saturated with the feeling of the omnipresence of the law 
 and legal relations would think of raising the question whether a 
 guest at a hotel can take away the candles with which he has been 
 charged, or whether he can put into his pocket fruit served at the 
 dinner table (Goudy's translation, p. 24). Dr. Wigmore, dean of 
 Northwestern University School of Law, perhaps, under the sug- 
 gestion of this notable use of the incidents of everyday life, has 
 published in his casebook on torts a collection of instances very 
 similar in their novelty, interest, and analytical value. 
 
 The "Zweck" (No. (8) ) has been translated into French and the 
 first volume is soon to be issued [now out] in an English translation of 
 Dr. Isaac Husik of the University of Pennsylvania ("Modern Legal 
 Philosophy Series," Vol. v), by The Boston Book Company. This 
 translated volume will contain valuable introductory material which 
 the present writer regrettably was not able to consult. 
 
 Legal humor is an ancient institution; it is the agency which 
 humanizes the bloodless operations of the legal machine. Even the 
 Olympian gods indulged their levities, and did not narrow themselves 
 
 xxiii
 
 Sntrobuction 
 
 The "Geist" remained uncompleted when he 
 conceived the "Zweck," and the latter work 
 was only a part of his plan to treat the whole 
 domain of the normative divisions of social 
 life. The present work was a fragment thrown 
 off in the development of the "Zweck." 
 
 Of Jhering's achievement the "Geist" will 
 no doubt be permanently regarded as his 
 
 to councils of lightnings and thunderbolts. Juristic humor, how- 
 ever, is something quite unknown in our literature. The nearest 
 approach, to take a recent example, is Sir Frederick Pollock's "Genius 
 of the Common Law," a work dealing with the strains and thrusts of 
 our legal system. The chapter entitled "Surrebutter Castle" shows 
 what a lighter touch may do with such a recondite and bitter subject 
 as special pleading. But Sir Frederick's humor in comparison with 
 von Jhering's is always somewhat Saturnine, or, even from another 
 point of view, Euclidean. Jhering's contribution to this form of 
 writing is his "Scherz und Ernst" (No. (12) ) which is made up of 
 anonymous articles published while he was at Giessen, and "Talks of 
 a Civilian" published at Vienna. The vehicle is one of amiability, 
 but the theme is a serious one for the law. It may be considered a 
 loss to us that this work is not in English, since the problems raised 
 there are just now of special interest in view of the widespread 
 changes which are giving an entirely new character to the whole 
 face of the Common Law. 
 
 Of the remaining works the "Vorgeschichte" (14) has also been 
 translated into English. This work has not added anything to 
 Jhering's fame, and it may be questioned whether he had suffi- 
 ciently familiarized himself with the extensive range of working 
 materials upon which such an ambitious undertaking should of 
 necessity be founded. This work therefore in the field of universal 
 history is defective for the same reason as the "Zweck" in the 
 department of general philosophy, in that it attempted problems 
 beyond the author's special knowledge and experience.
 
 Kntrobuctton 
 
 greatest effort. 1 When it began to be pub- 
 lished, Rudorff, a civilian of the Historical 
 School, referred to it in terms of reproach 
 in his "History of Roman Law" (1857-59); 
 but this reflection was one of the last feeble 
 groans of an expiring and superseded theory of 
 law. How frequently a fond parent is unable 
 to judge impartially and justly of his own 
 children is shown in the history of literature. 
 Jhering rated his "Zweck" far above his 
 "Geist," and could he have realized that the 
 judgment of posterity would be otherwise, it 
 would no doubt have been for him a matter of 
 keen disappointment even though his preface 
 to the "Zweck" foreshadows the result. 
 
 Jhering's creative period may be divided 
 conveniently into two parts, taking his fiftieth 
 year as the point of separation. The works 
 of the earlier period are distinctly to be 
 preferred against the labors of his later years. 
 Although there seems to have been no abate- 
 ment of his dynamic force in the growth of 
 
 1 But cf. Berohheimer, "The World's Legal Philosophies" (Mrs. 
 Jastrow's ir.) ("Mod. Leg. Phil. Ser.," ii), p. 337 seq. 
 
 XXV
 
 Sntrobuctüm 
 
 years, there is apparent a gradual declina- 
 tion in the sound value of their fruits. His 
 posthumous writings are decidedly in con- 
 trast, and to their disadvantage, with the 
 studies of his earlier years. 1 He rose up out 
 of a national law to an universal law, but as 
 his ideas became more general they also at 
 the last became more tenuous. As a realist 
 confining himself to facts which he apprehend- 
 ed with the intuition of genius, and dealing 
 with "practica" he was incomparable; but 
 when he attempted the flight into an alien 
 country he left behind him the substantial 
 products of a vigorous and fertile intellect to 
 enter a domain as empty as the "Begriffs- 
 himmel" created by him for the Romanists. 
 
 Jhering's claim to great distinction may be 
 said to rest, in summary, on the following 
 grounds : 
 
 1. He universalized Roman law, approving 
 at once its reception, and the changes which 
 had been made in it in the middle ages, and 
 thus took a middle ground which compromised 
 
 1 See. Posener, "Rechtslexikon," i, s. v. "Jhering."
 
 3Jntroi)uction 
 
 in effect the rigid nationalism of the Historical 
 School and the patriotic clamors of the Ger- 
 manists. The Romanists would have imposed 
 upon the country the Byzantine law, while 
 the Germanists would have destroyed it 
 root and branch. Jhering's attitude in this 
 controversy is shown by the fact that jointly 
 with Gerber, a Germanist, he founded (1856) 
 a journal for the study of the dogmatic of 
 modern Roman and German private law. 
 This conflict between the law of a foreign and 
 extinct empire and the living domestic cus- 
 toms was a heritage of centuries; and while 
 the perpetual struggle had somewhat abated, 
 credit is due to Jhering for throwing the weight 
 of his influence in the direction of the only 
 practical and possible solution of Germany's 
 effort to attain a unified system of law. 
 
 2. He is the founder of modern legal realism, 
 and the progenitor on the juristic side, as 
 Comte is the ancestoron the philosophical side, 
 of the Sociological School of Jurisprudence. 
 
 Jhering was a bitter (if not always con- 
 sistent) enemy of the subjective; this appears
 
 3ntrotmction 
 
 when he opposes, in his great work on posses- 
 sion, Savigny's animus theory; 1 in his con- 
 ception of rights when he rejects the will 
 as the central factor; in legal method, when 
 he sets up a jurisprudence of facts against 
 a jurisprudence of concepts. The cultivation 
 of Roman law had developed into a deductive 
 process of legal reasoning which sought to 
 make the realities of later centuries and al- 
 tered circumstances of elapsed time fit ar- 
 bitrarily the verbal form of ideas of the age 
 of Paulus. 2 But yet Jhering was not the 
 enemy of the subjective in his treatment of 
 legal evolution since this evolution itself is 
 the expression of purpose. Law is not only 
 teleological but psychological. The psychol- 
 ogy of legal institutions, however, must have 
 a factual basis, and can not be confined, he 
 insists, to a purely conceptual and unhistorical 
 system of ideas governed by fixed logical 
 constructions. 
 
 1 Munroe Smith, op. cit.; Salmond, "Jurisprudence," 3d ed., 
 p. 263 seq.; Holland, "Elements of Jurisprudence" (11th ed.), p. 196 
 seq. 
 
 2 Sternberg, "Allgemeine Rechtslehre," erster Teil, p. 191 seq. 
 
 xxviii
 
 HJntrofcuctton 
 
 It can hardly be claimed that Jhering was 
 the first to raise the enduring problem of 
 legal method, but never before or since has 
 the purely conceptual method been assailed 
 with greater vigor or efficacy. Jhering's 
 chief merit here lies in his having brought this 
 question into clear relief and in having ad- 
 vanced the teleological factor which resides 
 in all legal rules. Neither the "Geist" nor 
 the "Zweck" contains a minute and thor- 
 oughgoing analysis of the problem of legal 
 logic, and the "Scherz" was much too literary 
 in quality to furnish a solution. Jhering 
 combated the over-extension of the conceptual 
 process, but the ardor of satirical attack did 
 not permit him to examine to find the boun- 
 daries of its necessary and justifiable operation. 
 Nor does an inspection of the later literature 
 of legal method disclose, in German literature 
 at least, except in a few noteworthy instances, 
 that the weapons of offense have been melted 
 down to implements of husbandry. 1 
 
 1 See in this connection, Gnaeus Flavius (Kantorowicz), "Der 
 Kampf um die Rechtswissenschaft" (1906), and the authorities 
 entered on p. 50. The realistic trend of thought which had its 
 
 xxix
 
 Sntrotmction 
 
 3. Lastly (passing over Jhering's un- 
 questioned prominence as an historian of the 
 Roman law, his authority on various special 
 questions of dogmatic law, and his strictly 
 professorial labors), Jhering's great claim to 
 distinction is due, as already suggested, to 
 his treatment of the nature of legal rights by 
 which he established the juristic basis for a 
 social reconstruction of legal institutions. 
 His own interpretation of the test of legis- 
 lative policy — social utility — may be re- 
 jected as amorphous, as a "mollusk of ideas," 
 without derogating from the value and great 
 practical importance of his original discovery. 
 Unless it must be said that the world moves 
 on regardless of the thoughts of legal scientists 
 and legal philosophers, it is inconceivable 
 that civilized States could have broken the 
 barriers of the eighteenth century without 
 
 origin in Jhering's war on the concept jurisprudence is now known 
 in Germany under the name of "freie Rechtsfindung" after Ehrlich's 
 book of that title. Strangely enough, this tendency in legal method 
 has attracted representatives from the most diverse positions in 
 legal philosophy. 
 
 XXX
 
 Sntrobuctton 
 
 the lever of Jhering's idea. Little imagination 
 is needed to portray a horrible distortion of 
 social life under the pressure of learning and 
 invention of the last hundred years, operating 
 within the rigid mould of a "laissez faire" 
 theory of law, government, and economics. 
 On this count, and without reference to what- 
 ever else he achieved or conceived, Jhering is 
 deservedly entitled to a leading place among 
 the world's creative jurists. 
 
 Of the present work, it may perhaps with 
 considerable justice still be said as was 
 claimed by a competent reviewer on the 
 appearance of the first edition of this trans- 
 lation, 1 that it is "the most brilliant, original, 
 and significant book on the genesis and de- 
 velopment of law since Montesquieu"; but 
 it may be asserted with less provocation to 
 challenge that it is one of the most famous 
 specimens of juristic writing that the world 
 has ever seen. The introducer may, however, 
 be permitted to venture two brief comments : 
 
 lAlbany Law Journal, xx, 444 (1879).
 
 Sntrotiuctton 
 
 (1) a moral duty in the assertion of rights is an 
 undemonstrable proposition; 1 and (2) irrita- 
 tion arising from an infringement of one's 
 
 1 There need no ghost from the grave come to tell us that Jhering's 
 proposition of a duty to maintain one's rights before the law has 
 certain affinities with the doctrine that it is the right and the duty of 
 States to make war. The same biological arguments support both 
 points of view. Such militant programs to be thoroughly consistent 
 must regard as undesirable all agencies which substitute for the 
 wounds and destruction of the combat. In the struggle for rights, 
 even the State itself, from this standpoint, must be considered a 
 biological obstruction. Those who assert the moral right and neces- 
 sity of nations to make war to serve their interests, do not hesitate to 
 say that "law is the weakling's game." Jhering as a lawyer prob- 
 ably could not have accepted a principle so far-reaching and revolu- 
 tionary, even at the risk of being inconsistent for his hesitation. 
 Yet the only state of society wherein his ethical duty of self-assertion 
 could be imagined to have any validity is one of political non-inter- 
 ference. In the primitive days of private vengeance such a theory 
 probably would need no qualifications; but as soon as the State ceased 
 to be a mere military machine, and found it expedient to interfere in 
 private quarrels in the interests of peace, the biological argument 
 became less clear and the moral aspect of the question more doubtful. 
 For the ritualistic trial ceremonies of early law were not the same as 
 the blood feud either biologically or ethically. At any rate, even 
 though the litigant fought his own legal battles, and would not at 
 that day, as a matter of honor, indulge the unmanly ease of a lawyer 
 to speak for him, earthly and supernatural hazards had intervened 
 which sometimes thwarted the bristling demands of courage. And 
 now, in the modern age, when the State seeks to do justice between 
 the parties, the hazards of litigation have become still more complex 
 and fruitful. The modern court is little like the tribal assembly, and 
 one now will hardly seek the law-courts to vindicate his courage or to 
 promote his honor. A sad chapter could be written on the manner 
 in which the State has discouraged the taste for litigation. We have 
 only to think in this connection, among a number of things, of the 
 
 xxxn
 
 aJntrobuction 
 
 rights may sometimes be more effectively 
 manifested than by procedural methods. 2 
 
 Albert Kocourek 
 Northwestern University. 
 
 dishonored position of the witness which has become a factor of no 
 little importance in making a resort to law unpopular, of the sensa- 
 tional press accounts, and of the machine patterned course of litiga- 
 tion. It is unlikely that any device except a simple reversion to 
 primitive justice could bring out the spirit of self-assertion which has 
 departed from the law and sought other channels of expression. 
 
 2 Even commercial litigation is seeking an escape from the delays 
 and difficulties of justice. It must be clear, therefore, that the 
 procedural situation offers no advantages to purely ideal reactions 
 against what the author calls subjective injustice. But there is a 
 deeper reason which impels self-assertion to seek either the path of 
 "club-law," or, more likely, silence. When Jhering composed this 
 address (1872) he could hardly have foreseen the centralization of 
 trade, industry, credit, and population which has within the last 
 decades revolutionized the earth. In ancient society individual 
 rights were submerged in the activities of the group. Personality 
 has never been quite as well protected by the law as the claims of 
 property; but when Jhering wrote, rights of individual persons had 
 already reached their highest point in an evolution of many cen- 
 turies. If anything can be predicted safely of the future one may, 
 perhaps, say that the individual is again rapidly on the way to the 
 loss of his identity. The modern world with its systems, its effi- 
 ciencies, and its pragmatisms (and we say it with regret) is crushing 
 down the picturesque freedom and initiative of the individual. It 
 will require another era to restore him to the position to which Jhering 
 would have exalted him. 
 
 XXXlll
 
 Cranölator'ö Matt 
 
 HE following extract is from the 
 preface to the French translation 
 of Dr. von Jhering's essay. The 
 author, in the course of his work, 
 refutes the Savigny-Puchta theory of the 
 origin of the law. To explain that theory 
 more fully, he furnished the following to the 
 French translator: 
 
 "Scarcely was Germany free from the wars 
 of Napoleon I, than the desire to see the laws 
 of the nation reduced to a code was mani- 
 fested, and Thibaut, one of the most renowned 
 legists of the period, publicly employed his 
 eloquence to promote that end. There was 
 nothing surprising in the fact that this wish 
 did not find the least favor among the princes 
 and governments of Germany. They were 
 only too well aware of the necessity in which 
 their interest placed them to preserve, as
 
 CransHator'ö j£ote 
 
 far as possible, the existing confusion, both 
 political and judicial, of the country. What 
 was most to be wondered at, was that German 
 lawyers who, it seems, should have had only 
 one opinion on this subject, protested against 
 this attempt, through the agency of one of 
 their most illustrious representatives, Savigny, 
 who, in support of this protest, published 
 under the title: 'Vom Beruf unsrer Zeit für 
 Gesetzgebung und Rechtswissenschaft,' (Ber- 
 lin: 1814; 3d edition, 1840), a work not, in- 
 deed, very voluminous, but one of the most im- 
 portant in the history of German jurispru- 
 dence. Savigny's object was to represent as 
 unreasonable the desire of reducing the laws to 
 a code. Collections of that kind, Savigny said, 
 were after all more of an evil than a good. 
 They are not thought of in happy times, 
 because they are not necessary. Rome is an 
 example of this (as if the laws of the XII. 
 Tables and the Praetorian Edicts never had 
 existed), and in unhappy times (like those in 
 which he lived), people possess neither the 
 necessary political education nor the ability 
 
 xxxvi
 
 Cranölator'ö J^ote 
 
 required for such an enterprise; and he en- 
 deavored to prove his assertion by isolated 
 passages drawn from Prussian, Austrian and 
 French legislation of that period. 
 
 "The irony of fate decreed that the corona- 
 tion of his pupil and protector, William IV, 
 should afford him the opportunity to exchange 
 the professor's chair for the chief position in 
 the Department of Justice, especially created 
 for him. Savigny, the theorizer and opponent 
 of legislation, had the weakness to accept the 
 post, and he found the means to demonstrate 
 fully what he called: 'the want of calling of 
 our own time for legislation,' when the regula- 
 tions relating to letters of exchange, and the 
 German commercial code which appeared 
 almost in the same epoch, strikingly dis- 
 proved his assertion. 
 
