Rudolf von Ihering - The Struggle for Law.pdf

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1 Struggle for HatoBy Dr. Rudolph vonJhering

Professor of Law it the University STG*ottinen

Translatedfrom the Fifth German Edition

By JOHN J. LALORof the Chicago Bar

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With an Introduction by j

Albert Kocourek Ij

Professor of Jurisprudence in Northwestern University[

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CHICAGOCALLAGHAN AND COMPANY

1915

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Copyright, 1879

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Copyright, 1915

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ContentsPage

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 ofthe Person whose Rights have beenViolated, to Himself 31

IV. The Assertion of One's Rights a Dutyto Society 69

V. Importance of the Struggle for Law toNational Life 97

VI. The Roman Law of To-day, and theStruggle for Law 109

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to tfje SJranslateti "Volwm

By Albert Kocourek 1

T is the fortune of the generalityof men to follow the beaten path,to use tools already designed, andto think in terms already fash-

ioned. In such lives there is no room forcataclysms, or great events; there is no placethere, either, for quarrel with the existingorder, or for effort to alter the acceptedcourse. 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 ofhistory, a labyrinth of lines will cross eachother at a common point to mark out persons

1 Professor of Jurisprudence in Northwestern University,

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of great fortune or misfortune. Such wasthe imagery adopted by an accomplishednovelist to explain his fatalistic views; and ifthere be merit in this sprightly figure, we willhave no difficulty in conceiving an interestingconjunction of favoring lines to explain thebrilliant career of Rudolph von Jhering.

One does not read far into jurisprudencewithout encountering both his name andhis influence. He was a builder of newroads, a maker of new tools, and a creator ofideas. He came upon the world's stage asthe last great influence out of centuries ofstruggle beginning with the revival of thestudy of Roman law at Bologna, and thesuccessive stages of Glossators and Com-mentators, "Mos Italicus" and "Mos Gal-licus," the Practical School and Natural Law,and finally the Historical School, to composethe differences between Romanists and Ger-manists, and to prepare the way for theCivil Code. 1

! For a full account of the development of German law, see "AGeneral Survey of (etc.) Continental Legal History" ("ContinentalLegal History Series," Vol. i), Boston, 1912, p. 311 seq.

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Jhering, the son of a lawyer, was born atAurich on the shores of the North Sea, inEast Frisia, August 22, 1818. He studiedlaw at Heidelberg, and (after the establishedcustom of German students who wanderfrom one university to another) also atMunich, Gottingen, and Berlin. He becamea "Privat-Docent" at Berlin in 1844 justas Gustav Hugo, the founder of the His-torical School which Jhering was later tooverthrow, laid down his labors in death.He became ordinary professor a,t Basel 1845,Rostock 1846, Kiel 1849, Giessen 18S2,Vienna 1868, and at Gottingen 1872, wherehe remained until his death on September7, 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 ofJhering more completely than can be here attempted: M. di Jonge,"Rud. von Jhering" (1888); A. Merkd,"R\id. 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 desgedachtnisses von B. Windscheid und R. v. Jhering" (1893); MunroeSmith, "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 fromPapinian to von Jhering."

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century, it is not unlikely that he wouldhave gained fame in any other calling wherepersonality, a comprehensive and lively dom-ination of complex realities, or the literaryquality might play a part in the attainmentof success. The power of his personalityis attested by the fact of his great popularity;his lectures were always crowded with listen-ers; and his home was the shrine at whichthe devoted from all quarters of the worldworshiped. Ideas were obliterated and meneffaced before him. Merkel, who himselfbecame a jurist of great fame, says thatafter hearing Jhering lecture on Roman law,the discourse of Vangerow became a closedbook. He was able to arouse great enthusi-asm, to attract the multitude from withinand without the university, and to enlivenwith bright colors the neutral themes of thelaw. He could sway the world both by hispersonal presence, and in no less degree byhis writings. It is natural to speculate asto what might have been the career of sucha man if his labors had dealt not alone with


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the learned public, but with the unorganizedand unthinking masses in issues more stirringthan the unemotional materials of legalscience. At a hospitable juncture he mighthave created or subverted a dynasty. TTheliterary quality of Jhering's writing is wellshown in the opening lines of his "Geist,"which might be mistaken for the statelymeasures of a sonorous epicl Another phaseis exhibited in the address here published.Never before has a moral duty been assertedwith such eloquence; never before has a "laysermon addressed to the conscience" x beenmore spontaneously and widely accepted.Within two years this address went intotwelve editions, and although first publishedin German more than forty years ago, it isstill being republished, the last Germanedition 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 hisanalysis. This study also shows the dominating importance ofJhering, and Prof. Smith's essay might well have been entitled"Jhering and Three other German Jurists," for the others are onlyas foils in the play.

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It has appeared in nearly thirty differentlanguages, including Japanese. There havebeen two translations into English, the presentrendering by Mr. Lalor first published byMessrs. Callaghan & Co. in 1879, and aversion published at London in 1884 underthe title "Battle for Right." The presentwork has even been the inspiration of anovel 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-calledgeneral reader; as a rule they are limited tosome definite system of law and to thosetechnically learned in that system. A largepart of Jhering's writings, however, carriesan interest uncircumscribed by geographicalboundaries, and has gained the widest re-ception of perhaps any European jurist, notalone among those learned in the law, butalso among the cultured lay classes. It isnot difficult to understand this fortunateand unusual extension of Jhering's fame; forit appears to rest on two chief grounds:

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first, that he treated by preference whatAustin has called pervasive legal ideas

ideas of universal significance, ideas un-limited by the accidents of history, or theparticularities of legal systems; and, second,that he had the faculty of powerful literarypresentation^ Jhering was a philosopher inthe law, if not of the law, and had he beenless, it is not unlikely that he would haveremained a national factor of limited im-portance, instead of becoming an internationalfigure.

Comparative biography was a completelyrealized art before comparative law waseven thought of; and writers who have dealtwith 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 thesame year and within a few weeks of Jhering,and whose span of life was almost identicalwith his), or Savigny, the most conspicuous

representative of the Historical School. Thedissimilarities are striking in either case

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whether we consider the contrasted figureseither from the point of view of personality,method, or ideas. Savigny, aside from beingthe leader of a great school, was the greatestRomanist of the first half of the nineteenthcentury. Jhering at the age of 24 had writtena doctoral study, "De hereditate possidente"(Berlin, 1842), which already was considereda "remarkable dissertation," and when in1852 (at the age of 34) he published thefirst volume of his "Geist," the star ofSavigny's genius paled in the glare of Jhering'srising fame.,The theory of the Historical School, of an

unconscious growth of law, was contradictedby Jhering, who insisted on conscious purposeas the dominant factor of legal evolution.1 J

Two observations may be permitted atthis point: firstjOthat fundamental theoriesin the science of law necessarily produce

1 Tanon, "L'Evolution du Droit et la Conscience Sociale" (3ded., Paris, 1911), p. 44 seq. This part of Judge Tanon's essay hasbeen translated as an appendix to Jhering, "Law as a Means," etc.(see note p. ix, supra); Alessandro Levi, "Contributi ad una Teoriafilosofica dell' ordine giuridico," Sec. 34, p. 402 seq.

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important consequences either first or lastin any legal system. The legislative eracould not have come to pass so long as theHistorical School remained in the ascendancy.If it is to be supposed that Savigny intendedto assert an irremediable lack of competencein the people to attain the conscious stage

of legislation, then that distinguished juristwas spared some part of the mental anguishof witnessing the historical refutation of

such a position, had his life been prolongedanother quarter of a century.- He himselfbecame Prussian minister for the revisionof legislation, and lived to see the formulationof- the General German Bills of ExchangeCode (1847) and the General German Com-mercial Code (1861) in the time of the "Bund";but a benignant fate closed his eyes beforethe date of the imperial statute (1873) whichauthorized a commission to codify the wholedomain 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

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realm of causality is likely to assert toomuch. It is entirely clear to us now thatthere was an important element of truth inthe theory of an unconscious development oflaw; it is equally apparent that the principleof purpose is also true." The error lies onlyin claiming an exclusive operation for eithertheory of law. It is, however, one of themost interesting phases of historical studyto trace out the actions and reactions ofideas, and Jhering was a man who was ableto do this with a lofty and inspired outlookon the manifold complication in the restlessflow of life. The ascending spiral of evolu-tion of juristic thought is plainly visible, tospeak only of recent centuries, in the age ofrationalism with its revolutionary by-productwhich gave way to an era of reactionaryconservatism in the Historical School, andwhich later is supplanted by the epoch oflegislation and socialization of the law. But,now, to attempt a simple generalization ofcausality in history, even with our betterfortified knowledge, and in the light of an

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accumulation of experience, would likely beas dangerous and as inadequate as before.It should be noticed that when we speak ofcausality we enter the sphere of the historian

and jurist, provinces where Jhering attainedhis surest fame. It is true that Jhering laterattempted the treacherous problem of finality a problem perilous even for the trainedphilosopher but it is believed that if hehad restricted himself to his earlier aspira-tions that his labors would have remained astanding monument of unquestioned juristicscholarship throughout the corroding pro-cesses of time.

Merkel makes an illuminating comparisonbetween Savigny and Jhering sufficient initself to explain the differences of character

of these two great civilians. 1 Savigny, he says,

retired to the shadows of his canvas. Bothwere masters of expression, but Savigny hid

his personality behind his work, while Jheringprojected himself in living reality in everyline, j He attempted, as Merkel again says, to

1 Op. cit. (p. ix note 1, Bupra).

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carry his reader by storm. Savigny shelteredhimself in a mantle of reserve and directedhis forces of ideas from a sequestered distance,while Jhering waged his battles on the firingline and determined the issues of war by thecommanding aid of his conquering presence.Of Windscheid, who was the great figure

at Vienna when Jhering was the chief attrac-tion at Gottingen, we may speak again inconnection with a fundamental legal theorywhich has turned out to be of the greatestpractical moment, and which has been apoint of great controversy in German legalscience for several decades. 1 fWindscheiddefined rights from the standpoint of pro-tection of the will,2 while Jhering madeinterests the essence of rights.j The logicalconsequences 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 LeealPhilosophy Series," i), p. 33.

2 "Recht ist eine von der Rechtsordnung verliehene Willensmachtoder Willensherrschaft,"Windscheid, "Lehrbuch des Pandekt-earechts," 9th ed. (Kipp), 1906, erster Band, p. 156 (and note 3).

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contrary, leads to the exact opposites, andinvests the law with a positive social func-tion.1 Windscheid adhered to his positionto the last, but Jhering's view has attractedthe greater number of followers, and seemsmore nearly to indicate the real nature of

rights as accepted by any of the present-dayschools of legal philosophy.Without the notion of interests, formulated

by Jhering in the "Geist," he could not havereached the conception of the "Zweck."

If rights are legally protected interests, it

follows that the State must determine whatinterests it will select as fit for protection,

and this question then logically develops thefurther inquiry of purpose in the law, whichJhering stated in the form of the principle,"the object is the creator of the law."- Onthis three-rung ladder of reasoning, he at-

tempted to ascend the philosophic heights,and whatever may be thought of his effortsit 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 ofLaw" (Hasting's tr.) ("Modern Leg. Phil. Ser.," iv), p. 107 seq.

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if not a metaphysical, foundation for a newjuristic construction which enabled the lawto emerge from the blind alley into which ithad entered in following Kant.

It is perhaps still a question whether phi-losophies create movements in the outerworld, or whether they only reflect or followthese movements; but in any case the socialutilitarianism of Jhering came in season tosynchronize with the most significant develop-ment of the law in modern times the changefrom the individual to the social emphasis.Jhering's solution was not, however, the onlyescape 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, theleading exponent of a revised Kantianism,is unable to lay down a single positive prin-ciple to govern the attitudes of the law,; Thedifference between "do not" and "do" is allthat separates the civilizations of the Orientand Occident, and a system of legal phi-losophywhich makes the function of the State

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no different from that of a street-crossingpoliceman can never be productive of any-thing less unprogressive than a Chinesesystem of law. Even with its philosophicand psychological shallowness, the "Zweck"of Jhering is therefore to be preferred overthe "Richtiges Recht" of Stammler.Compared with an encyclopedic creator

like Kohler, who many years ago engaged in atypically German exchange of ideas withJhering in connection with the Shylock prob-lem raised in this work,1 but who has livedto supplant Jhering in the kingdom of fameand take unto himself the extraordinarydistinction of the world's juristic leadership,

the latter's works are not extensive beyondexpectation either in bulk or item.

Briefly, Jhering's works are the following:

(1) "Abhandlungen aus dem romischenRecht" (1844); (2) " Civilrechtsfalle ohneEntscheidungen" (1847); (3) "Geist desromischen Rechts auf den verschiedenen

1 Kohler, "Shakespeare vor dem Forum der Jurisprudent"(Wurzburg, 1883), and "Nachwort" (1884).

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Stufen seiner Entwickelung" (4 vols., 1852-65); (4) "Das Schuldmoment im romischenPrivatrecht" (1867); (5) "liber den Grunddes Besitzeschutzes" (1868); (6) "Die Juris-prudenz des taglichen Lebens" (1870); (7)"DerKampfumsRechts" (1872) (the presentwork); (8) "Der Zweck im Recht" (2 vols.,1877-83); (9) "Vermischte Schriften juris-tischen Inhalts" (1879); (10) "GesammelteAufsatze" (3 vols. 1881-86); (11) "DasTrinkgeld" (1882); (12) "Scherzund Ernst inder Jurisprudenz" (1885); (13) "Der Besitz-wille: Zugleich eine Kritik der herrschendenjuristischen Methode" (1889); and posthu-mously: (14) "Vorgeschichte der Indo-Euro-paer" (1894); (15) " Entwickelungsgeschichtedes romischen Rechts: Einleitung" (1894). l

1 Jhering has been fortunate above all his jurist contemporariesin a wide and important extension of his writings into foreign tongues.The "Geist" (No. (3) ), and several of his other works have beentranslated into French; there has also been an Italian translation ofthe "Geist," and further translations based on the French, intoPortuguese, Spanish, and Japanese. Although no European juristis better known in America or England than Jhering, there has un-fortunately been no English translation of this work, parts of whichare of great importance for what Austin calls " general," and whatSalmond styles "theoretical" jurisprudence.