 "The theory which he advanced on this 
 occasion on customary law and legislation 
 was not entirely new, but it is Savigny's merit 
 to have presented it in its scientific light, 
 and thus to have given it a claim to be called 
 science. According to this theory, the earliest 
 
 xxxvii
 
 ^ranölator'ö j£ote 
 
 law has been, the world over, the law of cus- 
 tom. This law has neither been created nor 
 sought for. It came into existence of itself, 
 just as language came, and developed inter- 
 nally, in the convictions of the people, exter- 
 nally in the order of life. This law of custom 
 is the natural form of all law, in the presence 
 of which legislation is something artificial, 
 mechanical, an encroachment into the order 
 of nature. The legislator is, so to speak, to 
 the law of custom what the physician is to 
 nature. Nature should help itself; the phy- 
 sician should interfere as seldom as possible; 
 for his very presence shows that the normal 
 condition is disturbed and that disease exists. 
 "Thus Savigny entirely reverses the true 
 relation established by the old teaching be- 
 tween legislation and the law of custom. With 
 him, the law of custom comes first, and legis- 
 lation afterwards. Why? — we ask in won- 
 der. The author gives us no reason but his 
 preconceived opinion, according to which 
 such was the primitive condition of things. 
 As the ancient institutions of the Romans 
 xxxviii
 
 QTranöiator'ö j£ote 
 
 could not be traced to legislative acts, Savigny 
 concludes that they came into existence of 
 themselves. Might we not with equal reason, 
 maintain that the man who cannot tell who 
 his great-grandparents were, had none? Here 
 is the cause of this error. The memory of 
 the origin of legal principles is lost in the 
 course of centuries. That which, at first, it 
 was necessary to go in search of, to obtain by 
 struggling for, acquires by long use, a moral 
 authority over minds, so great, and an exter- 
 nal fixedness such, that it seems quite natural 
 that it should have been always in force. 
 Such is the mirage which deceived Savigny. 
 His theory has no other basis, and it has been 
 possible only because the earliest time does 
 not tell us how the principles of law came into 
 existence. If, as became the representative 
 of the Historical School, Savigny had framed 
 his theory of the relation of legislation to 
 the law of custom in accordance with history 
 which affords certain information on this 
 question, he would have seen that the opinion 
 then admitted, and to which he attached so 
 
 xxxix
 
 {Eranölator'ö J^ote 
 
 little importance, was entirely true, that 
 legislation is the normal source of law, and 
 that the law of custom is simply a secondary 
 and limited source of action. This opinion 
 went too far only in the sense that it ascribed 
 too much to the power of legislation. And, 
 indeed, the omnipotence of the legislator was 
 an article of the creed of the absolutism which 
 governed in the seventeenth and eighteenth 
 centuries. It was believed that all that was 
 needed to change the very nature of things 
 was a decree from high places, and juris- 
 prudence itself shared this belief in the omnip- 
 otence of legislation. In this sense, Savig- 
 ny's opposition to the admitted doctrine was 
 most legitimate and beneficent, but this was 
 not sufficient warrant to ignore the possibility 
 and efficiency of a codification, and that 
 great man in combatting an exaggerated 
 doctrine fell into another and contrary exag- 
 geration. 
 
 "His theory was developed and presented 
 in detail in a work written in 1828, by Puchta, 
 one of his most illustrious partisans." 
 
 xl
 
 {Eranölator'ö J^ote 
 
 That what Dr. von Jhering says of the 
 origin of the law in general is true of the 
 origin of the common law will scarcely be 
 questioned; and we may therefore venture to 
 say that this little work is likely to prove as 
 instructive to the common law lawyer as 
 to the student of Roman law. The " practico- 
 ethical" question which it discusses is one 
 not of times or places. It is as urgent in 
 America as in Austria, and especially deserv- 
 ing of attention in the United States at the 
 present time. 
 
 JOHN J. LALOR. 
 
 xli
 
 &utf)or'ö preface 
 
 to tfje Jfiftit Coition 
 
 JN 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, materi- 
 ally enlarged, under the title: "The Struggle 
 for Law." In its latter form, it was intended 
 not for lawyers only, but for the general read- 
 ing 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 cultiva- 
 tion of the state of mind from which the law 
 must ultimately derive its strength, viz.: the 
 courageous and constant exercise of the feel- 
 ing of right. 
 
 Two months after the appearance of the 
 
 xliii
 
 gutfjor'a ißreface 
 
 first edition, a second became necessary; dur- 
 ing 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 advo- 
 cated 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: 
 
 xliv
 
 gutfjor'ö preface 
 
 1. A Hungarian, by G. Wenzel. Pesth. 
 
 2. A Russian, by an anonymous person, 
 in a legal periodical published in Mos- 
 cow. 
 
 3. A second Russian translation, by Wol- 
 koff, 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. Copen- 
 hagen. 
 
 11. A Bohemian, anonymously. Brunn. 
 
 12. A Polish, by A. Matakiewiez. Lem- 
 berg. 
 
 13. A Croatian, by H. Hinkovic. Agram. 
 
 xlv
 
 &utf)or'ö preface 
 
 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 meagre- 
 ness 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 pro- 
 fession, to have omitted all those parts in- 
 tended 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 
 
 xlvi
 
 gutfjor'ö preface 
 
 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 inter- 
 est 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." 1 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 
 
 1 Kant, "Metaphysiche Anfangsgründe der Tugendlehre." Aufl. 2. 
 Kreuznach: 1800. S. 133. 
 
 xlvii
 
 gutyor'ö -preface 
 
 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 expres- 
 sion in a thousand ways. The only merit 
 I can claim is that I have more fully devel- 
 oped 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 
 
 xlviii
 
 glutfjor'tf preface 
 
 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 sur- 
 render of one's rights are not always incom- 
 patible 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 ques- 
 tion 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 exist- 
 ence 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 
 
 xlix
 
 gutfjor's preface 
 
 satisfied with superficiality, the mark of mud- 
 dled 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 him- 
 self 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 other- 
 wise 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 
 
 1
 
 gutfjor'ö preface 
 
 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, recog- 
 nizes 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 author- 
 ized him to do, the same judge who had 
 solemnly recognized his rights, renders those 
 
 li
 
 gutfjor'a preface 
 
 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. 
 
 Hi
 
 W$t Struggle for Hato
 
 Cfje Struggle for £ato 
 
 CHAPTER I 
 ORIGIN OF THE LAW 
 
 HE 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 com- 
 pelled 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 ob- 
 tains 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-
 
 Cfje Struggle for Hato 
 
 ness 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.
 
 origin of tfje Hato 
 
 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;
 
 Cfje Struggle for Hato 
 
 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 pe- 
 riod 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.
 
 origin of tfje Hato 
 
 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. 
 
 5
 
 Wqt Struggle for Xato 
 
 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 opposi- 
 tion. 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 
 
 6
 
 origin of tfje 3lato 
 
 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 prin- 
 ciples 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. Ac- 
 cording 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
 
 Cfje Struggle for Hato 
 
 jurisprudence calls for no strife, no struggle. 
 It is not even necessary, according to this 
 theory, to go in search of them, for the prin- 
 ciples 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 expres- 
 sion by their acts: a new principle of juris- 
 prudence comes into being with as little 
 trouble as any rule of grammar. The prin- 
 ciple 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 posses- 
 sion 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 cum governs the ab- 
 lative 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 
 
 8
 
 origin of tfje Hato 
 
 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 inter- 
 course 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
 
 Cfje Struggle for Hato 
 
 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 ex- 
 ceedingly 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 
 
 10
 
 origin of tfje Xato 
 
 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 oppos- 
 ing 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 inertice which pre- 
 serves their life, but the power of resistance 
 of the interests centering about their exist- 
 ence. 
 
 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 
 
 ii
 
 &fje Struggle for Hato 
 
 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 individ- 
 uals 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 con- 
 science, 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 
 
 12
 
 «origin of tfje Hato 
 
 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 there- 
 fore 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 
 
 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 uncon- 
 sciously 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, 
 
 13
 
 GTfje Struggle for Hato 
 
 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 max- 
 im, however, it contains an error pregnant 
 with the most ominous consequences imagi- 
 nable, 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
 
 origin of tfje Hato 
 
 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 dis- 
 covering 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
 
 Cijc Struggle for Hato 
 
 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 con- 
 trary, and not alone that small part of that 
 reality which we have before our eyes our- 
 selves, and which presents us, almost every- 
 where, 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 
 
 16
 
 origin of tfje Hato 
 
 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, frank- 
 ness, 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 unassist- 
 ed 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 genera- 
 tions can scarcely expect to be credited now. 
 For my part, I am convinced that the labor 
 
 17
 
 GHje Struggle for Hato 
 
 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 afford- 
 ed 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. 
 
 And why should we complain that it is 
 thus attended? The very fact that their 
 law does not fall to the lot of nations without 
 trouble, that they have had to struggle, to 
 battle and to bleed for it, creates between 
 nations and their laws the same intimate
 
 origin of tfje lato 
 
 bond as is created between the mother and 
 her child when, at its birth, she stakes her 
 own life. A principle of law won without 
 toil is on a level with the children brought 
 by the stork: what the stork has brought, the 
 fox or the vulture can take away again. But 
 from the mother who gave it birth, neither 
 the fox nor the vulture can take the child 
 away; and just as little can a people be de- 
 prived of the laws or institutions which they 
 have had to labor and to bleed for, in order 
 to obtain. We may even claim that the 
 energy and love with which a people hold to 
 and assert their laws, are determined by the 
 amount of toil and effort which it cost them 
 to obtain them. Not mere custom, but 
 sacrifice, forges the strongest bond between a 
 people and their principles of legal right; and 
 God does not make a gift of what it needs to 
 the nation He wishes well, nor does He make 
 the labor necessary to its acquisition easy, but 
 difficult. In this sense, I do not hesitate to say : 
 The struggle needed by laws to fight their way 
 into existence is not a curse, but a blessing. 
 
 19
 
 CHAPTER II 
 THE LIFE OF THE LAW A STRUGGLE 
 
 NOW turn to the real subject of my 
 essay — the struggle for concrete 
 law. This struggle is provoked by 
 the violation or the withholding of 
 legal rights. Since no legal right, be it the 
 right of an individual or of a nation, is guarded 
 against this danger, it follows that this struggle 
 may be repeated in every sphere of the law — 
 in the valleys of private law, as well as on the 
 heights of public and international law. 
 War, sedition, revolution, so-called lynch- 
 law, the club-law, and feudal law of the middle 
 ages, and the last remnant of it in our own 
 times, the duel; lastly, self-defense, and the 
 action at law — what are they all, spite of the 
 difference of the object striven for and of the 
 thing which is staked, of the form and dimen- 
 sions of the struggle — what but forms and 
 
 21
 
 Wqz Struggle for Xato 
 
 scenes of the one same drama, the struggle 
 for rights, the struggle for the principles of 
 law? If now, of all these forms, I choose the 
 least violent, the legal struggle for individual 
 rights in the form of an action at law, it is 
 not because it has for jurists a higher inter- 
 est than any other, but because, in a trial at 
 law, the real nature of the case is most sub- 
 ject to the danger of being ignored both by 
 jurists and the laity. In all other instances 
 this real nature of the case appears in all its 
 clearness. That in all other instances there 
 is question of wealth or goods which warrant 
 and repay great risk, even the dullest mind 
 understands, and no one will, in such instances, 
 raise the question: Why fight; why not rather 
 yield? The magnificence of the sight of the 
 highest display of human strength and sacri- 
 fice irresistibly carries all of us along with it 
 and lifts us to the height of ideal judgment. 
 But, in the struggle for individual private 
 rights, just mentioned, the case is very differ- 
 ent. The relative smallness of the interests 
 with which it is concerned — uniformly the 
 
 22
 
 Cfje Htfe of tfje Hato a ^truggle 
 
 question of mine and thine, the dull prosiness 
 which uniformly attaches to this question — 
 makes of this struggle, it would seem, simply a 
 matter of cold calculation and sober contem- 
 plation; and the forms in which it moves (the 
 mechanical routine of litigation, with the ex- 
 clusion of all free, individual action and of the 
 claimant himself) are ill calculated to weaken 
 the unfavorable impression. However, even 
 in the case of the action at law, there was a 
 time when the parties to the action themselves 
 were called on to enter the lists, and when the 
 true meaning of the struggle was thus made 
 to appear. While the sword still decided the 
 controversy concerning mine and thine, when 
 the medieval knight sent the challenge to his 
 opponent, even the non-participant may have 
 been forced to surmise that, in the struggle, 
 there was question not only of the value of 
 the thing, of averting a pecuniary loss, but 
 that the person, in the thing, defended him- 
 self, his rights and his honor. 
 
 But we shall not need to conjure up a con- 
 dition of things long past and vanished to 
 
 23
 
 Cfce Struggle for Hato 
 
 discover from it the meaning of that which, 
 even if different in form, is in essence the 
 same to-day. A glance at the phenomena of 
 our actual life and psychological self-obser- 
 vation will perform the same service for us. 
 
 Whenever a person's legal right is violated, 
 he is placed face to face with the question, 
 whether he will assert his right, resist his 
 opponent — that is, engage in a struggle; or 
 whether, in order to avoid this, he will leave 
 right in the lurch. The decision of this 
 question rests entirely with himself. What- 
 ever his answer to the question may be, some 
 sacrifice accompanies it in both cases. In the 
 one case, the law is sacrificed to peace; in 
 the other, peace is sacrificed to the law. 
 Hence, the question seems to formulate itself 
 thus: Which sacrifice, according to the indi- 
 vidual circumstances of the case and of the 
 person, is the more bearable? The rich man 
 will, for the sake of peace, sacrifice the amount 
 in controversy, which to him is insignificant; 
 and the poor man, to whom this same amount 
 is comparatively great, will sacrifice his peace 
 
 24
 
 Cfce Hife of tfje Hato a Struggle 
 
 for its sake. Thus would the question of 
 the struggle for the principles of law reduce 
 itself to a simple problem in arithmetic, in 
 which advantage and disadvantage are 
 weighed one against the other, by each side, 
 and the decision thus reached. 
 
 But that this is really by no means the 
 case, every one knows. Daily experience 
 shows us cases at law in which the value of 
 the object in controversy is out of all propor- 
 tion to the prospective expenditure of trouble, 
 excitement, and money. No one who has 
 dropped a dollar into a stream will give two 
 to get it back again. For him, indeed, the 
 question, how much he will expend upon its 
 recovery, is a simple problem in arithmetic. 
 But why does he not go through the same 
 process of calculation when he contemplates 
 a suit at law? Do not say that he calculates 
 on winning it, and that the costs of the suit 
 will fall upon his opponent. Every lawyer 
 knows that the sure prospect of having to pay 
 dearly for victory does not keep many per- 
 sons from suing. How frequently it happens 
 
 25
 
 Wtt Struggle for Hato 
 
 that the counselor who exposes to a client 
 the badness of his case and dissuades him 
 from suing receives for answer: Bring suit, 
 cost what it may! 
 
 How explain this mode of action which, 
 from the standpoint of a rational estimation of 
 material interests, is simply senseless? 
 
 The answer usually given to this question 
 is well known. It is, we are told, the miser- 
 able mania for litigation, the pure love of 
 wrangling, the irresistible desire to inflict 
 pain on one's opponent, even when it is 
 certain that one will have to pay for it more 
 heavily than one's opponent. 
 
 Let us drop the consideration of the contro- 
 versy between two private persons, and in 
 their place put two nations. The one nation, 
 let us suppose, has, contrary to law, taken 
 from the other a square mile of barren, worth- 
 less land. Shall the latter go to war? Let 
 us examine the question from precisely the 
 same standpoint from which the theory of 
 the mania for litigation judges it, in the case 
 of the peasant from whose land a neighbor has 
 
 26
 
 (Eije Hife of tfje Hato a Struggle 
 
 ploughed away a few feet, or into whose 
 meadow he has thrown a few stones. What 
 signifies a square mile of barren land com- 
 pared with a war which costs the lives of 
 thousands, brings sorrow and misery into 
 the palace and the hut, eats up millions and 
 millions of the treasure of the state, and 
 possibly imperils its existence? What folly 
 to make such a sacrifice for such an end! 
 
 Such would have to be our judgment, if 
 the peasant and the nation were measured 
 with the same measure. Yet no one would 
 wish to give to the nation the same advice as 
 to the peasant. Every one feels that a nation 
 which looked upon such a violation of law in 
 silence would have signed its own death 
 sentence. From the nation which allowed 
 itself to be deprived of one square mile of 
 territory by its neighbor, unpunished, the 
 rest also would be taken, until nothing re- 
 mained to it to call its own, and it had ceased 
 to exist as a state; and such a nation would 
 deserve no better fate. 
 
 But if a nation should have recourse to 
 
 27
 
 Htt)t Struggle for Hato 
 
 arms, for the sake of a square mile of terri- 
 tory, without inquiring what its value, why 
 not also the peasant for the sake of his strip 
 of land? Or must we dismiss him with the 
 decree: quod licet Jovi, non licet bovi. The 
 nation does not fight for the square mile of 
 territory, but for itself, for its honor and 
 independence; and so in those suits at law 
 in which the disproportion mentioned above 
 exists between the value of the object in con- 
 troversy and the prospective cost and other 
 sacrifices, there is question not of the insig- 
 nificant object in controversy, but of an ideal 
 end: the person's assertion of himself and of 
 his feeling of right. In respect to this end, 
 the person whose rights have been invaded 
 no longer weighs all the sacrifices and incon- 
 veniences which the suit at law draws after 
 it — the end in his eyes is compensation for 
 the means. It is not a mere money-interest 
 which urges the person whose rights have been 
 infringed to institute legal proceedings, but 
 moral pain at the wrong which has been 
 endured. He is not concerned simply with 
 
 28
 
 flTfje Htfe of tfje Hato a Struggle 
 
 recovering the object — he may, perhaps, 
 as frequently happens, to prove the real 
 motive in suing, have devoted it from the 
 first to a charitable institution — but with 
 forcing a recognition of his rights. An inner 
 voice tells him that he should not retreat, 
 that it is not the worthless object that is at 
 stake but his own personality, his feeling of 
 legal right, his self-respect — in short, the 
 suit at law ceases to appear to him in the 
 guise of a mere question of interest and be- 
 comes a question of character. 
 
 But experience teaches us none the less that 
 many others in the same situation come to 
 the very opposite decision — they like peace 
 better than a legal right asserted at the cost 
 of trouble and anxiety. What kind of a 
 judgment must we pass on this? Shall we 
 say simply : That is a matter of individual taste 
 and temperament; one loves contention more, 
 and the other peace; from the standpoint of 
 law both conclusions are to be equally re- 
 spected; for the law leaves to every one who 
 has a legal right, the choice of asserting his 
 
 29
 
 QTfje Struggle for Hato 
 
 right or of surrendering it. I hold this view, 
 which is to be met with not unfrequently in 
 life, to be reprehensible in the highest degree, 
 and in conflict with the very essence of law. 
 If it were possible that this view should 
 become general, all would be over with the 
 law itself; since whereas the law, to exist, 
 demands that there should be always a manly 
 resistance made to wrong, those who advo- 
 cate this view preach that the law should 
 flee like a coward before wrong. To this 
 view I oppose the principle: Resistance to 
 injustice, the resistance to wrong in the 
 domain of law, is a duty of all who have legal 
 rights, to themselves — for it is a command- 
 ment of moral self-preservation — a duty to 
 the commonwealth; — for this resistance must, 
 in order that the law may assert itself, be 
 universal. I have thus laid down the prin- 
 ciple which it is the purpose of the sequel to 
 elaborate. 
 
 30
 
 CHAPTER III 
 
 THE STRUGGLE FOR HIS RIGHTS A DUTY OF 
 
 THE PERSON WHOSE RIGHTS HAVE BEEN 
 
 VIOLATED, TO HIMSELF 
 
 HE struggle for his right is a duty 
 of the person whose rights have 
 been violated, to himself. 
 
 The preservation of existence is 
 the highest law of the whole living creation. 
 It manifests itself in every creature in the 
 instinct of self-preservation. Now man is 
 not concerned only with his physical life but 
 with his moral existence. But the condition 
 of this moral existence is right, in the law. 
 In the law, man possesses and defends the 
 moral condition of his existence — without 
 law he sinks to the level of the beast, 1 just as 
 the Romans very logically, from the stand- 
 
 1 In the novel, Michel Kohlhaas, by Heinrich von Kleist, to which 
 I shall return again, the writer makes his hero say: "Better be a dog, 
 if I am to be trodden under foot, than a man." 
 
 31
 
 QTfje Struggle for Hato 
 
 point of abstract law, placed slaves on a level 
 with beasts. The assertion of one's legal 
 rights is, therefore, a duty of moral self- 
 preservation — the total surrender of those 
 rights, now impossible, but once possible, is 
 moral suicide. But the law is only the ag- 
 gregate of its separate parts, each of which 
 embodies a peculiar moral condition of exist- 
 ence: property as well as marriage, contracts 
 as well as reputation. A renunciation of 
 one of them is, therefore, legally just as im- 
 possible as the renunciation of the entire law. 
 But it certainly is possible that a person 
 should attack one of these conditions; and it 
 is the duty of the person attacked to repel 
 the attack : for it is not sufficient to place these 
 conditions of existence under the protection 
 of law, represented by mere abstract prin- 
 ciples; they must be asserted in the concrete 
 by the individual; and the incentive to this 
 assertion of them is furnished when one 
 arbitrarily dares to attack them. 
 
 But not all legal wrong is arbitrariness, 
 that is a revolt against the idea of law. The 
 
 32
 
 Struggle for &igfjtsi a $eröonal JButp 
 
 possessor of my chattel who thinks he owns 
 it does not assail my person in denying the 
 idea of property; rather does he appeal to 
 it in his own interest. The question be- 
 tween us turns on this — which of us is the 
 owner? But the thief and the robber place 
 themselves outside the legal domain of prop- 
 erty. In my property they deny both the 
 idea of property, and, at the same time, an 
 essential condition of the existence of my 
 person. If we suppose their mode of action 
 to become general, to become a maxim of the 
 law, property is denied both in theory and in 
 practice. Hence their act embodies an at- 
 tack, not only on my chattel, but at the same 
 time on my person; and if it be my duty to 
 defend my person, it is my duty here also; 
 and nothing but the conflict of this duty with 
 the higher duty of the preservation of my 
 life, as happens when the robber puts before 
 me the alternative of my money or my life, 
 can justify the abandonment of my property. 
 But leaving this case out of consideration, 
 it is my duty to oppose this disregard of law 
 
 33
 
 Cfje Struggle for Hato 
 
 in my person with all the means at my com- 
 mand. By tolerating that disregard of law, 
 I consent to support injustice for a single 
 moment in my life. But to do this, no one 
 should lend a hand. 
 
 Towards the bona fide possessor of my 
 chattel, I stand in a very different situation. 
 Here the question is what I have to do. It is 
 not a question of my feeling of legal right, of 
 my character, of my personality, but a pure 
 question of interest; for I have nothing here 
 at stake but the value of my chattel, and 
 here, therefore, I am entirely warranted in 
 weighing the gain and stake, and the possibil- 
 ity of a doubtful issue, one against the other, 
 and to come to a decision accordingly: to 
 sue, abstain from suing, or arbitrate. 1 Arbi- 
 tration or settlement is the point of meeting 
 of such a calculation of probabilities, made 
 
 1 The above passage should have guarded me from the supposition 
 that I preached the battle for one's legal rights without inquiring 
 further concerning motives and circumstances, and that I consid- 
 ered the surrender of a questionable right as entirely unjustifiable. 
 Only where the person is trampled under foot in his rights have I 
 declared the vindication of one's rights to be a vindication of one's 
 self, and thus a matter of honor and a social duty. When this differ- 
 
 34
 
 Struggle for &tgf)tö a $eröonal Butp 
 
 by each side, and, with the premises which 
 I here suppose, it is the best means of closing 
 the controversy. But if a settlement is often 
 so difficult to effect; if, as not infrequently 
 happens, both parties from the first decline 
 all negotiations tending to a settlement, the 
 reason is not simply that the calculations of 
 probabilities by the two parties diverge too 
 much from each other to be able to meet, but 
 because each of the parties to the controversy 
 supposes the other to be consciously wrong, 
 moved by an evil intent. Thus the question 
 assumes, even when agitated from the stand- 
 point of a suit at law, under the form of an 
 objective injustice (reivindicatio), psychologi- 
 cally, for the party, the very same shape as 
 in the case above — the shape of a conscious 
 violation of one's right or of law; and the 
 stubbornness with which the individual here 
 
 ence, on which I have laid so much stress, is overlooked, and the 
 absurd view attributed to me, that wrangling and contention have 
 something of the beautiful in them, and that litigiousness is a virtue, 
 I can find no explanation of the fact, except by assuming an evil 
 intention to set up a view which is not liked in order to refute it, or 
 a negligence in reading which forgets at the end of the book what 
 was read in the beginning. 
 
 35
 
 GTfje Struggle for Hato 
 
 defends his rights is based precisely on the 
 same reasons, and is as morally justifiable, 
 as when he defends them against the robber. 
 To wish, in such a case, to deter the party 
 from defending his right, in a suit at law, by 
 pointing out to him the expense and other 
 consequences of the same nature attending 
 it — the uncertainty of the issue, for instance 
 — is a psychological blunder; for the question 
 is, to such a party, not a question of interest, 
 but of his sentiment of justice or of right. 
 The only hope we can cherish here is to cause 
 the supposition of an evil intention to dis- 
 appear, which caused the party to act; and 
 this done, resistance is overcome; the party 
 may be induced to look at the question in 
 the light of interest, and a settlement or com- 
 promise become possible. What stubborn 
 resistance the prepossession and prejudice of 
 the party frequently oppose to all such at- 
 tempts is only too well known to every 
 practical jurist; and I believe that I shall 
 meet with no contradiction from that quarter 
 when I assert that this inaccessibleness to 
 
 36
 
 Struggle for &tgfjtö a personal Burp 
 
 minds, this tenacious distrust, is a thing not 
 purely individual, determined by the acci- 
 dental character of the person, but that it is 
 decided by the general differences of educa- 
 tion and calling. This distrust is most insur- 
 mountable in the case of the peasant. The 
 litigiousness of which he is accused is noth- 
 ing but the product of two factors especially 
 peculiar to him — a strong sense of property, 
 not to say avarice, and mistrust. No one 
 so well understands his interests, and holds as 
 firmly to what he has, as the peasant; and yet 
 no one so readily sacrifices his fortune to a 
 suit at law. This is apparently a contradic- 
 tion; but, in reality, it is entirely explainable. 
 Precisely his largely developed sense of prop- 
 erty makes an injury to his property all the 
 more sensitively felt, and the reaction, there- 
 fore, all the more violent. The litigiousness 
 of the peasant is nothing but the aberration of 
 the sense of property, produced by mistrust, an 
 aberration which, like the analogous phenome- 
 non in love, jealousy, aims its dart at itself, 
 inasmuch as it destroys what it seeks to save. 
 
 37
 
 Efje Struggle for Hato 
 
 The old Roman law affords an interesting 
 confirmation of what I have just now said. 
 This mistrust of the peasant, which, in every 
 conflict of law, supposes an evil intention in 
 one's opponent, finds expression in that law 
 in the form of legal principles. Everywhere, 
 even where there is question of a conflict of 
 law in which each of the contending parties 
 may be in good faith, the defeated party has 
 to pay a penalty for his resistance. The 
 simple restoration to a person of his rights is 
 no satisfaction to the outraged feeling of right. 
 The defeated party, whether innocent or 
 guilty, had to make satisfaction for having 
 opposed the law. 1 If our peasants to-day 
 had the making of the law, it would, we may 
 conjecture, be very like that of their old 
 Roman predecessors. But even in Rome, 
 this mistrust in law was in principle overcome 
 by civilization, inasmuch as two sorts of in- 
 justice were distinguished, the guilty and the 
 innocent, or the subjective and objective (in 
 the language of Hegel, the ingenuous wrong). 
 
 1 I shall return to this later. 
 
 38
 
 Struggle for &tgfjtö a pergonal JSutp 
 
 This distinction between objective and sub- 
 jective injustice is, from a legislative and 
 scientific point of view, a very important one. 
 It expresses the manner in which the law looks 
 upon the matter, and it justifies the conse- 
 quences which the violation of law draws after 
 it. But it does not at all decide how the 
 individual shall look upon it; how his feeling 
 of legal right will be excited by an injustice 
 done him, a feeling which does not pulsate 
 in accordance with the abstract notions of 
 the system. The circumstances of the case 
 may be such that the person whose rights 
 have been violated may have every reason, 
 in a conflict about rights, which, according 
 to the law, falls under the head of an objective 
 violation of law, to proceed on the assumption 
 of an evil intent, of conscious injustice on the 
 part of his opponent; and this judgment of 
 his, will rightly decide what his course towards 
 his opponent should be. The fact that the 
 law gives me the very same condictio ex mutuo 
 against the heir of my debtor who knows 
 nothing of the debt, and makes the payment 
 
 39
 
 GTfje Struggle for Hato 
 
 of it dependent on the proof, as against the 
 debtor himself, who shamelessly denies the 
 loan made him, or refuses to pay it without 
 reason, cannot keep me from looking at the 
 mode of action of the two in an entirely dif- 
 ferent light, and to frame my own action 
 accordingly. The debtor himself is to me on 
 the same footing as the thief. He knowingly 
 tries to deprive me of what is mine. It is 
 the rising up of caprice against law, only it is 
 in a situation to clothe itself in a legal garb. 
 The heir of the debtor, on the other hand, is 
 like the bona fide possessor of what belongs 
 to me. He does not deny the principle that 
 the debtor must pay, but only the assertion 
 that he is a debtor himself, and all that I 
 have said above of the bona fide possessor 
 applies to him. With him I may settle or 
 compromise. I may, in his case, desist en- 
 tirely from the institution of a suit; but, as 
 against the debtor, I should and I must follow 
 up my right, cost what it may. Not to do 
 this would be to admit the debtor to be right, 
 — nay, more, to abandon the right. 
 
 40
 
 Struggle for &igfjtö a ^cröonal JSutp 
 
 I suppose that it will be objected to what 
 I have thus far said: what do the people know 
 of the right of property, of contract as a 
 moral condition of the existence of the person? 
 Know? They may know nothing about it, 
 but whether they do not feel it is another 
 question; and I hope that I shall be able to 
 show that such is the case. What do the 
 people know of the kidneys, lungs, liver, as 
 conditions of their physical life? But every 
 one feels the stitch in the lungs, or a pain in 
 the kidneys or liver, and understands the 
 warning which it conveys to him. Physical 
 pain is the signal of a disturbance in the 
 organism, of the presence of an influence 
 inimical to it. It opens our eyes to an im- 
 pending danger, and compels us, by the pain 
 which it causes, to oppose it in time. The 
 very same is true of the moral pain caused us 
 by intentional injustice, by arbitrariness. 
 Varying in intensity, just like the physical, 
 according to the difference of subjective 
 sensitiveness, of the form and object of the 
 injustice (on which more anon), it manifests 
 
 41
 
 Gtfje Struggle for Hato 
 
 itself also in every individual not entirely 
 blunted to it, i.e., in every individual who 
 has not grown accustomed to positive law- 
 lessness, as moral pain, and thus summons 
 him to fight against the cause which produces 
 it — not so much to put an end to the feeling 
 of pain as to preserve the health, which is 
 threatened by the inactive bearing of it. It 
 is a reminder of the duty of moral self-preser- 
 vation, such as physical pain is in respect to 
 physical self-preservation. 
 
 Let us take the most undoubted case, an 
 attack on one's honor, and the profession in 
 which it is most sensitively developed — the 
 military profession. An officer who has pa- 
 tiently borne an insult which involves his 
 honor is no longer an officer. Why? The 
 vindication of his honor is every man's duty. 
 Why then does the military gentleman attach 
 more importance than any other to the ful- 
 fillment of this duty? Because he has the 
 right feeling, that the courageous vindication 
 of one's personality is, for him, more, perhaps, 
 than for a person of any other class, an indis- 
 
 42
 
 fetruggle for &tgf)tö a pergonal Butp 
 
 pensable condition of his order, which, in its 
 very nature, should be the incorporation of 
 personal courage, and which cannot endure 
 the cowardice of its members without sacri- 
 ficing itself. With the officer, let us now 
 compare the peasant, who defends his prop- 
 erty with the greatest stubbornness, but 
 evinces a surprising indifference as to his 
 honor. Why? Because he, too, has a cor- 
 rect feeling of the peculiar conditions of his 
 existence. He is not called upon to give 
 proof of his courage, but to work. His prop- 
 erty is only the visible form which his labor 
 in the past has taken. The lazy peasant, 
 who takes no care of his land or who dissipates 
 his little fortune, is as much despised by other 
 peasants as is the officer who lightly values 
 his honor, by his colleagues. But one peas- 
 ant will never reproach another because he 
 has not fought a duel, or instituted a suit to 
 avenge an insult; nor one officer another, 
 because he has mismanaged his property. 
 The piece of land which he tills, the cattle 
 which he raises, are to the peasant the basis 
 
 43
 
 Cfje Struggle for Hato 
 
 of his entire existence; and the angry lawsuit 
 which he institutes against the neighbor who 
 has deprived him of a few feet of land, or 
 against the trader who refuses to pay him for 
 the oxen which he has sold him, is only his 
 way of doing what the officer does with his 
 sword — of battling for his rights. Both sacri- 
 fice themselves without reserve. They leave 
 the consequences of their action entirely out 
 of consideration. And this they must do, 
 for, in doing it, they are only obeying the 
 peculiar law of their moral self-preservation. 
 Put them in the jury-box — submit to a jury 
 of officers the case of an injury to property, 
 and to a jury of peasants a question of honor 
 — and see how different their verdicts! It 
 is well known that there are no severer judges, 
 in the matter of injuries to property, than 
 the peasantry. And although I cannot here 
 speak from experience, I have no manner of 
 doubt that if a peasant were to bring an 
 action for damages for assault and battery, 
 for instance, it would be found much easier 
 to induce him to arbitrate than if his action 
 
 44
 
 Struggle for Bigfjtö a $eröonal Burp 
 
 were for an injury to property. The old 
 Roman peasant was satisfied with twenty- 
 five as for a slap on the face; and when a 
 person put out one of his eyes, he was willing 
 to talk the matter over and to arbitrate, 
 instead of putting out one of his opponent's 
 eyes, as he was authorized to do. But he 
 demanded that the law should empower him 
 to hold the thief caught in the act, as a slave, 
 and, in case of resistance, to slay him; and 
 the law permitted him to do so. In the former 
 case, only his honor, his body, was at stake; 
 in the latter, his property. 
 
 As a third illustration, let us take the case 
 of the merchant. His credit is to him what 
 honor is to the officer, and property to the 
 peasant. The maintenance of his credit is, 
 for him, a vital question; and the man who 
 charges him with negligence in meeting his 
 obligations deals him a heavier blow than the 
 one who attacks his person or robs him. It 
 is in keeping with this peculiar position of the 
 merchant that recent laws tend more and 
 more to restrict the crime of negligent and 
 
 45
 
 Cfte Struggle for Hato 
 
 fraudulent bankruptcy, to him and others 
 like him. 
 
 By what I have just said I have not intended 
 simply to show that the irritability of the 
 feeling of legal right varies according to class 
 and calling, inasmuch as that feeling measures 
 the wounding character of the injury in 
 accordance with the interest which the class, 
 as a class, has not to endure it. The proof 
 of this fact serves only to place in its true light 
 the truth of a much higher order, that every 
 man possessed of a legal right defends the 
 moral conditions of his existence when he 
 defends his legal right. For the fact that 
 the feeling of legal right shows itself most 
 irritable, in the case of the three classes 
 named, in the points in which we have recog- 
 nized the conditions of existence of these 
 classes peculiarly to reside, proves that the 
 reaction of the feeling of legal right is not like 
 that of feelings generally, determined only 
 by the temperament and character of the 
 individual, but that it is determined likewise 
 by a social cause; viz., the feeling of the indis- 
 
 46
 
 Struggle for &tgf)tö a $eröonal Butp 
 
 pensableness of this very branch of the law 
 to the vital end of the particular class. The 
 degree of energy with which the feeling of 
 legal right reacts against an infringement of 
 legal right is, in my eyes, a sure measure of 
 the importance which individuals, a class or 
 people, really attach, both to the law in 
 general and to a special branch of it, for them- 
 selves and their special aim in life. This 
 principle I hold to be universally true, true 
 in the case of public as well as of private law. 
 The same irritability which the different 
 classes manifest in respect to a violation of 
 all those legal provisions which, in a special 
 manner, constitute the basis of their exist- 
 ence, we find also in the case of states, in re- 
 spect to those institutions in which the pecu- 
 liar principle of their life seems realized. 
 The measure of their irritability, and of the 
 value which they attach to these heads of 
 the law, is found in the criminal law. The 
 surprising difference which prevails in crim- 
 inal law {Strafrecht — penal justice), in re- 
 spect to severity and mildness, is accounted 
 
 47
 
 GTfje Struggle for Hato 
 
 for, in great part, by the principle mentioned 
 above, of the conditions of existence. Every 
 state punishes those crimes most severely 
 which threaten its own peculiar condition of 
 existence, while it allows a moderation to 
 prevail in regard to other crimes which, not 
 infrequently, presents a very striking con- 
 trast to its severity as against the former. A 
 theocracy brands blasphemy and idolatry as 
 crimes deserving of death, while it looks upon 
 a boundary violation as a simple misdemean- 
 or. (Mosaic law.) The agricultural state, 
 on the other hand, visits the latter with the 
 severest punishment, while it lets the blas- 
 phemer go with the lightest punishment. 
 (Old Roman law.) The commercial state 
 punishes most severely the uttering of false 
 coin, the military state insubordination and 
 breach of official duty, the absolute state high 
 treason, the republic the striving after regal 
 power; and they all manifest a severity in 
 these points which contrasts greatly with the 
 manner in which they punish other crimes. 
 In short, the reaction of the feeling of legal 
 
 48
 
 Struggle for &tgf)tö a pergonal Butp 
 
 right, both of states and individuals, is most 
 violent when they feel themselves threatened 
 in the conditions of existence peculiar to them. 1 
 Just as the peculiar conditions of a class or 
 calling invest certain heads of the law with 
 an enhanced importance, and thus enhance 
 the sensitiveness of the feelings of legal right 
 in respect to a violation of them, these same 
 conditions may also produce a weakening of 
 that sentiment. The servant-class cannot 
 maintain and develop the feeling of honor 
 among themselves as do the other strata of 
 society. Their position brings with it certain 
 humiliations, against which a single servant 
 revolts in vain, so long as the class itself 
 endures them. An individual with a sensitive 
 feeling of honor, in such a situation, has no 
 alternative but to lower his claims to the level 
 of those of his like or to give up the calling. 
 Only when such a way of feeling becomes 
 general is there any prospect for the individ- 
 ual, instead of wasting his strength in a useless 
 
 1 The learned know that I have here only turned to account ideas, 
 the merit of having recognized and formulated which belongs to the 
 great Montesquieu, "Esprit des Lois". 
 