The "Jurisprudenz" (No. (6) ) according to the author's preface

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Jhering labored diligently until the last,and although more than seventy years of ageat his death, he left behind him many thingsin preparation, unaccomplished. ^His im-pulse to create was boundless; each ideadeveloped a series of more general ideas, andhis physical body was unable to keep pacewith his mental activity.* For this reason,his chief works are admittedly only fragments.

to the eighth edition (1891) had been then already translated intoItalian, 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 inanalytical jurisprudence. Jhering's keen sense of legal realities ishere shown developed to the highest degree. No one but a manthoroughly saturated with the feeling of the omnipresence of the lawand legal relations would think of raising the question whether aguest at a hotel can take away the candles with which he has beencharged, or whether he can put into his pocket fruit served at thedinner table (Goudy's translation, p. 24). Dr. Wigmore, dean ofNorthwestern University School of Law, perhaps, under the sug-gestion of this notable use of the incidents of everyday life, haspublished in his casebook on torts a collection of instances verysimilar in their novelty, interest, and analytical value.

The "Zweck" (No. (8) ) has been translated into French and thefirst volume is soon to be issued [now out] in an English translation ofDr. Isaac Husik of the University of Pennsylvania ("Modern LegalPhilosophy Series," Vol. v), by The Boston Book Company. Thistranslated volume will contain valuable introductory material whichthe 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 theOlympian gods indulged their levities, and did not narrow themselves

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The "Geist" remained uncompleted when heconceived the "Zweck," and the latter workwas only a part of his plan to treat the wholedomain of the normative divisions of sociallife. The present work was a fragment thrownoff in the development of the "Zweck."

,Of Jhering's achievement the "Geist" willno doubt be permanently regarded as his

to councils of lightnings and thunderbolts. Juristic humor, how-ever, is something quite unknown in our literature.^' The nearestapproach, to take a recent example, is Sir Frederick Pollock's "Geniusof the Common Law," a work dealing with the strains and thrusts ofour legal system. The chapter entitled "Surrebutter Castle" showswhat a lighter touch may do with such a recondite and bitter subjectas special pleading. But Sir Frederick's humor in comparison withvon Jhering's is always somewhat Saturnine, or, even from anotherpoint of view, Euclidean. Jhering's contribution to this form ofwriting is his "Scherz und Ernst" (No. (12) ) which is made up ofanonymous articles published while he was at Giessen, and "Talks ofa Civilian" published at Vienna. The vehicle is one of amiability,but the theme is a serious one for the law. It may be considered aloss to us that this work is not in English, since the problems raisedthere are just now of special interest in view of the widespreadchanges which are giving an entirely new character to the wholeface of the Common Law.

Of the remaining works the "Vorgeschichte" (14) has also beentranslated into English. This work has not added anything toJhering's fame, and it may be questioned whether he had suffi-ciently familiarized himself with the extensive range of workingmaterials upon which such an ambitious undertaking should ofnecessity be founded. This work therefore in the field of universalhistory is defective for the same reason as the "Zweck" in thedepartment of general philosophy, in that it attempted problemsbeyond the author's special, knowledge and experience.

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greatest effort. 1 ^ When it began to be pub-lished, Rudorff, a civilian of the HistoricalSchool, referred to it in terms of reproachin his "History of Roman Law" (1857-59);but this reflection was one of the last feeblegroans of an expiring and superseded theory oflaw. How frequently a fond parent is unableto judge impartially and justly of his ownchildren is shown in the history of literature."Jhering rated his "Zweck" far above his"Geist,","and could he have realized that thejudgment of posterity would be otherwise, itwould no doubt have been for him a matter ofkeen disappointment even though his prefaceto the "Zweck" foreshadows the result.

Jhering's creative period may be dividedconveniently into two parts, taking his fiftieth

year as the point of separation. The worksof the earlier period are distinctly to bepreferred 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 tr.) ("Mod. Leg. Phil. Ser.," ii), p. 337 seq.

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years, there is apparent a gradual declina-tion in the sound value of their fruits. Hisposthumous writings are decidedly in con-trast, and to their disadvantage, with thestudies of his earlier years.1 He rose up outof a national law to an universal law, but ashis ideas became more general they also atthe last became more tenuous. ^As a realistconfining himself to facts which he apprehend-ed with the intuition of genius, and dealingwith "practica" he was incomparable;! butwhen he attempted the flight into an aliencountry he left behind him the substantialproducts of a vigorous and fertile intellect toenter a domain as empty as the "Begriffs-himmel" created by him for the Romanists.

Jhering's claim to great distinction may besaid to rest, in summary, on the followinggrounds

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1. He universalized Roman law, approvingat once its reception, and the changes whichhad been made in it in the middle ages, andthus took a middle ground which compromised

1 See. Posener, "Rechtslexikon," i, s. v. "Jhering."

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in effect the rigid nationalism of the HistoricalSchool and the patriotic clamors of the Ger-manists. The Romanists would have imposedupon the country the Byzantine law, whilethe Germanists would have destroyed itroot and branch. Jhering's attitude in thiscontroversy is shown by the fact that jointlywith Gerber, a Germanist, he founded (1856)a journal for the study of the dogmatic ofmodern Roman and German private law.This conflict between the law of a foreign andextinct empire and the living domestic cus-toms was a heritage of centuries; and whilethe perpetual struggle had somewhat abated,credit is due to Jhering for throwing the weightof his influence in the direction of the only

practical and possible solution of Germany'seffort to attain a unified system of law.

2. He is the founder of modern legal realism,and the progenitor on the juristic side, asComte is the ancestoron the philosophical side,of the Sociological School of Jurisprudence.