 49
 
 Wi)t Struggle for Hato 
 
 struggle, to turn it to account, in union with 
 those who think as he does, to raise the level 
 of the honor of his class; and I mean here, 
 not simply the subjective feeling of honor, but 
 its objective recognition by the other classes 
 of society and by legislation. The history 
 of the social development of the last fifty 
 years shows immense progress in this direc- 
 tion. What I have just said might have been 
 applied half a century ago to most classes. 
 The enhanced feeling of honor to be found in 
 them is only the result and the expression of 
 the legal position which they have secured. 
 
 What I have said above of honor is true 
 also of property. The sensitiveness of the 
 feeling of legal right in relation to property, 
 the real sense of property — I mean here not 
 the instinct of acquisition, the hunting after 
 money and wealth, but the manly feeling of 
 the owner, as the model representative of 
 whom I have chosen the peasant, of the 
 owner who defends what belongs to him, not 
 because it is an object of value, but because 
 it belongs to him — this feeling, this sense of 
 
 50
 
 Struggle for &tgf)tö a pergonal 3©utp 
 
 property, also may become enfeebled under 
 the unhealthy influence of causes and cir- 
 cumstances. What, we hear a great many 
 ask, has the thing which belongs to me, to 
 do with my person, with me? It serves me 
 as a means of subsistence, of acquisition, of 
 enjoyment; but as there is no moral duty in- 
 cumbent on me to amass a great deal of money, 
 there can be no duty incumbent on me to go 
 to law for a mere trifle, at a great expenditure 
 of time and money, and at the sacrifice of my 
 rest. The only motive which urges me to 
 go to law to assert my right to my property is 
 the motive which determines me to acquire 
 it, and which determines the disposition I shall 
 make of it — my interest. Whether I shall 
 go to law to assert my right to my property, 
 or not, is simply a question of interest. 
 
 For my part, in such a view, I can see only 
 a degeneration of the true sense of property, 
 the reason of which seems to me to be a dis- 
 placement, an ignoring, of its natural basis. 
 I do not hold wealth and luxury responsible 
 for this degeneration — in neither of them do 
 
 Si
 
 W)t Struggle for Hato 
 
 I discover any danger to the feeling of legal 
 right of the people — but the love of gain 
 grown immoral. The historical source and 
 ethical justification of property is labor — 
 the labor not of the hand or arm alone, but 
 of the mind and of talent; and I acknowledge 
 the right, not only of the workman himself 
 to the product of his labor, but of his heir 
 also; that is, I discover in the right of inherit- 
 ance a necessary consequence of the principle 
 of labor; for I maintain that the laborer 
 should not be prevented denying himself the 
 enjoyment of his property and leaving it to 
 another, whether during his lifetime or after 
 his death. Only through a lasting connec- 
 tion with labor can property maintain itself 
 fresh and healthy. Only at this source is it 
 seen, clearly and transparently, to the very 
 bottom, to be what it is to man. The further 
 the stream is removed from this, its source, 
 and winds into the devious direction of easy 
 and toilless gain, the more turbid do its waters 
 become, until, in the slime of speculation on 
 'Change and of fraudulent stock-jobbing, it 
 
 52
 
 Struggle for &tgf)t£ a pergonal 3©utp 
 
 loses every trace of what it was in its origin. 
 At that point every vestige of the moral idea 
 of property has departed, and there can be 
 no longer question of the moral duty of de- 
 fending it. Here there can no longer be any 
 understanding of the meaning of property 
 as it exists in the breast of the man who has 
 to earn his bread in the sweat of his brow. 
 The worst of all is, that the opinions and 
 habits generated by such causes unfortunately 
 gradually extend to circles in which they 
 would not have appeared spontaneously 
 without contagious contact. 1 The influence 
 of the millions won by stock-jobbing extends 
 even to the poor man's hut; and the same 
 person who, in another environment, would 
 have tasted, in his own experience, the bless- 
 ings of labor, feels that same labor, under the 
 enervating pressure of such an atmosphere, 
 a curse, and only a curse. Communism 
 thrives only in those quagmires in which the 
 
 1 An interesting proof of this is furnished by the small German 
 university cities, supported mainly by students. The manner in 
 which these think and act in the matter of spending money is invol- 
 untarily communicated to the population. 
 
 53
 
 W$t Struggle for Hato 
 
 true idea of property is lost. At the source 
 of the stream it is not to be found. We 
 may verify in the country, in a directly oppo- 
 site sense, this fact of experience: that the 
 manner in which the ruling classes look at 
 property is not confined to the latter, but 
 that it is communicated to the other classes 
 of society. The person permanently living 
 in the country, who does not keep entirely 
 aloof from the peasantry, will involuntarily, 
 and even when not urged thereto by his 
 circumstances or his own peculiar character, 
 take up something of the peasant's frugality 
 and sense of property. The same average 
 man, under otherwise entirely similar cir- 
 cumstances, will be economical with the 
 peasant in the country, and a spendthrift 
 with the millionaire in a city like Vienna. 
 
 But whatever may be the cause of that 
 weakness of character which the love of ease 
 induces to evade the struggle for legal right, 
 all we have to do here is to recognize it and 
 to describe it as it is. What is the practical 
 philosophy of life which it preaches but the 
 
 54
 
 Struggle for &tgf)ta a pergonal JButp 
 
 policy of the coward? The coward who 
 flees the battle saves what others sacrifice — 
 his life; but he saves it at the cost of his honor. 
 Only the fact that others make a stand 
 protects him and the community from the 
 consequences which his mode of action would 
 otherwise inevitably draw after it. If all 
 thought as he, they would all be lost. And 
 precisely the same is true of the cowardly 
 abandonment of one's legal rights. Innocent 
 as the act of an individual, it would, if raised 
 to the dignity of a general principle of action, 
 be the destruction of the entire law. And 
 even under these circumstances, the appar- 
 ent absence of danger in such a mode of action 
 is possible only because the struggle of law 
 against wrong is, on the whole, not affected 
 by it any further. For, indeed, it is not 
 individuals alone who are called upon to take 
 part in this struggle, but, in organized states, 
 the state-power also takes a very large part 
 in it, inasmuch as it prosecutes and punishes 
 all serious attacks on the life, liberty or 
 property of the individual, of its own motion, 
 
 55
 
 (Efje Struggle for Hato 
 
 thus relieving him of the hardest part of the 
 work. But even in respect to those viola- 
 tions of law, the prosecution of which is left 
 entirely to the individual, care is taken that 
 the struggle may not be interrupted; for 
 every one does not follow the policy of the 
 coward, and even the latter takes his place 
 in the line of combatants, at least when the 
 value of the object in controversy outweighs 
 his ease. But let us suppose a state of things 
 in which the protection afforded by the police 
 power and by the criminal law is wanting; 
 let us transfer ourselves to a time when, as 
 in ancient Rome, the pursuit of the thief and 
 the robber was the affair only of the person 
 injured, and who does not see to what such 
 an abandonment of one's legal rights would 
 have led? To what would it have conduced 
 but to the encouragement of thieves and rob- 
 bers? The very same thing is true of the 
 life of nations. Here each nation is thrown 
 entirely on its own resources. No higher 
 power relieves it of the necessity of asserting 
 its rights, and I need only recall the example 
 
 56
 
 Struggle for &tgf)t£ a pergonal ZButp 
 
 given above of the square mile, to show what 
 that view of life which would measure the 
 resistance to wrong according to the material 
 value of the object in controversy, means to 
 the life of nations. But a principle which, 
 wherever tested, proves itself completely 
 unthinkable, the dissolution and destruction 
 of the law, cannot, even where, by way of 
 exception, its fatal consequences are para- 
 lyzed by other circumstances, be called cor- 
 rect. I shall have occasion to show later 
 what a disastrous influence such a principle 
 exerts, even under such relatively favorable 
 circumstances. 
 
 Let us, therefore, reject this morality of 
 convenience and ease, which no nation and 
 no individual, with a healthy feeling of legal 
 right, has ever adopted. It is the sign and 
 the product of a diseased feeling of legal 
 right; it is coarse and naked materialism, in 
 the domain of law. Even materialism has, 
 within certain limits, its raison d'etre in this 
 domain. To profit by one's legal rights, to 
 make use of them and to assert them when 
 
 57
 
 Cfje Struggle for Hato 
 
 there is question of a purely objective wrong, 
 is only a question of interest; and a legal 
 right according to the definition which I have 
 given of it myself, 1 is nothing but an interest 
 protected by the law. But in the presence 
 of arbitrariness which lifts its hand against 
 the law, this material consideration loses all 
 value, for the blow which it aims at my legal 
 right, strikes my person also when it strikes 
 the law. 
 
 It is a matter of indifference what the ob- 
 ject of the right is. If mere chance were to 
 put me in possession of an object, I might be 
 deprived of it without any injury to my 
 person, but it is not chance, but my will, 
 which establishes a bond between myself and 
 it, and even my will only at the price of the 
 past labor of myself or of another; — it is a 
 part of my own strength and of my own past, 
 or of the strength and past of another, which 
 I possess and assert in it. In making it my 
 own, I stamped it with the mark of my own 
 person; whoever attacks it, attacks me; the 
 
 1 " Geist des röm. R." iii, p. 60. 
 58
 
 Struggle for ftigfjtö a $eröonal ©utp 
 
 blow dealt it strikes me, for I am present in 
 it. Property is but the periphery of my 
 person extended to things. 
 
 This connection of the law with the person 
 invests all rights, no matter what their nature, 
 with that incommensurable value which, in 
 opposition to their purely material value, I 
 call ideal value. From it springs that de- 
 votedness and energy in the assertion of 
 legal right which I have described above. 
 This ideal conception of the law is not a 
 privilege of characters highly endowed by 
 nature; but it is as accessible to the coarsest 
 as to the most cultured, to the richest as to 
 the poorest, to savage and to civilized nations; 
 and, just here, we discover so clearly how 
 firmly rooted in the innermost nature of the 
 law this idealism is — it is nothing but the 
 healthfulness of the feeling of legal right. 
 The law which, on the one hand, seems to 
 relegate man exclusively to the low region of 
 egotism and interest, lifts him, on the other 
 hand, to an ideal height, in which he forgets 
 all policy, all calculation, that measure of 
 
 59
 
 TOje Struggle for Hato 
 
 interest which he had learned to apply every- 
 where, in order to sacrifice himself purely 
 and simply in the defense of an idea. Law 
 which, in the former region, is prose, becomes, 
 in the struggle for law, poetry in the latter; 
 for the struggle for law, the battle for one's 
 legal rights, is the poetry of character. 
 
 What is it, then, that works this wonder? 
 Not knowledge, not education, but simply 
 the feeling of pain. Pain is the cry of dis- 
 tress, the call for help of imperiled nature. 
 This is true, as I have already remarked, 
 both of the moral and the physical organism; 
 and what the pathology of the human organ- 
 ism is to the physician, the pathology of the 
 feeling of legal right is to the jurist and the 
 philosopher in the sphere of law; or, rather, 
 it is what it should be to them, for it would 
 be wrong to say that it is such to them 
 already. In it, in truth, lies the whole secret 
 of the law. The pain which a person experi- 
 ences when his legal rights are violated is 
 the spontaneous, instinctive admission, wrung 
 from him by force, of what the law is to him 
 
 60
 
 Struggle for &tgf)tö a |3eröonal But? 
 
 as an individual, in the first place, and then 
 of what it is to human society. In this one 
 moment, and in the form of an emotion, of 
 direct feeling, we see more of the real meaning 
 and nature of the law than during long years 
 of undisturbed enjoyment. The man who 
 has not experienced this pain himself, or 
 observed it in others, knows nothing of what 
 law is, even if he had committed the whole 
 corpus juris to memory. Not the intellect, 
 but the feeling, is able to answer this question; 
 and hence language has rightly designated 
 the psychological source of all law as the 
 feeling of legal right (Rechtsgefühl). The con- 
 sciousness of legal right (Rechtsbewusstsein), 
 legal conviction, are scientific abstractions 
 with which the people are not acquainted. 
 The power of the law lies in feeling, just as 
 does the power of love; and the intellect 
 cannot supply that feeling when it is wanting. 
 But as love frequently does not know itself, 
 and as a single instant suffices to bring it to 
 a full consciousness of itself, so the feeling of 
 legal right uniformly knows not what it is, 
 
 61
 
 Cfje Struggle for Hato 
 
 and what it can do, so long as it is not wound- 
 ed; but the violation of legal right compels 
 it to speak, unveils the truth, and manifests 
 its force. I have already said in what this 
 truth consists. His legal right, the law, is 
 the moral condition of existence of the per- 
 son; the assertion of that right is his moral 
 self-preservation. 
 
 The force with which the feeling of legal 
 right reacts, when wounded, is the test of its 
 health. The degree of pain which it experi- 
 ences tells it what value it attaches to the 
 imperiled goods. But to experience the pain 
 without taking to heart its warning to ward 
 off the impending danger, to bear it patiently 
 and take no measure of defense, is a denial of 
 the feeling of legal right, excusable, perhaps, 
 under certain circumstances, in a particular 
 case, but impossible in the long run without 
 the most disastrous consequences to the feel- 
 ing of legal right itself. For the essence of 
 that feeling is action. Where it does not 
 act, it languishes and becomes blunted, until 
 finally it grows almost insensible to pain. 
 
 62
 
 Struggle for Bigfjtö a ijßeröonal JButp 
 
 Irritability, that is the capacity to feel pain 
 at the violation of one's legal rights, and 
 action, that is the courage and the determi- 
 nation to repel the attack, are, in my eyes, the 
 two criteria of a healthy feeling of legal right. 
 
 I must refrain from elaborating any further 
 this interesting and instructive subject of 
 the pathology of the feeling of legal right; 
 but I would, however, ask permission to 
 make a few remarks just here. 
 
 The sensitiveness of the feeling of legal 
 right, otherwise the sentiment of law, is not 
 the same in all individuals, but it increases 
 and decreases according as, and to the extent 
 that, each individual class or people experi- 
 ences the law as a moral condition of exist- 
 ence; and not the law in general only, but its 
 several parts. This I have shown above, in 
 reference to property and reputation. As a 
 third example, I may here add, marriage. 
 What reflections does not the manner in 
 which different individuals, nations, codes of 
 law, look at adultery, suggest! 
 
 The second element in the feeling of legal 
 
 63
 
 tCfjc Struggle for Hato 
 
 right, action, is a mere matter of character: 
 the attitude which an individual or a nation 
 assumes towards an attempt on its rights 
 is the surest test of its character. If by- 
 character we understand personality, full, 
 self-reliant and self-asserting, there can be 
 no better opportunity to test this quality 
 than when arbitrariness attacks one's rights, 
 and, with his rights, his person. The manner 
 in which the wounded feeling of law or of 
 personality reacts, whether under the influ- 
 ence of passion in wild and violent action, or 
 with subdued, persistent resistance, is no 
 measure of the intensity of the strength of 
 the sentiment of legal right; and there can 
 be no greater error than to ascribe to the 
 savage or the uncultured man, with whom 
 the former manner is the normal one, a strong- 
 er feeling of legal right, than to the educated 
 man who takes the second course. This 
 manner is more or less a matter of education 
 and temperament; but a firm, tenacious and 
 resolute resistance is in no way inferior to 
 violent and passionate reaction. It would 
 
 64
 
 Struggle for &tgf)t£ a pergonal JDutp 
 
 be deplorable if it were otherwise. Were 
 it otherwise, individuals and nations would 
 lose the feeling of legal right in proportion 
 as they advanced in culture. A glance at 
 history and at everyday life is sufficient to 
 show that this is not the case. Nor is the 
 answer to be found in the contrast of rich 
 and poor. Different as is the measure with 
 which the rich man and the poor man measure 
 the value of things, it is not at all applied in 
 the case of a violation of legal right; for here 
 the question is not the material value of a 
 thing, but the ideal value of a legal right, 
 the energy of the feeling of legal right in rela- 
 tion to property; and hence it is not the 
 amount of property, but the strength of the 
 feeling of legal right, which here decides the 
 issue. The best proof of this is afforded by 
 the English people. Their wealth has caused 
 no detriment to their feeling of legal right; 
 and what energy it still possesses, even in 
 pure questions of property, we, on the Con- 
 tinent, have frequently proof enough of, in 
 the typical figure of the traveling English- 
 
 65
 
 GHje Struggle for Hato 
 
 man who resists being duped by inn-keepers 
 and hackmen with a manfulness which would 
 induce one to think he was defending the 
 law of Old England — who, in case of need, 
 postpones his departure, remains days in the 
 place and spends ten times the amount he 
 refuses to pay. The people laugh at him, 
 and do not understand him. It were better 
 if they did understand him. For, in the few 
 shillings which the man here defends, Old 
 England lives. At home, in his own country, 
 every one understands him, and no one lightly 
 ventures to overreach him. Place an Austrian 
 of the same social position and the same 
 means in the place of the Englishman — how 
 would he act? If I can trust my own experi- 
 ence in this matter, not one in ten would 
 follow the example of the Englishman. Others 
 shun the disagreeableness of the controversy, 
 the making of a sensation, the possibility of 
 a misunderstanding to which they might 
 expose themselves, a misunderstanding which 
 the Englishman in England need not at all 
 fear, and which he quietly takes into the 
 
 66
 
 Struggle for fttgfjtö a $eröonal ©utp 
 
 bargain: that is, they pay. But in the few 
 pieces of silver which the Englishman re- 
 fuses and which the Austrian pays there lies 
 concealed more than one would think, of 
 England and Austria; there lie concealed 
 centuries of their political development and 
 of their social life. 
 