Jhering was a bitter (if not always coiv-

sistent) enemy of the subjective; this appears

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when he opposes, in his great work on posses-sion, Savigny's animus theory ;K in his con-ception of rights when he rejects the willas the central factor; in legal method, whenhe sets up a jurisprudence of facts againsta jurisprudence of concepts. The cultivationof Roman law had developed into a deductiveprocess of legal reasoning which sought tomake the realities of later centuries and al-tered circumstances of elapsed time fit ar-bitrarily the verbal form of ideas of the ageof Paulus.2 But yet Jhering was not theenemy of the subjective in his treatment oflegal evolution since this evolution itself isthe expression of purpose. Law is not onlyteleological but psychological. The psychol-ogy of legal institutions, however, must havea factual basis, and can not be confined, heinsists, to a purely conceptual and unhistoricalsystem of ideas governed by fixed logicalconstructions. *

1 Munroe Smith, op. cit.; Salmond, "Jurisprudence," 3d ed.,p. 263 seq.; Holland, "Elements of Jurisprudence" (11th ed.), p. 196seq.

2 Sternberg, "Allgemeine Rechtslehre," erster Teil, p. 191 seq.

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It can hardly be claimed that Jhering wasthe first to raise the enduring problem oflegal method, but never before or since hasthe purely conceptual method been assailedwith greater vigor or efficacy. Jhering'schief merit here lies in his having brought thisquestion into clear relief and in having ad-vanced the teleological factor which residesin all legal rules. Neither the "Geist" northe "Zweck" contains a minute and thor-oughgoing analysis of the problem of legallogic, and the "Scherz" was much too literaryin quality to furnish a solution. Jheringcombated the over-extension of the conceptualprocess, but the ardor of satirical attack didnot permit him to examine to find the boun-daries of its necessary and justifiable operation.Nor does an inspection of the later literatureof legal method disclose, in German literatureat least, except in a few noteworthy instances,

that the weapons of offense have been melted

down to implements of husbandry. 11 See in this connection, Gnaius Flavius (Kantorowicz), "Der

Kampf um die Rechtswissenschaft" (1906), and the authoritiesentered on p. 50. The realistic trend of thought which had its

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3. Lastly (passing over Jhering's un-questioned prominence as an historian of theRoman law, his authority on various specialquestions of dogmatic law, and his strictlyprofessorial labors),- Jhering's great claim todistinction is due, as already suggested, tohis treatment of the nature of legal rights bywhich he established the juristic basis for asocial 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 greatpractical importance of his original discovery.Unless it must be said that the world moveson regardless of the thoughts of legal scientistsand legal philosophers, it is inconceivablethat civilized States could have broken thebarriers of the eighteenth century without

origin in Jhering's war on the concept jurisprudence is now knownin Germany under the name of'freie Rechtsfindung" after Ehrlieh'sbook of that title. Strangely enough, this tendency in legal methodhas attracted representatives from the most diverse positions inlegal philosophy.

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the lever of Jhering's idea. Little imaginationis needed to portray a horrible distortion ofsocial life under the pressure of learning andinvention of the last hundred years, operatingwithin 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 isdeservedly entitled to a leading place amongthe world's creative jurists. '

Of the present work, it may perhaps withconsiderable justice still be said as wasclaimed by a competent reviewer on theappearance 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"; butit may be asserted with less provocation tochallenge that^it is one of the most famousspecimens 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).

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(1) a moral duty in the assertion of rights is anundemonstrable 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'sproposition of a duty to maintain one's rights before the law hascertain affinities with the doctrine that it is the right and the duty ofStates to make war. The same biological arguments support bothpoints of view. Such militant programs to be thoroughly consistentmust regard as undesirable all agencies which substitute for thewounds and destruction of the combat. In the struggle for rightseven the State itself, from this standpoint, must be considered abiological obstruction. Those who assert the moral right and neces-sity of nations to make war to serve their interests, do not hesitate tosay 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-assertioncould be imagined to have any validity is one of political non-inter-ference. In the primitive days of private vengeance such a theoryprobably would need no qualifications; but as soon as the State ceasedto be a mere military machine, and found it expedient to interfere inprivate quarrels in the interests of peace, the biological argumentbecame less clear and the moral aspect of the question more doubtful.For the ritualistic trial ceremonies of early law were not the same asthe blood feud either biologically or ethically. At any rate, eventhough the litigant fought his pwn legal battles, and would not atthat day, as a matter of honor, indulge the unmanly ease of a lawyerto speak for him, earthly and supernatural hazards had intervenedwhich sometimes thwarted the bristling demands of courage. Andnow, in the modern age, when the State seeks to do justice betweenthe parties, the hazards of litigation have become still more complexand fruitful. The modern court is little like the tribal assembly, andone now will hardly seek the law-courts to vindicate his courage or topromote his honor. A sad chapter could be written on the mannerin which the State has discouraged the taste for litigation. We haveonly to think in this connection, among a number of things, of the

xxxu


Sntrobucttott

rights may sometimes be more effectivelymanifested than by procedural methods. 2

Albert KocourekNorthwestern University.

dishonored position of the witness which has become a factor of nolittle 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 toprimitive justice could bring out the spirit of self-assertion which hasdeparted from the law and sought other channels of expression.

2 Even commercial litigation is seeking an escape from the delaysand difficulties of justice. It must be clear, therefore, that theprocedural situation offers no advantages to purely ideal reactionsagainst what the author calls subjective injustice. But there is adeeper reason which impels self-assertion to seek either the path of"club-law," or, more likely, silence. When Jhering composed thisaddress (1872) he could hardly have foreseen the centralization oftrade, industry, credit, and population which has within the lastdecades revolutionized the earth. In ancient society individualrights were submerged in the activities of the group. Personalityhas never been quite as well protected by the law as the claims ofproperty; but when Jhering wrote, rights of individual persons hadalready 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 theloss of his identity. The modern world with its systems, its effi-ciencies, and its pragmatisms (and we say it with regret) is crushingdown the picturesque freedom and initiative of the individual. Itwill require another era to restore him to the position to which Jheringwould have exalted him.

mm


translator's jgote

]HE following extract is from thepreface to the French translationof Dr. von Jhering's essay. Theauthor, in the course of his work,

refutes the Savigny-Puchta theory of theorigin of the law. To explain that theorymore fully, he furnished the following to theFrench translator:

" Scarcely was Germany free from the warsof Napoleon I, than the desire to see the lawsof the nation reduced to a code was mani-fested, and Thibaut, one of the most renownedlegists of the period, publicly employed hiseloquence to promote that end. There wasnothing surprising in the fact that this wishdid not find the least favor among the princesand governments of Germany. They wereonly too well aware of the necessity in whichtheir interest placed them to preserve, as

xxxv


translator's Jlote

far as possible, the existing confusion, bothpolitical and judicial, of the country. Whatwas most to be wondered at, was that Germanlawyers who, it seems, should have had onlyone opinion on this subject, protested againstthis attempt, through the agency of one oftheir most illustrious representatives, Savigny,who, in support of this protest, publishedunder the title: 'Vom Beruf unsrer Zeit furGesetzgebung 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. I Savigny's object was to represent asunreasonable the desire of reducing the laws toa 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 anexample of this (as if the laws of the XII.Tables and the Praetorian Edicts never hadexisted), and in unhappy times (like those inwhich he lived), people possess neither thenecessary political education nor the ability

xxxvi


translator's; Jlote

required for such an enterprise; and he en-deavored to prove his assertion by isolatedpassages drawn from Prussian, Austrian andFrench 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 exchangethe professor's chair for the chief position in

the Department of Justice, especially createdfor him. Savigny, the theorizer and opponentof legislation, had the weakness to accept thepost, and he found the means to demonstratefully what he called: 'the want of calling ofour own time for legislation,' when the regula-tions relating to letters of exchange, and theGerman commercial code which appearedalmost in the same epoch, strikingly dis-

proved his assertion.r "The theory which he advanced on thisoccasion on customary law and legislationwas 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


Gfraitflator'g Jlote

law has been, the world over, the law of cus-tom. This law has neither been created norsought 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 customis the natural form of all law, in the presenceof which legislation is something artificial,mechanical, an encroachment into the orderof nature. The legislator is, so to speak, tothe law of custom what the physician is tonature. Nature should help itself; the phy-sician should interfere as seldom as possible;for his very presence shows that the normalcondition 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. Withhim, the law of custom comes first, and legis-lation afterwards. Why? we ask in won-der. The author gives us no reason but hispreconceived opinion, according to whichsuch was the primitive condition of things.,As the ancient institutions of the Romans

xxxviii


translator's Jlote

could not be traced to legislative acts, Savignyconcludes that they came into existence ofthemselves. Might we not with equal reason,maintain that the man who cannot tell whohis great-grandparents were, had none ?jj Hereis the cause of this error. The memory ofthe origin of legal principles is lost in thecourse of centuries. IThat which, at first, itwas necessary to go in search of, to obtain bystruggling for, acquires by long use, a moralauthority over minds, so great, and an exter-nal fixedness such, that it seems quite naturalthat it should have been always in force.Such is the mirage which deceived SavignyJHis theory has no other basis, and it has beenpossible only because the earliest time doesnot tell us how the principles of law came intoexistence. If, as became the representativeof the Historical School, Savigny had framedhis theory of the relation of legislation tothe law of custom in accordance with historywhich affords certain information on this"question, he would have seen that the opinionthen admitted, and to which he attached so

zxtiz


translator's Jlote

little importance, was entirely true, thatlegislation is the normal source of law, andthat the law of custom is simply a secondaryand limited source of action. This opinionwent too far only in the sense that it ascribedtoo much to the power of legislation. "And,indeed, the omnipotence of the legislator wasan article of the creed of the absolutism whichgoverned in the seventeenth and eighteenthcenturies. It was believed that all that wasneeded to change the very nature of thingswas 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 wasmost legitimate and beneficent, but this wasnot sufficient warrant to ignore the possibilityand efficiency of a codification, and thatgreat man in combatting an exaggerateddoctrine 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."

zl


translator's Bote

That what Dr. von Jhering says of theorigin of the law in general is true of theorigin of the common law will scarcely bequestioned; and we may therefore venture tosay that this little work is likely to prove asinstructive to the common law lawyer asto the student of Roman law. The " practico-ethical" question which it discusses is onenot of times or places. It is as urgent in

America as in Austria, and especially deserv-ing of attention in the United States at thepresent time.

JOHN J. LALOR.

xli


Sudor's prefaceto tfje Jftftb Coition

N the spring of 1872, I delivered,before a society of jurists in Vienna,a lecturg which I published in thesummer of the same year, materi-

ally enlarged, under the title: "The Strugglefor Law." In its latter form, it was intendednot for lawyers only, but for the general read-ing public. The object I had in view inwriting and publishing the essay was, fromthe first, less a theoretical than a practice^ethical one. ^1 was concerned, in preparingit, not so much with the promotion of thescientific study of the law as with the cultiva-tion of the state of mind from which the lawmust ultimately derive its strength, viz.: thecouragepus and constant exercise of the feel-ing of right/Two months after the appearance of the

xliii


gutfior'g -preface

first edition, a second became necessary; dur-ing the following year, a third, and the yearafterwards a fourth. When issuing the last,my publisher proposed that I should preparea cheap popular edition, at a much lowerprice, in order to give it as wide a circulationas possible. This end could be attained onlyby giving the work a much plainer dress andby making the edition unusually large. Aseven the previous editions had exceeded theordinary size, and as the foreign market forthe work grew smaller and smaller, by reasonof the numerous translations made of it, Idid not venture to believe that a fifth editionwould become necessary. But the fact thata fifth edition is called for, is proof to methat this little book owed its success, on itsfirst appearance, not to the charm of novelty,but to the conviction of a very large circle ofpeople, that the fundamental view here advo-cated is correct; and in this belief I amstrengthened by the many translations of itwhich have been made.The following translations appeared in 1874:

xliv


Sutgor'g 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. VanHamel. Leyden.

6. A Roumanian, in a journal publishedin 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. Briinn.12. A Polish, by A. Matakiewiez. Lem-

berg.

13. A Croatian, by H. Hinkovic. Agram.xlv


^tutor's! preface

In this present fifth edition I have changedthe style of the work somewhat, and entirelyomitted the former beginning of the work,for the reason that, considering the meagre-ness of my space, it had to do with ideas notfully intelligible to the laity nor of much useto lawyers. Whether it would not have beenbetter, in view of the large circulation whichmy 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, becausethe passages referred to do not seem to haveat all interfered with the circulation of thework among the general public, and because,perhaps, the lawyer might not like to missthem here.

In the subject itself, I have not changedanything. ~I still consider the fundamentalidea of the work so undoubtedly true andirrefutable that I look upon every word saidin opposition to it as lost. The man who doesnot feel that when his rights are despised andtrampled under foot, not only the object of

xlvi


Sutfjor'a preface

those rights, but his own person, is at stake;the man who, placed in such a condition, doesnot feel impelled to assert himself and hisrights, cannot be helped, and I have no inter-est in trying to convert him. Such a man is atype which must simply be acknowledged tobe a factj Egotism, without any redeemingquality, and materialism are the traits whichdistinguish him. He would not be the SanchoPanza of the law if he did not see a DonQuixote in every one who, in the assertionof his rights, looked to any other interests

than the most grossly material. TTo him Ihave nothing to say but these words of Kant,with which I was not acquainted until afterthe appearance of the last edition: "When aman has made a worm of himself, he cannotcomplain if he is trampled under foot." 1.* Inanother place Kant calls this "the casting ofone's rights under the feet of others, and theviolation of man's duty to himself." Andfrom "duty in relation to the dignity of

1 a*,"MetaphysicbeAnfangsgrundederTugendlehre." Aufl. 2.KreuznatH: 1800. S: 133:

xlvii


gfotfjor's preface

humanity in us," he draws the maxim: "Letnot your rights be trampled under foot byothers unpunished." This is the idea whichI have developed further in this little work.It is engraven on the hearts of all vigorousindividuals and nations, and has found expres-sion in a thousand ways." The only meritI can claim is that I have more fully devel-oped the idea. An interesting contributionto the subject of my essay has been furnishedby Dr. A. Schmiedl, in his "The Struggle forLaw in its Relation to Judaism and EarlyChristianity." Vienna: 1875. The sayingof the Jewish professor: "Whether the objectof thy right be a penny or a hundred dollars,let it be the same in thy eyes," agrees entirelywith the position I maintain.