 67
 
 CHAPTER IV 
 
 THE ASSERTION OF ONE'S RIGHTS A DUTY 
 TO SOCIETY 
 
 1HUS far I have endeavored to 
 establish the first of the principles 
 laid down above, that the struggle 
 for law is a duty of the person hav- 
 ing rights, to himself. I now turn to the 
 second; viz., that the assertion of one's legal 
 rights is a duty which he owes to society. 
 
 To establish this principle, it is necessary 
 that I should examine somewhat more closely 
 the relation of law in the objective sense to 
 law in the subjective sense of the term. In 
 what does the relation consist? I state, I 
 believe, the theory admitted in our days, 
 accurately, when I say that it consists in 
 this: that the former is the condition pre- 
 cedent of the latter. A concrete legal right 
 exists only where the conditions are to be 
 
 69
 
 {Efje Struggle for Hato 
 
 found which the abstract principle of law 
 has attached to its being. When we have 
 said this, we have, according to the prevailing 
 theory, completely exhausted their relation 
 to one another. But this view is altogether 
 one-sided. It lays stress exclusively on the 
 dependence of the concrete law on the ab- 
 stract, but overlooks the fact that there is, 
 just as much, a similar relation of dependence 
 in the opposite direction. Concrete law not 
 only receives life and strength from abstract 
 law, but gives it back, in turn, the life it has 
 received. It is of the nature of the law to be 
 realized in practice. A principle of law never 
 applied in practice, or which has lost its 
 force, no longer deserves the name; it is a 
 worn-out spring in the machinery of the law, 
 which performs no service and which may 
 be removed without changing its action in 
 the least. This applies without limitation 
 to all parts of the law — to the law of nations 
 as well as to private and criminal law; and the 
 Roman law has given it its express sanction, 
 inasmuch as it considers desuetudo as an 
 
 70
 
 gssertton of &igf)tö a foetal But? 
 
 abrogation of a law. This desuetudo cor- 
 responds to loss of concrete legal rights by 
 non-user (non-usus). But while the realiza- 
 tion in practice of public law and of criminal 
 law is assured, because it is imposed as a 
 duty on public officials, the realization in 
 practice of private law is presented to indi- 
 viduals under the form of their legal rights; 
 that is, it is left exclusively to them to take 
 the initiative in its realization, left exclusively 
 to their action. In the former case, its 
 practical realization depends on the perform- 
 ance of their duty by the authorities and 
 public officials, and, in this latter case, on the 
 assertion by individuals of their legal rights. 
 If the latter, for any reason, neglect to assert 
 their rights, permanently and generally, be 
 it from ignorance, love of ease, or fear, the 
 consequence is that the principles of right 
 lose their vigor. And so we may say: The 
 reality, the practical force of the principles 
 of private law, is proved by the assertion of 
 concrete legal right; and as, on the one hand, 
 the latter receives its life from the laws, it, 
 
 71
 
 &fje Struggle for Hato 
 
 on the other, gives back life to the laws; the 
 relation of objective or abstract legal right 
 and subjective or concrete legal right is the 
 circulation of the blood, which flows from the 
 heart and returns to the heart. 
 
 The existence of all the principles of public 
 law depends on the fidelity of public officials 
 in the performance of their duties; that of the 
 principles of private law, on the power of the 
 motives which induce the person whose rights 
 have been violated to defend them: his inter- 
 est and his sentiment of legal right. If these 
 motives do not come into play, if the feeling 
 of legal right is blunted and weak, and inter- 
 est not powerful enough to overcome the 
 disinclination to entering into a controversy 
 and the indisposition to go to law, the conse- 
 quence is that the principle of law involved 
 finds no application. 
 
 But, we shall be asked, what matters it? 
 No one suffers from this but the person whose 
 rights have been invaded. I must again 
 have recourse to the illustration already used, 
 of the individual who flees the battle. If there 
 
 72
 
 gteaerttcm of Eigfctö a Social But? 
 
 are a thousand men in the fight, the defection 
 of one may make no difference; but if a hun- 
 dred of them desert their colors, the position 
 of those who remain faithful becomes more 
 and more perilous; the whole weight of the 
 battle falls on them alone. This, it seems to 
 me, is a correct representation of the state 
 of the question. In the domain of private 
 law also, there is a question of a struggle of 
 legal right against injustice, of a common 
 struggle of the whole nation, in which all 
 should cling together. Desertion, in such a 
 case, is treason to the common cause, for it 
 strengthens the common enemy by increasing 
 his boldness and audacity. When arbitrari- 
 ness and audacity boldly dare to lift their 
 head, it is always a sure sign that those who 
 are called to defend the law have not done 
 their duty. But each of us, in his own place, 
 is called upon to defend the law, to guard and 
 enforce it in his own sphere. The concrete 
 legal right which belongs to him is only his 
 authorization by the state to enter the lists 
 when his interests require it, for the law, and 
 
 73
 
 {Efce Struggle for Hato 
 
 to ward off injustice — a call made upon 
 him which is partial and limited, in contra- 
 distinction to that made upon the public 
 official, which is absolute and unlimited. In 
 defending his legal rights he asserts and 
 defends the whole body of law, within the 
 narrow space which his own legal rights occupy. 
 Hence his interest, and this, his mode of 
 action, extend far beyond his own person. 
 The general good which results therefrom is 
 not only the ideal interest, that the authority 
 and majesty of the law are protected, but this 
 other very real and eminently practical good 
 which every one feels and understands, even 
 the person who has no conception whatever 
 of the former — that the established order 
 of social relations is defended and assured. 
 When the master can no longer insist that 
 the servant shall do his duty, when the credi- 
 tor cannot enforce payment by his debtor, 
 when the public attach no great importance 
 to the correctness of weights and measures, 
 can it be said that nothing is imperiled but 
 the authority of the law? When these things 
 
 74
 
 gsföertton of ikigfjtö a Social Butp 
 
 come to pass, the order of civil life is sacrificed 
 in one direction, and it is not easy to say how 
 far the disastrous consequences produced 
 may reach; whether, for instance, the whole 
 system of credit may not be seriously affected 
 thereby. For every man will do all in his 
 power to have nothing to do with people who 
 force him to wrangle and struggle where his 
 legal right is clear; and he will transfer his 
 capital to other places and order his goods 
 elsewhere. 
 
 Under such circumstances, the lot of the 
 few who have the courage to enforce the law 
 becomes a real martyrdom. Their strong 
 feeling of legal right, which will not permit 
 them to quit the field, becomes a curse to 
 them. Forsaken by all who should have 
 been their natural allies, they stand alone 
 against the lawlessness which has grown up 
 in consequence of universal indolence and 
 cowardice; and if, after all their sacrifices, 
 they earn the satisfaction of having remained 
 true to themselves, they reap, instead of 
 gratitude, ridicule and scorn. The responsi- 
 
 75
 
 GTJje Struggle for Hato 
 
 bility for this state of things falls not upon 
 those who transgress the law, but on those 
 who have not the courage to assert it. Do not 
 accuse injustice of usurping the place of the 
 law, but the law of permitting that usurpation. 
 If I were called upon to pass judgment on 
 the practical importance of the two princi- 
 ples: "Do no injustice," and: "Suffer no 
 injustice," I would say that the first rule was: 
 Suffer no injustice, and the second: Do none! 
 If we take man as he actually is, there is no 
 doubt that the certainty of meeting a firm 
 and resolute resistance is far more powerful to 
 prevent the commission of an injustice, than 
 a simple prohibition which has, in fact, no 
 greater practical force than a moral precept. 
 After all this, can I be charged with claim- 
 ing too much when I say: The defense of one's 
 concrete legal rights, when these rights are 
 attacked, is a duty of the individual whose 
 rights have been invaded, not only to himself, 
 but also to society? If what I have said be 
 true, that in defending his legal right he, at 
 the same time, defends the law, and in the 
 
 76
 
 gööertton of &tgf)tö a Social But? 
 
 law that public order which is indispensable, 
 who can deny that, in defending them, he 
 fulfills a duty to the commonwealth? If 
 the latter may summon him to fight a foreign 
 enemy and to risk his life in battle with him; 
 if it be every one's duty to defend the common 
 interests of the country, when attacked from 
 without, why should not all courageous and 
 well-minded men unite to resist the enemy 
 at home ? And if, in the former case, cowardly 
 flight is considered treason to the common 
 cause, why is it not treason in the latter also? 
 Law and justice cannot thrive in a country 
 simply because the judge sits always ready 
 on the bench, and the agents of the police 
 power are ever at its command. That they 
 may thrive, every member of society must 
 co-operate with these. Every one is called 
 upon, and it is every one's duty, to crush the 
 hydra-head of arbitrariness and lawlessness, 
 whenever they show it. Every man who 
 enjoys the blessings of the law should also 
 contribute his share to maintain the power 
 of the law and respect for the law. Every 
 
 77
 
 &\)t Struggle for Hato 
 
 man is a born battler for the law in the inter- 
 est of society. 
 
 I do not need to call attention to the extent 
 to which the vocation of the individual to 
 assert his legal right is ennobled when it is 
 viewed in this way. Our actual theory tells 
 us only of a purely passive attitude towards 
 the law; the doctrine here advocated puts in 
 its place one of reciprocity, in which the 
 person with legal rights returns to the law 
 the service which he receives from it. Our 
 doctrine thus looks upon him as a collaborator 
 in a great national work. Whether the per- 
 son himself looks upon it in this way is a 
 matter of no moment. For the grand and 
 the sublime in the moral order of the world 
 is that it can count on the services not only 
 of those who comprehend it, but that it 
 possesses efficacious means enough to make 
 those who do not understand its commands 
 labor for it without their knowledge or their 
 will. To force men to engage in the matri- 
 monial relation, it brings into play, in the 
 case of some men, the noblest of all human 
 
 78
 
 gsßertton of &igf)tö a foetal 3Butp 
 
 instincts, in the case of others sensual pleas- 
 ure, in a third case convenience, in a fourth 
 covetousness — but all these motives lead 
 to marriage. And so, in the struggle for law, 
 interest calls one to the scene of strife, pain 
 at the spectacle of violated legal right another, 
 the idea of law a third — they all lend each 
 other a hand in the common work, opposition 
 to arbitrariness. 
 
 We have now reached the ideal height of 
 the struggle for law. Rising from the lower 
 motive of interest we have lifted ourselves 
 to the point of view of the moral self-preser- 
 vation of the person and finally come to 
 co-operation in the realization of the idea 
 of law. 
 
 In my rights the law was violated and 
 denied. In my rights it is defended, asserted 
 and restored. What an immense impor- 
 tance does the struggle of the individual for 
 his rights thus obtain! How far below the 
 height of this ideal, universal interest in the 
 law, lies the sphere of that which is purely 
 individual, the region of personal interests, 
 
 79
 
 {Cfje Struggle for Hato 
 
 aims, and passions which the uncultured man 
 looks upon as the real domain of the law! 
 
 But that height, many may say, is so great 
 that it is visible only to the eyes of the philoso- 
 phy of law; it is never thought of in practical 
 life; no one institutes an action for the sake of 
 the idea of law. To refute this statement, I 
 might refer to the Roman law, in which the 
 actuality of this ideal view is attested most 
 clearly by the existence of the popular ac- 
 tions, 1 but we would be doing ourselves a 
 
 ] I would remark, for the benefit of those of my readers who have 
 not studied law, that these suits (actiones populäres) afforded an 
 opportunity to all who desired it to appear as representatives of the 
 law and to bring those who had violated it to account; and not only 
 where there was question of the public interest, and consequently 
 also of that of the accuser, but wherever an individual whose rights 
 had been violated was not in a way to defend himself fully, as, for 
 instance, when a minor had been wronged in a contract of sale, or 
 where a tutor had been unfaithful to his pupil, etc. See my "Geist 
 des röm. Rechts," iii, p. 107. These actions, therefore, involved an 
 appeal to the ideal feeling which defends the law because it is the 
 law, and not on account of any personal interest. Others of these 
 actions appealed to the ordinary motive of cupidity, by causing the 
 accuser to hope for the fine imposed on the accused, and hence it is 
 that the same stain attached to them, or rather to their institution 
 for gain, which among us attaches to informers. When I add that 
 the actions of the second class mentioned above disappeared in the 
 later Roman law, and that those of the first have disappeared in our 
 own, every reader will be able to draw the correct conclusion from 
 these premises; viz., that the conditions which they supposed had 
 disappeared. 
 
 80
 
 gteöertton of &tgfjtö a foetal But? 
 
 great injustice, if we were to deny that we 
 also possessed this ideal feeling. Every man 
 who sees the law violated and feels indigna- 
 tion at the sight, possesses it. While, in 
 fact, an egotistical motive is mixed up with 
 the painful feeling caused by a personal 
 wrong, this indignation is produced exclusive- 
 ly by the power of morality over the human 
 heart. It is the energy of our moral nature 
 protesting against the violation of the law; 
 it is the most beautiful and the highest 
 testimony which the feeling of legal right can 
 bear to itself; it is a moral phenomenon which 
 calls for the study of the psychologist and 
 appeals to the imagination of the poet. No 
 other feeling, so far as I know, is able so sud- 
 denly, so radically, to make a change in man; 
 for it is a demonstrated fact that it has the 
 power to rouse the gentlest and most con- 
 ciliating natures to a pitch of passion which 
 is otherwise entirely foreign to them; a fact 
 which proves that they have been wounded 
 in the noblest part of their being and touched 
 in its most sensitive fibres. It is the phenom-
 
 1&\)t Struggle for Hato 
 
 enon of the storm in the moral world : sublime, 
 majestic in the rapidity, suddenness, and 
 power with which it breaks forth, in the 
 strength of that moral force, which like a 
 tempest or the elements in a fury, sweeps 
 everything before it, then grows calm and 
 beneficent, and produces a purification of 
 the moral atmosphere enjoyed both by the 
 individual and by all. But if the limited 
 power of the individual spends itself in vain 
 against institutions which afford a protection 
 to lawlessness which they refuse to right, it 
 is plain that the storm recoils on the head of 
 its author; and then one of two things: either 
 his wounded feeling of legal right will make of 
 him one of those criminals of whom I shall 
 speak further on, or he will afford us the no 
 less tragical spectacle of a man who, ever 
 bearing in his breast the sting which injustice 
 that he has not been able to resist, has left 
 there, gradually loses his moral life and all 
 faith in the law. 
 
 I readily grant that this ideal sentiment of 
 legal right, possessed by the person by whom 
 
 82
 
 gööerttcm of &igfjtö a foetal But? 
 
 the wounding of the feeling of legal right is 
 felt more sensitively than an attack upon him 
 personally, and who disinterestedly sacrifices 
 himself in the interest of oppressed right as 
 if there were question only of his own rights, 
 is the privilege of highly gifted natures. How- 
 ever, even the cold feeling of legal right, desti- 
 tute of all idealism, which is affected only by 
 the wrong done to itself, fully understands the 
 relation between concrete legal right and the 
 law, which I have demonstrated and summed 
 up thus: My legal right is the law; when my 
 legal right is violated, the law is violated; 
 when it is asserted, the law is asserted. It 
 sounds paradoxical, and yet it is true, that 
 precisely among jurists this view is far from 
 being usual. According to their view, in 
 the struggle for concrete legal rights, the law 
 itself is in no way involved; the struggle does 
 not turn on the abstract law, but on its 
 incorporation in the form of this concrete 
 legal right, a photograph, so to speak, of 
 that law, in which it has become fixed, but 
 in which it is not itself directly affected. I 
 
 83
 
 QTfje Struggle for £ato 
 
 do not intend to question the technical neces- 
 sity of this view, but it should not keep us 
 from acknowledging the correctness of the 
 opposed view, which places the law on the 
 same level with concrete legal right, and sees 
 in the imperiling of the latter the imperiling 
 of the former also. To the unprejudiced 
 feeling of right, the latter view, it seems to 
 me, must commend itself much more strongly 
 than the former. The best proof of what 
 I here allege is the expression which the 
 Germans employ, and which was used in the 
 Latin. In a case at law, the plaintiff is said 
 in Germany to invoke the law {das Gesetz 
 anrufen) ; the Romans called the complaint 
 legis actio. The law itself is called in ques- 
 tion; it is the law itself which is under dis- 
 cussion in a particular case — a view of the 
 highest importance for the understanding of 
 the old Roman process, legis actio. Hence 
 the struggle for one's legal rights is, at the 
 same time, a struggle for the law. There is 
 question not alone of a personal interest, of 
 a single relation in which the law has been 
 
 84
 
 gteöertion of Bigfjtö a foetal Butp 
 
 incorporated, of a photographic picture, as 
 I have called it, in which a transient ray of 
 the law has perpetuated itself, and which 
 may be broken up and divided without 
 affecting the law; but there is a question of 
 the law itself which has been despised, tram- 
 pled under foot, and which must be defended, 
 if the law itself is not to become a mockery 
 and a word without meaning. When the 
 legal right of the individual is sacrificed, the 
 law is sacrificed likewise. 
 
 This view, which I may call the solidarity 
 of the law with concrete legal right, is, as I 
 have shown above, the real expression of 
 their relations in their most intimate nature. 
 It is not, however, so very obscure but that 
 the mere egotist, incapable of entertaining 
 an elevated idea, may catch it. On the 
 contrary, it may be the one which he under- 
 stands the most readily, for his interest is to 
 associate himself with the state in the struggle. 
 And thus even he is, without his knowledge 
 or his will, lifted above himself and his legal 
 right to that ideal social eminence where he 
 
 85
 
 W$t Struggle for Hato 
 
 becomes the representative of the law. The 
 truth remains truth, even when the individual 
 defends it only from the narrow point of view 
 of his personal interest. It is hatred and 
 revenge that take Shylock before the court to 
 cut his pound of flesh out of Antonio's body; 
 but the words which the poet puts into his 
 mouth are as true in it as in any other. It is 
 the language which the wounded feeling of 
 legal right will speak, at all times and in all 
 places; the power, the firmness of the convic- 
 tion, that law must remain law, the lofty 
 feeling and pathos of a man who is con- 
 scious that, in what he claims, there is ques- 
 tion not only of his person but of the law. 
 "The pound of flesh," Shakespeare makes 
 him say: — 
 
 "The pound of flesh, which I demand of him, 
 Is dearly bought, is mine, and I will have it; 
 If you deny me, fie upon your law; 
 There is no force in the decrees of Venice. 
 
 I crave the law. 
 
 I stay here upon my bond." 
 
 "I crave the law." In these four words, 
 the poet has described the relation of law in 
 
 86
 
 gööertion of &isf)tö a foetal 3©utp 
 
 the subjective, to law in the objective sense 
 of the term and the meaning of the struggle 
 for law, in a manner better than any philoso- 
 pher of the law could have done it. These 
 four words change Shylock's claim into a 
 question of the law of Venice. To what 
 mighty, giant dimensions does not the weak 
 man grow, when he speaks these words! 
 It is no longer the Jew demanding his pound 
 of flesh; it is the law of Venice itself knocking 
 at the door of Justice; for his rights and the 
 law of Venice are one and the same; they both 
 stand or fall together. And when he finally 
 succumbs under the weight of the judge's 
 decision, who wipes out his rights by a shocking 
 piece of pleasantry, 1 when we see him pursued 
 
 1 The eminently tragic interest which we feel in Shylock, I find to 
 have its basis precisely in the fact that justice is not done him; for 
 this is the conclusion to which the lawyer must come. The poet is, 
 of course, free to build up his own system of jurisprudence, and we 
 have no reason to regret that Shakespeare has done so here; or 
 rather that he has changed the old fable in nothing. But when the 
 jurist submits the question to a critical examination, he can only say 
 that the bond was in itself null and void because its provisions were 
 contrary to good morals. The judge should, therefore, have refused 
 to enforce its terms on this ground from the first. But as he did not 
 do so, as the "wise Daniel" admitted its validity, it was a wretched 
 subterfuge, a miserable piece of pettifoggery, to deny the man whose 
 
 87
 
 Efje Struggle for Hato 
 
 by bitter scorn, bowed, broken, tottering on 
 his way, who can help feeling that in him 
 the law of Venice is humbled; that it is not 
 the Jew, Shylock, who moves painfully away, 
 but the typical figure of the Jew in the middle 
 ages, that pariah of society who cried in vain 
 for justice? His fate is eminently tragic, not 
 because his rights are denied him, but be- 
 cause he, a Jew of the middle ages, has faith 
 in the law — we might say just as if he were 
 a Christian — a faith in the law firm as a 
 rock which nothing can shake, and which 
 the judge himself feeds until the catastrophe 
 breaks upon him like a thunder clap, dispels 
 the illusion and teaches him that he is only 
 the despised medieval Jew to whom justice 
 is done by defrauding him. 
 
 right he had already admitted, to cut a pound of flesh from the living 
 body, the right to the shedding of the blood which necessarily 
 accompanied it. Just as well might the judge deny to the person 
 whose right to an easement he acknowledged, the right to leave foot- 
 marks on the land, because this was not expressly stipulated for in 
 the grant. One might almost believe that the tragedy of Shylock 
 was enacted in the earliest days of Rome; for the author of the 
 Twelve Tables held it necessary to remark expressly in relation to 
 the laceration of the debtor (in partes secare) by the creditor, that 
 the size of the piece should be left to his free choice. (Si plus minusve 
 secuerint, sine fraude esto!)
 
 gsßertton of &tgfjts; a foetal Butp 
 
 The picture of Shylock conjures up another 
 before my mind, the no less historical than 
 poetical one of Michel Kohlhaas, which 
 Heinrich von Kleist has described in his 
 novel of that name with all the fascination 
 of truth. Shylock retires from the scene 
 entirely broken down by grief; his strength 
 is gone and he bows without resistance to 
 the decision of the judge. Not so Michel 
 Kohlhaas. After every means to obtain his 
 rights, which have been most grievously 
 violated, has been exhausted; after an act 
 of sinful cabinet-justice has closed the way 
 of redress to him, and Justice herself in all her 
 representatives, even to the highest, has 
 sided with injustice, a feeling of infinite woe 
 overpowers him at the contemplation of the 
 outrage that has been done him and he ex- 
 claims: "Better be a dog, if I am to be tram- 
 pled under foot, than a man"; and he says: 
 "The man who refuses me the protection of 
 the law relegates me to the condition of the 
 savage of the forest, and puts a club in my 
 hand to defend myself with." He snatches 
 
 89
 
 &fje Struggle for Hato 
 
 the soiled sword out of the hand of such 
 venal Justice and brandishes it in a manner 
 that spreads consternation far and wide 
 through the country, causes the state to shake 
 to its very foundations and the prince to 
 tremble on his throne. It is not, however, 
 the savage feeling of vengeance that animates 
 him; he does not turn murderer and brigand, 
 like Karl Moor, who wished "to make the 
 cry of revolt resound through all nature to 
 lead into the fight against the race of hyenas, 
 air, earth and sea," whose wounded feeling 
 of justice causes him to declare war against 
 all humanity; but it is a moral idea which 
 urges him forward, the idea that "it is his 
 duty to the entire world to consecrate all his 
 strength to the obtaining of satisfaction and 
 to the guarding of his fellow-citizens against 
 similar injustice." To this idea he sacrifices 
 everything, his family's happiness, the honor 
 of his name, all his earthly possessions, his 
 blood, and his life; and he carries on no aim- 
 less war of extermination, for he directs it 
 only against the guilty one, and against all 
 
 90
 
 gööertton of a&tgfjtsi a Social Butp 
 
 those who make common cause with him. 
 At last, when the hope of obtaining justice 
 dawns upon him, he voluntarily lays down 
 his arms; but, as if chosen to illustrate by 
 example to what depth of ignominy the dis- 
 regard of law and dishonor could descend at 
 that time, the safe conduct given him, and 
 the amnesty are violated, and he ends his life 
 on the place of execution. However, before 
 his life is taken from him, justice is done 
 him, and the thought that he has not fought 
 in vain, that he has restored respect for the 
 law and preserved his dignity as a human 
 being, makes him smile at the horrors of 
 death; and, reconciled with himself, the world, 
 and God, he gladly and resolutely follows the 
 executioner. What reflections does not this 
 legal drama suggest! Here is an honest and 
 good man, filled with love for his family, with 
 a simple, religious disposition, who becomes 
 an Attila and destroys with fire and sword 
 the cities in which his enemy has taken refuge. 
 And how is this transformation effected? 
 By the very quality which lifts him morally 
 
 9i
 
 %\)t Struggle for Hato 
 
 high above all his enemies who finally triumph 
 over him; by his high esteem for the law, his 
 faith in its sacredness, the energy of his 
 genuine, healthy feeling of legal right. The 
 tragedy of his fate lies in this that his ruin was 
 brought about by the superiority and nobility 
 of his nature, his lofty feeling of legal right, and 
 his heroic devotion to the idea of law, which 
 made him oblivious to all else and ready to 
 sacrifice everything for it, in contact with the 
 miserable world of the time in which the 
 arrogance of the great and the powerful was 
 equaled only by the venality and cowardice 
 of the judges. The crimes which he com- 
 mitted fall much more heavily on the prince, 
 his functionaries and his judges, who forced 
 him out of the way of the law into the way 
 of lawlessness. For no wrong which man 
 has to endure, no matter how grievous, can 
 at all compare, at least in the eyes of ingenu- 
 ous moral feeling, with that which the author- 
 ity established by God commits when it itself 
 violates the law. Judicial murder is the 
 deadly sin of the law. The guardian and 
 
 92
 
 &ööertton of &igf)tö a Social 3Butp 
 
 sentinel of the law is changed into its mur- 
 derer; the physician poisons his patient; the 
 guardian strangles his ward. In ancient 
 Rome, the corrupt judge was punished with 
 death. For the justice which has violated 
 the law there is no accuser as terrible as the 
 sombre, reproachful form of the criminal 
 made a criminal by his wounded feeling of 
 legal right — it is its own bloody shadow. 
 The victim of corrupt and partial justice is 
 driven almost violently out of the way of 
 the law; he becomes the avenger of his own 
 wrong, the executor of his own rights, and it 
 not infrequently happens that, overshooting 
 the mark, he becomes the sworn enemy of 
 society, a robber and a murderer. If, like 
 Michel Kohlhaas, his nature be noble and 
 moral, it may guard him against going so 
 far astray, but he will become a criminal, 
 and by suffering the penalty of his crime, a 
 martyr to his feeling of legal right. It is 
 said that the blood of martyrs does not flow 
 in vain, and the saying may have been true 
 of him. It may be that his warning shadow 
 
 93
 
 Cfje Struggle for Hato 
 
 sufficed for a long time to make the legal 
 oppression of which he was the victim an 
 impossibility. 
 
 In conjuring up this shadow, I have desired 
 to show by a striking example how far the 
 very man whose sentiment of legal right is 
 strongest and most ideal may go astray when 
 the imperfection of legal institutions refuses 
 him satisfaction. Here the struggle for law 
 becomes a struggle against the law. The 
 feeling of legal right, left in the lurch by the 
 power which should protect it, itself abandons 
 the ground of the law and endeavors, by help- 
 ing itself, to obtain what ignorance, bad will, 
 or impotence refuses it. And it is not only a 
 few very strong and violent characters, in 
 which the national feeling of legal right 
 raises its protest against such a condition of 
 things, but this protest is sometimes repeated 
 by the whole population under certain forms, 
 which, according to their object or to the 
 manner in which the whole people or a definite 
 class look upon them or apply them, may be 
 considered as popular substitutes for, and 
 
 94
 
 gööertion of &tgf)tö a foetal JDutp 
 
 accessories to, the institutions of the state. 
 Here belong the secret courts of criminal jus- 
 tice in the middle ages and the feudal law, 
 which bear weighty evidence to the impo- 
 tence or the partiality of the criminal courts 
 of the time and to the weakness of the state 
 power; in the present, dueling, which is a 
 palpable proof that the penalties which the 
 state inflicts on attacks on one's honor are 
 not sufficient to satisfy the delicate feeling 
 of honor of certain classes of society. Here 
 also belong the revenge for bloodshed of 
 the Corsicans and so-called lynch-law in 
 the United States. All these show very 
 plainly that the legal institutions of the 
 country are not in harmony with the feeling 
 of the people or of a class. They always 
 imply a reproach to the state, either that it 
 makes them necessary or that it endures 
 them. When the law has prohibited them, 
 without, however, being able to abolish them, 
 they may become, for the individual, the 
 source of a very serious conflict. The Corsi- 
 can who obeys the law rather than have 
 
 95
 
 Wt)t Struggle for Hato 
 
 recourse to revenge for bloodshed is despised 
 by his own kinsfolk; if he follows what the 
 national feeling seems to demand of him, he 
 perishes by the avenging arm of justice. And 
 thus it is with the duel. The person who 
 declines it when his honor dictates that he 
 should accept it, is disgraced; if he accepts 
 it, he is punished — a situation as painful 
 to the individual as to the judge. In vain 
 do we look for facts analogous to these in the 
 early history of Rome, for the institutions of 
 the state were then in perfect harmony with 
 the national feeling of legal right. 
 
 96
 
 CHAPTER V 
 
 IMPORTANCE OF THE STRUGGLE FOR LAW 
 TO NATIONAL LIFE 
 
 HAVE now reached the end of my 
 reflections on the struggle of the 
 individual for his legal rights. We 
 have followed him through all his 
 motives, from the lowest of mere calculation 
 up to the ideal one of the assertion of his 
 personality and its moral conditions of exist- 
 ence, until we reached the realization of the 
 idea of justice — that highest point, from 
 which one false step plunges the man whose 
 feeling of violated right has made a criminal 
 into the abyss of lawlessness. 
 
 But the interest of this struggle is not con- 
 fined, by any means, to private life or private 
 law. Rather does it extend far beyond them. 
 A nation is, after all, only the sum of all the 
 individuals who compose it, and the nation 
 
 97
 
 3tfje Struggle for Hato 
 
 thinks, feels, and acts as the individuals that 
 make it up think, feel, and act. If the feeling 
 of legal right of the individuals of the nation 
 is blunted, cowardly, apathetic; if it finds no 
 room for a free and vigorous development, 
 because of the hindrances which unjust laws 
 and bad institutions put in its way; if it meets 
 with persecution where it should have met 
 with support and encouragement; if, in con- 
 sequence of this, it accustoms itself to endure 
 injustice and to look upon it as something 
 which cannot be helped, who will believe that 
 such a slavish, apathetic and paralyzed feel- 
 ing of legal right can be aroused all at once to 
 life and to energetic reaction, when there is 
 question of a violation of the rights, not of 
 an individual, but of the whole people; an 
 attempt on their political freedom, the breach 
 or overthrow of their constitution, or an 
 attack from a foreign enemy? How can the 
 person who has not been used to defending 
 even his own rights feel the impulse volun- 
 tarily to stake his life and property for the 
 community? How can the man who thinks 
 
 98
 
 importance to Rational Htfe 
 
 nothing of the ideal damage which he suffers 
 in his person and his honor, inasmuch as 
 he abandons his rights, because he loves his 
 ease; who was accustomed, in legal matters, 
 to employ only the measure of material inter- 
 est, be expected to employ a different measure 
 and to feel differently when there is question 
 of the right and the honor of the nation? 
 Whence could that idealism of feeling sudden- 
 ly proceed which had thus far never shown 
 itself? No! The battler for constitutional 
 law and the law of nations is none other than 
 the battler for private law; the same qualities 
 which distinguished him struggling for his 
 rights as an individual accompany him in 
 the battle for political liberty and against the 
 external enemy. What is sowed in private 
 law is reaped in public law and the law of 
 nations. In the valleys of private law, in 
 the very humblest relations of life, must be 
 collected, drop by drop, so to speak, the 
 forces, the moral capital, which the state 
 needs to operate on a large scale, and to 
 attain its end. Private law, not public law, 
 
 99
 
 (Efje Struggle for Hafco 
 
 is the real school of the political education 
 of the people, and if we would know how a 
 people, in case of need, will defend their 
 political rights and their place among the 
 nations, let us examine how the separate 
 members of the nation assert their own right 
 in private life. I have already cited the 
 example of the combative Englishman; and 
 I can only repeat here what I said above: 
 In the shilling for which he stubbornly strug- 
 gles the political development of England 
 lives. No one will dare to wrest from a 
 people who, in the very smallest matters, 
 bravely assert their rights, the highest of 
 their possessions, and it is, therefore, not 
 mere chance that the same people of anti- 
 quity who attained to the greatest political 
 development within, and displayed the great- 
 est power externally, the Romans, had at the 
 same time the most fully developed system 
 of private law. Law is idealism — paradoxi- 
 cal as this may seem — not the idealism of 
 the fancy, but of character: that is, of the 
 man who looks upon himself as his own end, 
 
 ioo
 
 importance to Rational Hilt 
 
 and esteems all else lightly when he is attacked 
 in his personality. What matters it to him 
 whence this attack upon his rights proceeds — 
 whether from an individual, from his own 
 government, or from a foreign nation? It 
 is not the person of the aggressor that decides 
 what resistance he shall oppose to the attack, 
 but the energy of his feeling of legal right, 
 the moral force with which he is wont to 
 assert himself. Hence the principle is ever 
 true: the political position of a people, both 
 at home and abroad, is always in keeping 
 with their moral force; the Celestial Empire 
 with its bamboo, the rod for its adult children, 
 and its hundreds of millions of inhabitants, 
 will never attain, in the eyes of foreign 
 nations, the respected position of little Swit- 
 zerland. The natural disposition of the Swiss 
 in the matter of art and poetry is anything 
 but ideal. It is sober and practical, like 
 that of the Romans. But, in the sense in 
 which I have thus far used the expression 
 "ideal," in its relation to law, it is just as 
 applicable to the Swiss as to the Englishman. 
 
 IOI
 
 Wbt Struggle for Hato 
 
 This idealism of the healthy feeling of legal 
 right would undermine its own foundation if 
 it confined itself to the defense of its own rights 
 only, without taking any part in the main- 
 tenance of law and order. It knows not only 
 that in defending its own legal rights it de- 
 fends the law, but that in defending the law 
 it defends its own legal rights. In a com- 
 munity in which this feeling, this sense for 
 strict law prevails, we look about in vain 
 for the saddening sights so common elsewhere 
 — the mass of the people, when the authori- 
 ties prosecute the criminal or the violator 
 of the laws or seek to arrest him, taking his 
 part, and seeing in the state power the natural 
 enemy of the people. Every one knows that 
 the cause of the law is his own cause. Only 
 the criminal here sympathizes with the crim- 
 inal. The honest man does not. Rather 
 does he lend a willing and helping hand to 
 the police and to the authorities. 
 