I now leave it to my essay itself to convincethe reader of the correctness of the view whichit defends; and in doing so I have a doublerequest to make of those who feel called uponto refute me. "I would ask them, first, not todistort my views and charge me with a desireto stir up strife, or with inculcating a love of

xlviii


atatijor'a preface

litigiousness, when I only insist on the strugglefor law where the attack on one's rightsinvolves a slighting of the person also^ Thedisposition which is ready to yield or to bereconciled, 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. I What it is opposedto is simply the unworthy endurance ofwrong through cowardice or indolence.^The second thing I ask is that the person

who seriously desires to obtain a clear ideaof my theory, would make the attempt, inthe place of the positive formula of practical

procedure which it develops, to put anotherpositive formula. He will then soon discoverwhither his course will lead him. The ques-tion is:" What should a man do when hisrights are trampled under foot? The personwho can give a tenable answer to the question,that is an answer compatible with the exist-

ence of law and order and with the dignityof personality has refuted me. The personwho cannot do this, must agree with me or be

xlix


&uti)or'0 preface

satisfied with superficiality, the mark of mud-dled minds,] which may indeed be rendereddissatisfied and landed in negation, but whichcan reach no positive view of their own. Inpurely scientific questions, one may limit him-self to the simple refutation of error, evenwhen one is not in a way to point out thepositive truth; but in practical matters,where it is certain that one must act, and thequestion is only how he must actit is notenough to disregard the positive directionsgiven by another as wrong, but he must putsomething in their place. I shall wait andsee whether this will happen in respect tothe 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 injusticewas done to Shylock.

I have not contended that the judge shouldhave recognized Shylock's bond to be valid;but that, once he had recognized its validity,he should not, subsequently, have invalidatedit by base cunning. The judge had the choice

1


gtat&or'ji $reface

of deciding the bond valid or invalid. >Heshould have declared it to be the latter, buthe declared it to be the former. Shakespearerepresents the matter as if this decision wasthe only possible one; no one in Venice doubtedthe validity of the bond; Antonio's friends,Antonio himself, the court, all were agreedthat the bond gave the Jew a legal right.And confiding in his right thus universallyacknowledged, Shylock calls for the aid of thecourt, and the "wise Daniel," after he hadvainly endeavored to induce the revenge-thirsty creditor to surrender his right, -recog-

nizes it. And now, after the judge's decisionhas been given, after all doubt as to the .legalright of the Jew has been removed by thejudge himself, and not a word can -be saidagainst it; after the whole assembly, the doge

included, have accommodated themselves tothe 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 hadsolemnly recognized his rights, renders those

li


gutfior'g preface

rights nugatory by an objection, a stratagemso contemptible that it is worthy of no seriousattention. Is there any flesh without blood?The judge who accorded Shylock the rightto cut a pound of flesh out of Antonio's bodyaccorded him, at the same time, the right toAntonio's blood, without which flesh cannotbe. Both are refused to the Jew. He musttake the flesh without the blood, and cut outonly an exact pound of flesh, no more and noless. Do I say too much when I assert thathere the Jew is cheated out of his legal right?True it is done in the interest of humanity,but does chicanery cease to be chicanerybecause practised in the name of humanity?

RUDOLPH von JHERING.Gottingen, Feb. 24, 1877.

Hi


Wilt Struggle for Hato


Wsnt Struggle for Eato

CHAPTER IORIGIN OF THE LAW

HE end of the law is peace. Themeans to that end is war. Solong as the law is compelled to holditself in readiness to resist the

attacks of wrong and this it will be com-pelled to do until the end of time it cannotdispense with war. TThe life of the law is astruggle, a struggle of nations, of the statepower, of classes, of individuals.

All the law in the world has been obtainedby strife. 2 Every principle of law which ob-tains had first to be wrung by force from thosewho denied it; and every legal right thelegal rights of a whole nation as^well as thoseof individuals supposes a continual readi-


Cfje Struggle for Haiti

ness to assert it and defend it.. The law isnot mere theory, but living force. And henceit is that Justice which, in one hand, holdsthe scales, in which she weighs the right,carries in the other the sword with whichshe executes it. The sword without thescales is brute force, the scales without thesword is the impotence of law. The scalesand the sword belong together, and the stateof the law is perfect only where the powerwith which Justice carries the sword is equalledby 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 oneglance, presents us with the same spectacle ofrestless striving and working of a wholenation, afforded by its activity in the domainof economic and intellectual production..Every individual placed in a position in whichhe is compelled to defend his legal rights,takes part in this work of the nation, andcontributes his mite towards the realizationof the idea of law on earthr


rigin of tfje ILato

Doubtless, this duty is not incumbent onall to the same extent. Undisturbed bystrife and without offense, the life of thousandsof individuals passes away, within the limitsimposed by the law to human action; and ifwe were to tell them: The law is a warfare,they would not understand us, for they knowit only as a condition of peace and of order.And from the point of view of their ownexperience they are entirely right, just as isthe rich heir into whose lap the fruit of thelabor of others has fallen, without any toilto him, when he questions the principle:property is labor. The cause of the illusionof both is that the two sides of the ideasof property and of law may be subjectivelyseparated from each other in such a mannerthat enjoyment and peace become the partof one, and labor and strife of the other. Ifwe were to address ourselves to the latter, hewould give us an entirely opposite answer.And, indeed, property, like the law, is aJanus-head with a double face. To some itturns only one side, to others only the other;


tEije Struggle for lab)

and hence the difference of the picture of itobtained by the two. This, in relation tothe law, applies to whole generations as wellas to single individuals. The life of onegeneration is war, of another peace; andnations, in consequence of this difference ofsubjective division, are subject to the sameillusion precisely as individuals. A long pe-riod of peace, and, as a consequence thereof,faith in eternal peace, is richly enjoyed, untilthe first gun dispels the pleasant dream, andanother generation takes the place of the onewhich had enjoyed peace without having hadto toil for it, another generation which is forcedto earn it again by the hard work of war.Thus in property and law do we find labor andenjoyment distributed. But the fact that theybelong together does not suffer any prejudicein consequence. One person has been obligedto battle and to labor for another who enjoysand lives in peace. I Peace without strife, andenjoyment without work, belong to the daysof Paradise.' History knows both only as theresult 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 necessityas well as its moral value, that struggle is tobe placed on an equal footing with labor inthe case of property, is the idea which Ipropose to develop further below. I thinkthat in so doing I shall be performing no workof supererogation, but, on the contrary, that

I shall be making amends for a sin of omissionwhich may rightly be laid at the door of ourtheory of law; and not simply at the door ofour philosophy of law, but of our positivejurisprudence also. ~ Our theory of law, itis only too easy to perceive, is busied muchmore with the scales than with the sword ofJustice/T The one-sidedness of the pu'relyscientific standpoint from which it considersthe law, looking at it not so much as it reallyis, as an idea of force, but as it, is logically, asystem of abstract legal principles, has, in myopinion, impressed on its whole way of viewingthe law, a character not in harmony with thebitter reality. This I intend to prove.