 It will be scarcely necessary for me to 
 express in words the inference to be drawn 
 from what has been said. It is summed up 
 
 102
 
 importance to Rational Hiit 
 
 in the principle: For the state which desires 
 to be respected abroad, and to be firm and 
 unshaken internally, there is no more precious 
 good which it has to guard and foster than 
 the national feeling of legal right. The foster- 
 ing of it is one of the highest and most impor- 
 tant duties of political pedagogy. In the 
 healthy, vigorous feeling of legal right of the 
 individual, the state possesses the most fruit- 
 ful source of its own strength, the surest 
 guaranty, from within and from without, of 
 its own existence. The feeling of legal right 
 is the root of the whole tree. If the root be 
 good for nothing, if it withers in the rocks 
 and in the sand, all the rest is but an illusion; 
 the storm comes and plucks it up by the 
 roots. But the trunk and the top have the 
 advantage that they are seen, while the roots 
 are hidden in the ground and veiled from sight. 
 The disastrous influence which unjust laws 
 and bad legal institutions exercise on the 
 moral power of the nation acts under ground, 
 in those regions which so many amateur states- 
 men do not consider worthy of their atten- 
 
 103
 
 Wtz Struggle for Hato 
 
 tion; they are concerned only with the stately 
 top; of the poison which rises to the top from 
 the root they have no idea whatever. But 
 despotism knows where it must strike to fell 
 the tree; it leaves the top untouched at first, 
 but destroys the roots. Every despotism 
 has begun with attacks on private law, with 
 the violation of the legal rights of the indi- 
 vidual; when its work is done the tree falls 
 of itself. Hence the necessity, above all, of 
 opposing it here, and the Romans well knew 
 what they were doing when they took advan- 
 tage of an attempt on female chastity and 
 honor to put an end to the kings and the 
 decemvirate. To destroy the feeling of per- 
 sonal liberty in the peasant by means of taxes 
 and services, to put the citizen under the 
 guardianship of the police, to make the per- 
 mission to go on a journey dependent on the 
 granting of a passport, and the thought of 
 the author on the approval of the censor, to 
 impose taxes according to one's good will 
 and pleasure — even a Machiavelli could 
 have given no better recipe to extinguish 
 
 104
 
 importance to J2ational TLitt 
 
 all manly feeling of personal liberty in a 
 people, and to insure despotism an unresisted 
 conquest. That the same door through which 
 despotism and arbitrariness enter stands open 
 for the foreign enemy also, is not considered; 
 and only when the enemy is actually there, 
 and it is too late, do the wise come to recog- 
 nize that the moral power and the feeling of 
 legal right of a people are the most effectual 
 rampart which can be raised against external 
 enemies. It was at the time that the peasant 
 and citizen were the subjects of feudal and 
 absolute arbitrariness that Alsace and Lor- 
 raine w r ere lost to the German Empire. How 
 could those provinces have for the empire 
 a feeling which they had ceased to have for 
 themselves? 
 
 But it is our own fault if we understand the 
 teachings of history only after it is too late; 
 it is not its fault if we do not understand them 
 in time, for it preaches them, always, in such 
 a manner that we may understand them and 
 profit by them. The power of a people is 
 synonymous with the strength of their feeling 
 
 i°5
 
 &fje Struggle for Hato 
 
 of legal right. The cultivation of the national 
 feeling of legal right is care for the health 
 and strength of the state. By this cultiva- 
 tion and care, I do not, of course, understand 
 schooling and instruction, but the practical 
 carrying out of all the principles of justice in 
 all the relations of life. It is not, however, 
 sufficient to occupy ourselves only with the 
 external mechanism of the law; it may, 
 indeed, be so organized and directed that the 
 most perfect order may reign, and still that 
 the demand above referred to may be entirely 
 ignored. Personal bondage, the tax for pro- 
 tection paid by the Jew, and so many other 
 principles and institutions of times past, 
 which were in the most flagrant contradiction 
 with a strong, healthy feeling of legal right, 
 and w r hich injured the state itself, perhaps, 
 more than the citizens, peasants, Jews, on 
 whom the burthen of them fell, in the first 
 instance, were also conformable to law and 
 order. The fixedness, clearness, certainty of 
 positive law, the doing away with all those 
 principles at which a healthy feeling of legal 
 
 1 06
 
 importance to Rational TLitt 
 
 right might take offense in any sphere of 
 the law, not only of private law, but in the 
 police power, the administrative, financial, 
 legislative, the independence of the courts, 
 the greatest possible perfection of legal pro- 
 cedure — this is a surer way to increase the 
 power of the state than the greatest possible 
 increase of the military budget. Every pro- 
 vision which the people feel to be unjust, 
 and every institution which they detest, is an 
 injury to the national feeling of legal right 
 and to the national strength, a sin against 
 the idea of law, the burthen of which falls 
 on the state itself, and for which it has not 
 infrequently to pay dearly. It may, under 
 certain circumstances, cost it a province. I 
 am not, indeed, of the opinion that the state 
 should avoid these sins from reasons of 
 expediency simply. Rather do I consider 
 it the most sacred duty of the state to realize 
 this idea for its own sake; but this may be 
 doctrinarian idealism, and I have no word of 
 blame for the practical politician and states- 
 man who refuses such a demand with a shrug 
 
 107
 
 QZfyt Struggle for Hato 
 
 of the shoulders. And just on this account 
 have I exposed the practical side of the ques- 
 tion to view, the side which he fully under- 
 stands; for the idea of law and the interest 
 of the state go, here, hand in hand. There 
 is no feeling of legal right, no matter how 
 healthy it may be, which can, in the long 
 run, resist the influence of bad laws; it grows 
 blunted, withers and decays. For the essence 
 of legal right is, as I have frequently remarked 
 already, action. What the air is to the flame, 
 freedom of action is to the feeling of legal 
 right. Refuse it this freedom, and the feel- 
 ing dies. 
 
 1 08
 
 CHAPTER VI 
 
 THE ROMAN LAW OF TO-DAY, AND THE 
 STRUGGLE FOR LAW- 
 MIGHT stop here, for my subject 
 is exhausted. The reader, how- 
 ever, will allow me to claim his 
 attention for another question close- 
 ly related to my subject, the question how 
 far our present law, or to speak more accu- 
 rately, the Roman law of to-day as it obtains 
 here, on which alone I can venture to express 
 a judgment, comes up to the requirements 
 described in the preceding pages. I do not 
 hesitate to say that it does not, in any way, 
 come up to them. It is far behind the right- 
 ful claims of a healthy feeling of legal right, 
 and not because it has not, in many cases, 
 found the true solution, but because its way 
 of looking at things is diametrically opposed 
 to the idealism described above as constitut- 
 ion
 
 {Efje Struggle tor Hato 
 
 ing the essence of the healthy feeling of legal 
 right — I mean that idealism which sees in a 
 violation of law an attack not only on the 
 object, but on the person himself. Our civil 
 law does not give this idealism the least sup- 
 port. The measure with which it measures 
 all violations of legal right, with the exception 
 of an attack on a man's honor, is that of 
 material value. It is nothing but the perfect 
 expression of petty, sober materialism. 
 
 But what should the law guarantee to the 
 person whose legal rights have been infringed, 
 in his property, but the litigated object or 
 its value ? If this be true, the thief, too, might 
 be allowed to depart, who had restored the 
 object stolen. But, we are told, the thief 
 commits a crime not only against the person 
 whom he has robbed, but also against the 
 laws of the state, against order, against the 
 moral law. And docs not the debtor who 
 denies the loan which has been made him, 
 the seller or the lessor who breaks his con- 
 tract, the agent who abuses the confidence I 
 placed in him to overreach me, do the same? 
 
 no
 
 Cfje Vornan Hato of {Eooap 
 
 Is it any satisfaction to my wounded feeling 
 of legal right when, from all these persons, 
 I obtain, after a long struggle, only what 
 belonged to me from the beginning? But, 
 even leaving this desire for satisfaction out 
 of consideration, a desire which I do not 
 hesitate to acknowledge to be entirely justi- 
 fiable, what a disturbance of the natural 
 equilibrium between the parties ! The danger 
 with which a bad issue of the suit threatens 
 them consists for the one in the loss of his 
 property, and for the other in the restitution of 
 what he unjustly retained. In the opposite 
 case, the one has the advantage that he loses 
 nothing, and the other that he has added to his 
 wealth at the expense of his adversary. Is not 
 this to provoke the most shameless of lying, 
 and to put a premium on unfaithfulness ? But 
 I have thus, in fact, done no more than char- 
 acterize our law. I shall have an opportunity 
 later to prove this opinion; but I believe that 
 it will be easier to do this, if, for the sake of 
 contrast, I refer to the attitude which the 
 Roman law assumed towards this question. 
 
 in
 
 Sijc Struggle for Hato 
 
 I distinguish in this respect three stages of 
 development. The first is that, if I may say 
 so, of the boundless violence of the feeling 
 of legal right, not yet capable of self-control, 
 of the older law; the second is that of the 
 measured strength of the feeling of legal 
 right in the intermediate law; the third is 
 that of the decline of the feeling of legal right 
 at the close of the Empire, and especially in 
 the Justinian law. 
 
 I here sum up, in a few words, the result of 
 the researches which I have made and pub- 
 lished in another work, on the form under 
 which this question appears to us in the first 
 stage of its development. In this stage, such 
 was the sensitiveness of the feeling of legal 
 right that every violation of or attack on 
 one's personal rights was looked at from the 
 standpoint of subjective injustice and the 
 degree of guilt of the aggressor not taken into 
 consideration; and hence the complainant 
 exacted satisfaction for the injury done, 
 both from the person who was only formally 
 guilty and from the person who was really 
 
 112
 
 Wbt Vornan Hato of 1&o bap 
 
 so. The man who denied a plain debt 
 (nexum), or the damage which he had done 
 to the chattel of his opponent, paid, if de- 
 feated, double; and so the person who, in a 
 suit for the ownership of a thing, had as 
 holder of it taken its fruits, was condemned 
 to return double the value, and had, besides, 
 to bear the loss, if defeated, of the sum which 
 he had staked on the suit {sacr amentum). 
 The plaintiff had to suffer the same penalty 
 when he lost the suit, for he had claimed the 
 property of another; and if he erred ever so 
 little in the valuation of an amount to which 
 he was justly entitled, he forfeited the whole 
 amount. 
 
 Of these principles and provisions of the 
 older law much has passed over into the more 
 modern law, but the new independent crea- 
 tions of that law breathe an entirely different 
 spirit. It may be described as the employ- 
 ment and application of the measure of guilt 
 in all cases of the violation of private law. 
 Objective and subjective injustice are strictly 
 distinguished. The former entails simply the 
 
 113
 
 QTfje Struggle for Hato 
 
 restitution of the object, the second a penalty 
 in addition to this, sometimes a fine, sometimes 
 disgrace; and this proportionate infliction of 
 a penalty is one of the soundest thoughts of 
 the intermediate Roman law. That a deposi- 
 tary who had become guilty of the breach of 
 trust of denying the deposit or refusing to 
 restore it to the depositor, that the agent or 
 guardian who had used his position of trust 
 to promote his own interests, or who had 
 knowingly neglected his duty, should escape 
 by merely restoring the thing or by making 
 good the damage caused, was something to 
 which the healthy feeling of legal right of 
 the Romans could not reconcile itself. It 
 demanded, besides this, the infliction of a 
 penalty for the wrong done, as a satisfaction 
 of the wounded feeling of legal right and as a 
 means of deterring others from similar mis- 
 deeds. The penalties inflicted were, in the 
 first place, infamy — in Rome one of the 
 severest imaginable, for it entailed, besides 
 the social degradation which it produced, 
 the loss of all political rights, political death. 
 
 114
 
 Cije Vornan Hato of Cooap 
 
 It was inflicted in all cases in which the 
 infringement of legal rights was an aggravated 
 breach of faith. Then there were the pecuni- 
 ary penalties, which were much more exten- 
 sively employed than they are among our- 
 selves. For the person who, in an unjust 
 cause, instituted a suit, or allowed one to be 
 instituted, there was an entire arsenal of such 
 deterrent means in readiness. They began 
 with fractions ( T /io, Vs> r /3> l M of the litigated 
 object, rose to multiples of its amount, under 
 certain circumstances, where the defiance of 
 the opponent could not be broken in any 
 other way, ad infinitum, that is, to the amount 
 which the plaintiff declared under oath to be 
 satisfactory. There were especially two forms 
 of procedure, the prohibitory interdicts of 
 the praetor and the actiones arbitrarics, which 
 were intended to compel the accused to 
 desist without any further disadvantageous 
 consequences, or to expect to be considered 
 a willful violator of the law, and to be treated 
 accordingly. They compelled the accused, 
 when he persisted in his resistance, or in his 
 
 »5
 
 Cfje Struggle for Hato 
 
 attack, not to restrict his action to the person 
 of the accuser, but to work against the author- 
 ities also; and thus it was no longer only the 
 legal rights of the complainant which were in 
 question, but the law itself in the person of 
 its representatives. 
 
 The object of these penalties was the same 
 as that of the penalty in criminal law. It 
 was, on the one hand, a purely practical 
 object, to guard the interests of private life 
 against such violations as did not fall under 
 the head of crimes, and, on the other, a moral 
 object, to afford satisfaction to the wounded 
 feeling of legal right; not of the person di- 
 rectly concerned only, but of all those persons 
 who have known of the case, and to reassert 
 the authority of the law. The money was 
 not the end had in view, but only the means 
 to the end. 1 
 
 'There is a very strong proof of what I have just said in the 
 actiones vindictam spirantes. They show this ideal point of view 
 very clearly, and that their object was not a sum of money or the 
 restitution of a thing, but reparation for an attack on the feeling of 
 legal right, and on the feeling of personality (magis vindictce quam 
 pecunia habet rationem). Hence these actions did not survive to the 
 heirs, they could not be assigned, they could not be begun by the 
 
 116
 
 Cfje &oman Hato of Cooap 
 
 The manner in which the intermediate 
 Roman law looked at this matter is, in my 
 eyes, something wonderful. It was equally 
 far removed from two extremes, from that 
 of the old law, which placed objective injus- 
 tice on the same level as subjective injustice, 
 and from that of our present law, which taking 
 an opposite direction has lowered the latter 
 to the level of the former. It gave entire 
 satisfaction to the legitimate claims which 
 could be raised by the justest feeling of legal 
 right, for it was not satisfied with strictly 
 separating the two species of injustice, but it 
 could discern and give expression minutely 
 and intelligently to the form, mode, gravity, 
 and to all the shades of subjective injustice. 
 
 In turning now to the last stage of develop- 
 ment of the Roman law, as it has been defi- 
 nitely fixed, in the Institutes of Justinian, I 
 cannot resist calling attention to the impor- 
 tance of the law of inheritance, both for the 
 
 creditors in case of an assignment for their benefit, they were barred 
 after a relatively short period of time, and hence they had no place 
 where it was shown that the injured person had not felt the injus- 
 tice done him {ad animum suum non revocaverii. de injur, 47, id). 
 
 117
 
 £f)e Struggle for Hato 
 
 life of the individual and for that of the 
 nation. What would the law of this period 
 be, if it had had to create it by its own efforts? 
 But, just as many heirs, unable to procure for 
 themselves the necessaries of life, live on the 
 wealth accumulated by the testator, an 
 exhausted and degenerated people subsist, 
 for a long time, on the intellectual capital 
 of a previous vigorous age. I do not mean 
 simply that it enjoys the labor of others 
 without any trouble to itself. I would, 
 above all, call attention to the fact that it 
 is in the nature of the works, creations and 
 institutions of the past to preserve, for a 
 certain length of time, and to revivify, the 
 spirit which gave them birth. They hold in 
 themselves a store of latent force which is 
 changed into active force by personal con- 
 tact with them. In this sense the private 
 law of the republic in which was reflected 
 the energetic and vigorous feeling which the 
 old Roman people had for legal right, served 
 the empire for a time as a living source. In 
 the great desert of the later world, it was the 
 
 118
 
 Cfje Vornan Hato of {Eobap 
 
 only oasis in which fresh water flowed. But 
 despotism is like the simoon's breath, which 
 allows no plant to grow; and private law alone 
 not being able to maintain a spirit which was 
 despised everywhere, was obliged to succumb, 
 although latest of all, to the spirit of the new 
 era. This spirit of the new era presents 
 itself to us under a very strange appearance. 
 We might expect to find in it the marks of 
 despotism, severity, harshness, want of con- 
 sideration, and yet we find the very opposite 
 — mildness and humanity. But this mild- 
 ness itself is a despotic mildness, that is, it 
 robs one person of what it gives another — it 
 is the mildness of arbitrariness and caprice, 
 not that of humanity — it is the penalty of 
 cruelty. This is not the place to give all the 
 proofs on which I might base this assertion. 
 It will be sufficient, it seems to me, to call 
 attention to one especially significant trait 
 of that character, one which is rich in histori- 
 cal material — the moderation and consider- 
 ation shown to the debtor at the expense of 
 the creditor. It may, I think, be laid down 
 
 119
 
 GTfje Struggle for Hato 
 
 as a general maxim that sympathy with 
 the debtor is the sign of a weak epoch. This 
 sympathy styles itself humanity. A vigor- 
 ous age is concerned first of all with insuring 
 the creditor his rights, even if the debtor goes 
 to the wall in consequence. 
 
 To come now to the Roman law of the 
 present time: I almost regret that I have 
 mentioned it, for I see myself compelled to 
 pass judgment on it here, without being able 
 to defend it as I would like. But that judg- 
 ment itself I do not hesitate to express. 
 