Wife Struggle for 3lato

The term Recht is, it is well known, usedin our language in a twofold sense, in anobjective sense and in a subjective sense.Thus Recht, in the objective sense of the word,embraces all the principles of law enforced bythe state; it is the legal ordering of life. ButRecht, in the subjective sense of the word, is,so to speak, the precipitate of the abstractrule into the concrete legal right of the person.In both directions the law meets with opposi-tion. In both directions it has to overcomethat opposition; that is, it has to fight out orassert its existence through a struggle. Asthe real object of my consideration, I haveselected the struggle in the second direction,but I must not omit to demonstrate that myassertion that to struggle is of the veryessence of the law, in the former directionalso, is correct.

In regard to the realization of the law, onthe part of the state, this is not contested,and it, therefore, does not call for any furtherexposition. The maintenance of law andorder by the state is nothing but a continual

6


Origin of tijc Hato

struggle against the lawlessness which violatesthem.j But it is otherwise in regard to theorigin of law, not only as to the origin ofthe most primitive of all law, at the beginningof history, but also the rejuvenescence of lawwhich 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 toprogress in the domain of the law. For here,to /the view which I maintain, that the prin-ciples of jurisprudence are subject to thesame law in their origin as in the rest of theirhistory, there is, nevertheless, another theory-

opposed, one which is still, at least in ourscience of Roman law, universally admitted,and which I may briefly characterize afterits two chief representatives as the avigny-Puchta theory of the origin of the law. ^ Ac-cording to this theory, the formation of thebody of principles of jurisprudence is effectedby a process as unnoticed and as painless asis the formation or growth of language. Thebuilding up of the body of principles of


W&t Struggle for Hato

jurisprudence calls for no strife, no struggle.It is not even necessary, according to thistheory, to go in search of them, for the prin-ciples of jurisprudence are nothing but thequiet working power of truth which, withoutany violent effort, slowly but surely makes itsway; the power of conviction to which mindsgradually open and to which they give expres-sion by their acts: a new principle of juris-prudence comes into being with as littletrouble as any rule of grammar.,? The prin-ciple of the old Roman law, that the creditormight sell his insolvent debtor as a slavein foreign parts, or that the owner of a thingmight claim it from any one in whose posses-sion he found it, would have been formed inancient Rome, according to this view, scarcelyin any other manner than that in which thegrammatical rule that cum governs the ab-lative was formed.^This is the idea of the origin of the lawwhich I myself had when I left the university,and under the influence of which I lived fora good many years. Has this idea any claim

8



to truth ?^ It must be admitted that the law,like language, has an unintended, unconsciousdevelopment, or, to call it by the traditionalexpression, an organic development fromwithin outward. To this development, weowe all those principles of law which aregradually accumulated from the autonomousbalancing of the accounts of the legal rightsof men in their dealings with one another,as well as all those abstractions, consequences

and rules deduced by science from existinglaws, and presented by it to the consciousness.But the power of these two factors, the inter-course of man with man, and science, is alimited one. It can regulate the motion ofthe stream, within existing limits, and evenhasten it; but it is not great enough to throwdown the dikes which keep the current fromtaking a new direction. Legislation alonecan do this; that is, the action of the statepower intentionally directed to that end; andhence it is not mere chance, but a necessity,deeply rooted in the nature of the law, thatall thorough reforms of the mode of procedure


W$t Struggle for lab)

and of positive law may be traced back tolegislation. True it is, that the influence of

a change made by the legislative power inthe existing law may possibly be limitedentirely to the sphere of the abstract, withoutextending its effects down into the region ofthe concrete relations which have been formedon the basis of the law hitherto to a newchange in the machinery of law, a replacingof a worn out screw or roller by a more perfectone. But it very frequently happens thatthings are in such a condition that the changecan be effected only at the expense of an ex-ceedingly severe encroachment on existingrights and private interests. In the course oftime, the interests of thousands of individuals,and of whole classes, have become bound upwith the existing principles of law in such amanner that these cannot be done away with,without doing the greatest injury to theformer. To question the principle of lawor the institution, means a declaration ofwar against all these interests, the tearingaway of a polyp which resists the effort

10


viQin of tfje Hato

with a thousand arms. Hence every suchattempt, in natural obedience to the law ofself-preservation, calls forth the most violentopposition of the imperiled interests, andwith it a struggle in which, as in every struggle,the issue is decided not by the weight ofreason, but by the relative strength of oppos-ing forces; the result being not infrequentlythe same as in the parallelogram of forces

a deviation from the original line towardsthe diagonal. Only thus does it becomeintelligible, that institutions on which publicopinion has long since passed sentence ofdeath continue to enjoy life for a great lengthof time. It is not the vis inertia which pre-serves their life, but the power of resistanceof the interests centering about their exist-ence.

But in all such cases, wherever the existinglaw is backed by interests, the new has toundergo a struggle to force its way into theworld a struggle which not infrequentlylasts over a whole century. This strugglereaches its highest degree of intensity when

ii


Cfje &trussfc fo* ^ato

the interests in question have assumed theform of vested rights. Here we find twoparties opposed each to the other, each ofwhich takes as its device the sacredness ofthe law; the one that of the historical law,the law of the past; the other that of the lawwhich is ever coming into existence, everrenewing its youth, the eternal, primordiallaw of mankind. A case of conflict of theidea of law with itself which, for the individ-uals who have staked all their strength andtheir very being for their convictions andfinally succumb to the supreme decree ofhistory, has in it something that is reallytragic. All the great achievements whichthe history of the law has to record theabolition of slavery, of serfdom, the freedomof landed property, of industry, of con-science, etc. all have had to be won, inthe first instance, in this manner, by the mostviolent struggles, which often lasted forcenturies. Not infrequently streams of blood,and everywhere rights trampled under foot,mark the way which the law has traveled

12



during such conflict * For the law is Saturndevouring his own children. The law canrenew its youth only by breaking with itsown past. A concrete legal right or principleof law, which, simply because it has comeinto existence, claims an unlimited and there-fore eternal existence, is a child lifting its

arm against its own mother; it despises theidea 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 tothe new Becoming,, since

Alles was entsteht,1st werth dass es zu Grunde geht.