 To sum up my thoughts on the subject in a 
 few words, I would say that I find in the 
 aggregate of history, and in all the applica- 
 tion, of modern Roman law, a marked pre- 
 ponderance, rendered necessary to a certain 
 extent by circumstances, of simple erudition 
 over all those factors which otherwise deter- 
 mine the formation and development of the 
 law: the national feeling of legal right, prac- 
 tice, and legislation. It is foreign law, writ- 
 ten in a foreign language, introduced by the 
 learned who alone can understand it per- 
 
 120
 
 Cfje Vornan Hato of *Eo bap 
 
 fectly, and exposed, from the first, to the 
 different and changing influence of two entirely 
 opposite interests, frequently in conflict with 
 each other; the influence, I mean, of science, 
 purely and simply historical, and that of 
 the practical application and development of 
 the law. The practice, on the other hand, 
 has not strength sufficient to dominate com- 
 pletely over the spirit of the matter of the 
 law. It is, therefore, condemned to perma- 
 nent dependence on, to a permanent ward- 
 ship of, the theory; and hence it is that 
 particularism prevails in legislation and in 
 the administration of justice over the weak 
 and limited efforts made to reach central- 
 ization. Can it be a matter of surprise that 
 a gaping abyss stood between such law and 
 the national feeling of legal right, that the 
 people did not understand their law, nor the 
 law the people? Institutions and principles 
 which in Rome were, considering the circum- 
 stances and customs of the time there, intel- 
 ligible, became here, on account of the com- 
 plete disappearance of their conditions pre- 
 
 121
 
 Cfje Struggle for Hato 
 
 cedent, a real curse; and there never was in 
 this world a mode of administering justice 
 with more power than this to shake a people's 
 confidence in the law and all belief in its 
 existence. What can the simple and honest 
 ordinary man think when the judge, before 
 whom he appears with a document showing 
 that his opponent acknowledges an indebted- 
 ness to him of a hundred dollars, holds the 
 signer not to be bound because the document 
 is a cautio indiscreta, or when a document 
 which expressly mentions a loan as the basis 
 of an indebtedness is held to have no force as 
 evidence except after the expiration of two 
 years? 
 
 But I do not intend to enter into details; 
 there is no telling where this might lead me. 
 Rather would I confine myself to pointing 
 out two instances of aberration — I cannot 
 call them by any other name — in our juris- 
 prudence, which are of a fundamental nature 
 and which contain the real germs of injustice. 
 
 The first consists in this, that our modern 
 jurisprudence has entirely lost sight of the 
 
 122
 
 W$t &oman Hato of Co bap 
 
 simple idea already brought out, that there 
 is question in an infringement of one's legal 
 rights, not merely of a pecuniary value, but 
 of the satisfaction of the wounded feeling of 
 legal right. Its measure is the basest and 
 emptiest materialism — money and nothing 
 else. I recollect having heard of a judge 
 who, when the amount of the object in litiga- 
 tion was small, in order to be relieved of the 
 burthen of the trial, offered to pay the plain- 
 tiff out of his own pocket, and who was greatly 
 offended because the offer was refused. That 
 the plaintiff was concerned about the vindica- 
 tion of his legal rights and not about the 
 money, this learned judge could not get 
 through his head; and we cannot blame him 
 for it. He might very easily shift the blame 
 on the science of the law. The money con- 
 demnation which, in the hands of the Roman 
 magistrate, was one of the most powerful 
 means of doing justice to the ideal feeling 
 of legal right which had been wounded, has 
 become, under the influence of our theory of 
 evidence, one of the sorriest expedients which 
 
 123
 
 (Efje Struggle for Hato 
 
 judicial authority has ever made use of to 
 prevent injustice. The plaintiff is required 
 to prove to a farthing the money-value which 
 he has at stake in the suit. What becomes of 
 the protection of the law where there is no 
 such pecuniary interest? A lessor excludes a 
 lessee from a garden which the latter had 
 contracted to enjoy together with the former. 
 How can the lessee prove the money-value 
 of a sojourn of a few hours in a garden? Or 
 the former lets the dwelling before the lessee 
 has taken actual possession of it to another, 
 and the lessee is compelled to put up with 
 the most miserable accommodation for six 
 months, until he finds another dwelling. An 
 inn-keeper shows a guest to the door to whom 
 he had promised a room by telegraph, and 
 the latter may wander about for hours in the 
 night, in search of the most wretched quarters. 
 Try to estimate this in money, or rather, see 
 what compensation the court will mete out 
 for it. In France, thousands of francs; in 
 Germany nothing at all; for the German 
 judge will reply that inconvenience, no matter 
 
 124
 
 W$t Eoman Halt) of Ha bap 
 
 how great, cannot be estimated in money. 
 A private teacher who has made an engage- 
 ment with a private institute, subsequently 
 finds a more agreeable situation, and breaks 
 his contract; another cannot be had immedi- 
 ately to take his place. Let anyone calculate 
 the money value lost by the want of instruc- 
 tion of the pupils in French or drawing, for 
 weeks or months, or the damage in money 
 sustained by the principal of the institute. 
 Suppose that a female cook leaves her place 
 without cause, and that, in consequence, her 
 master is subjected to the greatest embarrass- 
 ment, because he finds it impossible to fill it. 
 How can this embarrassment be estimated in 
 money? In all these cases, people are in 
 Germany entirely helpless, for the assistance 
 which the law offers to one whose legal rights 
 have been invaded supposes proof which he 
 never is able to adduce; an assistance which, 
 even where by way of exception it is possible 
 to adduce this proof, is not sufficient effectu- 
 ally to oppose injustice from the other side. 
 This is nothing else but the reign of injustice. 
 
 125
 
 Cije Struggle for Hato 
 
 It is not the inconvenience to which one is 
 thus subjected that is most burthensome 
 and wounding in all this ; it is the bitter feeling 
 that one's unquestionable rights can be 
 trampled under foot, and that there is no 
 help for it. 
 
 We should not hold the Roman law respon- 
 sible for these defects; for although it has 
 always held to the principle that final judg- 
 ment should always have a money basis, it 
 always knew how to apply the money con- 
 demnation in such a manner that it effectually 
 protected not only pecuniary interests, but 
 all other rightful interests. The condemna- 
 tion to pay a sum of money was the means 
 of pressure which the judge employed in civil 
 matters to insure obedience to his orders. 
 The defendant who refused to do what the 
 judge imposed on him to do, did not get off 
 with the mere money value of the obligation 
 he owed, but the money condemnation here 
 performed the functions of a penalty, and this 
 consequence of the suit assured the plaintiff 
 a satisfaction to which, under some circum- 
 
 126
 
 tEfje Vornan Xato of {Eo=aaj> 
 
 stances, he attached much more importance 
 than to the money ; viz., the moral satisfaction 
 for the frivolous violation of his legal rights. 
 Our present law never affords this satisfac- 
 tion; it knows nothing of it; it takes cogni- 
 zance only of the money-value of the obliga- 
 tion which has not been met. 
 
 In keeping with this insensibility of our 
 present law for the ideal interest affected by a 
 violation of legal right is the doing away with, 
 in modern practice, of the penalties inflicted 
 by private Roman law. The faithless bailee 
 no longer incurs infamy among us. The 
 greatest piece of rascality, if its perpetrator 
 is only skillful enough to evade the criminal 
 law, escapes in our day, entirely free and 
 unpunished. On the other hand, money- 
 penalties {Geldstrafen) and the penalties of 
 frivolous denial, figure in the law books, but 
 they are never applied in practice. But 
 what does this mean? Only that with us 
 subjective injustice is reduced to the level of 
 objective injustice. Between the debtor who 
 shamelessly denies the loan made him and 
 
 127
 
 U£\)t Struggle for Hato 
 
 the heir who does the same thing in good 
 faith; between the agent who has deceived 
 me and the one who has simply made a mis- 
 take, our present law knows no difference. 
 Everywhere the trial turns only on the bare 
 money interest. Our lawyers to-day are so 
 far from believing that the balance of Justice 
 should, in private law as well as in criminal 
 law, weigh the injustice which has been done, 
 and not only the pecuniary interest, that, in 
 daring to speak about it, I must expect to 
 hear it objected that in this precisely lies 
 the difference between criminal law and the 
 law pertaining to the rights of persons. Yes, 
 this is true of our actual law, unfortunately 
 true, but it is not true of law in itself. It 
 would be first necessary to prove to me 
 that there is one part of the law in which the 
 idea of justice should not be realized to its 
 full extent. But the idea of justice is insep- 
 arable from the carrying out of the idea of 
 culpability. 
 
 The second instance of aberration of our 
 modern jurisprudence, referred to above, con- 
 
 128
 
 Cfje Vornan Hato of Eotrap 
 
 sists in the theory of evidence which it estab- 
 lishes. One might think that theory had 
 been invented only for the purpose of frus- 
 trating the law. If all the debtors in the 
 world had conspired together to deprive 
 creditors of their rights, they could have 
 devised no more effectual means to reach 
 that end than has our jurisprudence by means 
 of this theory of evidence. No mathemati- 
 cian can set up a more exact method of proof 
 than the one which our jurisprudence employs. 
 It reaches the acme of irrationality in the 
 actions for damages. The mischief, to em- 
 ploy the language of a Roman jurist, 1 "caused 
 here to the law under the appearance of law," 
 and the beneficent contrast which the intel- 
 ligent mode of action of the French tribunals 
 offers, have been described in so many re- 
 cent works that I need not add anything on 
 it; one thing alone I cannot refrain from 
 saying: Woe to the plaintiff, well for the de- 
 fendant! 
 
 1 Paulus in 1. 91, p. 3, de V. O. (45, 1) "in quo genere plerumque sub 
 autoritate juris scientice perniciose erratur." Only the jurist had here 
 another aberration in view. 
 
 129
 
 &f)e Struggle for Hato 
 
 If I were to sum all that I have thus far 
 said, I might call this last exclamation the 
 watchword of our modern jurisprudence and 
 practice. It has advanced far on the road 
 on which Justinian entered; it is not the 
 creditor, but the debtor, who awakens its 
 sympathy, and it would rather sacrifice the 
 rights of a hundred creditors than, by any 
 possibility, deal too severely with a debtor. 
 
 The person not versed in the law might 
 almost believe that it was scarcely possible 
 to add anything to this partial lawlessness, 
 the legacy to us of a false theory of legists, 
 who busy themselves with our civil law and 
 mode of procedure; and yet, even this theory 
 is surpassed by the aberration of former 
 criminalists, which may be characterized as 
 an attempt on the very idea of law and as 
 the most odious crime against the feeling of 
 legal right committed by science. I here 
 refer to the shameful paralyzing of the right 
 of self-defense, that original right of man, 
 which, as Cicero says, is a law enacted by 
 nature itself, and which the Roman jurists 
 
 130
 
 W$t Vornan Hato of ^Totiap 
 
 were ingenuous enough to believe could not 
 be ignored in any body of laws in the world. 
 (" Vim vi repellere omnes leges omniaque jura 
 permittunt") They might have been con- 
 vinced of the contrary in the last century, 
 and even in our own. The learned gentlemen, 
 indeed, admitted this right in principle, but 
 feeling for the criminal the same sympathy 
 felt by the jurists of the civil law and its mode 
 of procedure for the debtor, they endeavored 
 in practice to limit and curtail it, in such a 
 manner that they protected the guilty and 
 left the person attacked unprotected. What 
 a deep abyss of the degeneration of the feeling 
 of personality, of unmanliness, of the decay 
 and bluntness of the sentiment of legal right 
 opens before us, when we descend into the 
 literature of this theory! We might almost 
 imagine ourselves in the company of a set 
 of chaste, emasculated men. The man whose 
 life or honor is threatened, we are told, should 
 retire or take flight — that is, yield the field 
 to injustice — and these sages disagreed only 
 on one question: whether officers, nobles and 
 
 131
 
 &fje Struggle for Hato 
 
 other persons of position should flee also. A 
 poor soldier who, to obey this order, had 
 retreated twice, but who, being pursued by 
 his adversary, finally resisted and killed his 
 pursuer, was condemned to death as a salu- 
 tary lesson to himself and as a deterrent ex- 
 ample to others. 
 
 People of very high position and of dis- 
 tinguished birth, likewise officers, should be 
 permitted to make rightful resistance in 
 defense of their honor; but, adds another, in 
 limitation of this, in case of mere verbal 
 injury, they should not go as far as killing. 
 There were, on the other hand, other persons, 
 even state officials, who could not be allowed 
 to enjoy this privilege; and the ministers of 
 civil justice were dismissed with the remark 
 that "as mere men of the law, spite of all 
 their claims, they had to depend on the law 
 of the land and the rights it accorded to all 
 alike, and that they could make no further 
 pretensions." The merchant class fared worst 
 of all. "Merchants, even the richest," we 
 read, "constitute no exception. Their honor 
 
 132
 
 tEfje Vornan Hato of Eooap 
 
 is their credit; they have honor only so long 
 as they have money; they may, therefore, 
 without any danger of losing their honor or 
 reputation, bear being called opprobrious 
 names, and when they belong to the lower 
 class, put up with a slap, if not very painful, 
 or a rap over the nose." If the unfortunate 
 man was a Jew or peasant, he was, for violat- 
 ing this prescription, to bear the penalty of 
 prohibited self-defense, whereas other persons 
 were to be punished as "gently as possible." 
 But what is especially edifying is the man- 
 ner in which it was attempted to exclude the 
 right of self-defense when a question of prop- 
 erty was involved. The law of property, 
 some said, was just like that of honor, a 
 reparable loss; the former was repaired by the 
 reivindicatio, the latter by the actio injuri- 
 arum. But how if the robber has taken to his 
 heels and escaped to foreign parts, and no one 
 knows who or where he is? The owner has 
 still de jure the reivindicatio, and "it is only 
 the consequence of accidental circumstances, 
 entirely independent of the nature of the 
 
 133
 
 tEfje Struggle for Hato 
 
 right of property, that, in some cases, the 
 complaint does not always lead to the pro- 
 posed end." With this the person may con- 
 sole himself who carries everything he owns 
 upon his person in the form of valuable papers. 
 He still holds his property and the reivindica- 
 tio, and the robber has nothing but actual 
 possession! This reminds me of the man 
 who, when robbed, consoled himself with 
 the reflection that the robber had not the 
 directions for the use of the stolen object. 
 Others admit that, when the loss of a very 
 large sum is involved, it is allowable to employ 
 force, only as a last resort, but they make it 
 the duty of the person attacked, no matter 
 under how great excitement he may be labor- 
 ing, carefully to consider how much force is 
 required to repel the attack. If he needlessly 
 cracks the skull of the aggressor, where any 
 one who had previously had an opportunity 
 to subject the strength of the skull to an exact 
 examination would have been able to render 
 him harmless by a less powerful stroke, he 
 is held responsible! On the other hand, in 
 
 134
 
 ©be Eoman Hato of ©ooap 
 
 the case of less valuable objects, for instance, 
 a gold watch or a purse with a few guldens, or 
 even with a hundred guldens, he must not, 
 for the life of him, do any harm to his aggres- 
 sor. For what is a watch in comparison with 
 life and limb? The loss of the former can 
 be repaired; the loss of the latter is irrepa- 
 rable. This is an indisputable truth, but 
 that the watch belongs to the person at- 
 tacked and the limbs to the robber, is forgot- 
 ten. Doubtless they have for him an incal- 
 culable value, for the person attacked they 
 have none at all; and then remains the ques- 
 tion: Who repairs the loss of the watch? 
 
 But enough of this learned folly and perver- 
 sity. How deeply humbled we should feel 
 at seeing that the thought, so simple, just, 
 and so much in harmony with the true feeling 
 of legal right, that, in every legal right, be 
 its object only a watch, one's person and all 
 his rights are attacked, had vanished from 
 the law to such an extent that the sacrifice 
 of one's rights and the cowardly flight from 
 injustice could be raised to the dignity of a 
 
 135
 
 Cfte Struggle for Hato 
 
 duty. Can we wonder that cowardice and the 
 apathetic endurance of injustice were the char- 
 acter of our national history at a time when 
 science dared to enunciate such doctrines? 
 Let us congratulate ourselves that we live in 
 very different times. Such theories are im- 
 possible in our days. They can thrive only 
 in the swamp through which a nation, rotten 
 alike from a political point of view and from 
 the point of view of law, drags itself along. 
 This theory of cowardice, of the obligation 
 of sacrificing our imperiled rights, is the most 
 direct opposite of the theory which I have 
 advocated, that the courageous battle for 
 one's legal rights is a strict duty. Not quite 
 so far, yet far enough below the height of this 
 healthy feeling of legal right, lies the level of 
 the view of a modern philosopher, Herbart, 
 as to the ultimate basis of the law. Herbart 
 sees the basis of all law in an aesthetic motive 
 — we can call it nothing else; the dislike of 
 contention. This is not the place to show 
 the complete untenableness of this view, 
 and I am happy to be able to refer to the 
 
 136
 
 {Efje Vornan Hato of <Eo bap 
 
 writings of Julius Glaser for a refutation of 
 it. But if we were warranted to estimate 
 the law from an aesthetic point of view, I do 
 not know whether, instead of seeing what is 
 beautiful in the law in the exclusion of a 
 struggle, I would not rather place it in the 
 admission of a struggle. I have the courage 
 to express an opinion in direct opposition to 
 Herbart's, and frankly to confess myself 
 guilty of finding pleasure in strife. I of course 
 do not here mean a mere war of words, or a 
 contest about nothing. I mean that sublime 
 struggle in which the man stakes his own 
 person and all he has for his own rights or 
 the rights of his country. The person who 
 blames the love of struggle in this sense may 
 wipe out all our literature and all our art from 
 the Iliad of Homer and the sculpture of the 
 Greeks to our own day. There is scarcely 
 any subject which has had so much attrac- 
 tion for the pen of the poet and the brush of 
 the painter as strife and war; and we would 
 have to go far to find the person whose aes- 
 thetic taste is more displeased than pleased 
 
 137
 
 Cfje Struggle for 3Uto 
 
 at the contemplation of the higher display of 
 human power which sculpture and poetry 
 have illustrated. The highest problem of 
 art and literature is man's defense of an idea, 
 be that idea law, fatherland, faith, or truth. 
 But this entering the lists for an idea is always 
 a struggle. 
 
 It is not, however, aesthetics, but ethics, 
 which has to tell us what is in harmony with, 
 and what contradicts, the idea of law. But 
 ethics, far from rejecting the struggle for 
 law, enjoins it as a duty. The element of 
 strife and of struggle which Herbart would 
 eliminate from the idea of the law is an inte- 
 gral part of it, and has been from the first — 
 struggle is the eternal labor of the law. The 
 sentence: "In the sweat of thy brow shalt 
 thou eat bread," is on a level with this other: 
 "By struggling shalt thou obtain thy rights." 
 From the moment that the law gives up its 
 readiness to fight, it gives itself up; for the 
 saying of the poet, that only he deserves lib- 
 erty and life who has to conquer them for 
 himself every day, is true of law also. 
 
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