And thus the historical development oflaw presents us with a picture of research,struggle, fight, in short of toilsome, wearyingendeavor. The human mind working uncon-sciously towards the formation of languageis met by no forcible resistance, and art hasno opponent to overcome but its own past

the prevailing taste. It is not so with lawconsidered as an end. Cast into the chaotic

whirl of human aims, endeavors, interests,13


Witt Struggle for Hato

it has forever to feel and seek in order to findthe right way, and when it has found it, tooverthrow the obstacles which would impedeits course. If it be an undoubted fact, thatthis development, like that of art or language,is governed by law and is uniform, it cannotbe denied that it departs largely from thelatter in the manner in which it takes place;and in this sense, therefore, we are compelleddecidedly to reject the parallel instituted bySavigny a parallel which found universalfavor so rapidly between law on the onehand and language and art on the other.This doctrine is false, but not dangerous asa philosophical opinion. As a political max-im, however, it contains an error pregnantwith the most -ominous consequences imagi-nable, because it feeds man with hope wherehe should act, and act with a full and clearconsciousness of the object aimed at, andwith all his strength. It feeds him with thehope that things will take care of themselves,and that the best he can do is to fold hisarms and confidently wait for what may

14


(Origin of tfjc Hato

gradually spring to light from that primitivesource of all law called: the natural convictionof legal right. Hence the aversion of Savignyand of all his disciples to the interference oflegislation^ and hence the complete ignoringof the real meaning of custom, in the Puchtatheory of the law of custom. Custom toPuchta is nothing but a mere mode of dis-covering the conviction as to what is legallyright: but that this very conviction is firstformed through the agency of its own action,that through this action it first demonstratesits power and its calling to govern life; inshort that the principle: the law is an ideawhich involves force to this the eyes ofthis great mind were entirely closed. But,in this, Puchta was only paying tribute tothe time in which he lived. For his timewas the romantic in our poetry, and theperson who does not recoil from transferringthe idea of the romantic to jurisprudence,and who will take the trouble to compare thecorresponding directions followed in the twospheres with one another, will perhaps not

is


Wi)t Struggle for Xato

find fault with me when I allege that theHistorical School in law might just as wellhave been called the romantic. That lawand the principles of legal right come intoexistence or are formed painlessly, withouttrouble, without action, like the vegetablecreation, is a really romantic notion, that is,a notion based on a false idealization of pastconditions. Stern reality teaches us the con-traryv*and not alone that small part of thatreality which we have before our eyes our-selves, and which presents us, almost every-where, with the most strenuous endeavors ofnations in respect to the formation of theirlegal relations questions of the gravestnature which crowd one upon another; butthe impression remains the same, no matterwhat part of the past we contemplate.

,

Savigny's theory can, therefore, appeal tonothing but prehistoric times of which wehave no information.' But if we may bepermitted to indulge in hypothesis in relationto them, I am willing to oppose to Savigny's,which represents them as the time of the

16



peaceable, gentle evolution of the principlesof law from the inner consciousness of popularconviction, my own hypothesis, which isdiametrically opposed to his ; and it will haveto be granted to me that, to say the least, ithas in its favor, the analogy of what we cansee of the historical development of law, andas I believe, the advantage, likewise, ofgreater psychological probability. Primitivetimes ! It was once the fashion to deck themout in every beautiful quality: truth, frank-

ness, fidelity, simplicity, religious faith; andin such soil, principles of law would certainlyhave been able to thrive without any otherforce to assist their growth than the powerof the conviction of right: they would nothave needed the sword, nor even the unassist-ed arm. But to-day we all know that thepious and hoary past was noted for qualitiesthe very opposite of these, and the suppositionthat they were able to get their principles oflaw in an easier manner than all later genera-tions can scarcely expect to be credited nowJFor my part, I am convinced that the labor

17


EJje Struggle for Halo

which they must have expended on theirtask, was one still more difficult, and thateven the simplest principles of law, such forinstance as those named above, from themost ancient Roman law, of the authority ofthe owner to claim back his chattel from anyone in whose possession it was found, and ofthe creditor to sell his insolvent debtor intoforeign servitude, had to be first fought outby the hardest battles, before they obtainedunquestioned recognition. But be this asit may, we may leave the most primitive timesout of consideration. The information afford-ed us by the remotest history on the origin oflaw is sufficient. But this information is tothe effect: the birth of law like that of menhas been uniformly attended by the violentthroes of childbirth.

And why should we complain that it isthus attended? The very fact that theirlaw does not fall to the lot of nations withouttrouble, that they have had to struggle, tobattle and to bleed for it, creates betweennations and their laws the same intimate

18


viqin of tijc lata

bond as is created between the mother andher child when, at its birth, she stakes herown life. ^A principle of law won withouttoil is on a level with the children broughtby the stork: what the stork has brought, thefox or the vulture can take away again. Butfrom the mother who gave it birth, neitherthe fox nor the vulture can take the childaway; and just as little can a people be de-prived of the laws or institutions which theyhave had to labor and to bleed for, in orderto obtain." We may even claim that theenergy and love with which a people hold toand assert their laws, are determined by theamount of toil and effort which it cost themto obtain, them. |^ot mere custom, butsacrifice, forges the strongest bond between apeople and their principles of legal rights andGod does not make a gift of what it needs tothe nation He wishes well, nor does He makethe labor necessary to its acquisition easy, butdifficult. In this sense, I do not hesitate to say

:

The struggle needed by laws to fight their wayinto existence is not a curse, but a blessing.

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CHAPTER IITHE LIFE OF THE LAW A STRUGGLE

P$^T[$$j? NOW turn to the real subject of myessay the struggle for concretelaw. This struggle is provoked bythe violation or the withholding of

legal rights. Since no legal right, be it theright of an individual or of a nation, is guardedagainst this danger, it follows that this strugglemay be repeated in every sphere of the lawin the valleys of private law, as well as on theheights of public and international law.War, sedition, revolution, so-called lynch-law, the club-law, and feudal law of the middleages, and the last remnant of it in our owntimes, the duel; lastly, self-defense, and theaction at law what are they all, spite of thedifference of the object striven for and of thething which is staked, of the form and dimen-sions of the struggle what but forms and

21


GPfje Struggle for &ato

scenes of the one same drama, the strugglefor rights, the struggle for the principles oflaw?. If now, of all these forms, I choose theleast violent, the legal struggle for individualrights in the form of an action at law, it isnot because it has for jurists a higher inter-est than any other, but because, in a trial atlaw, the real nature of the case is most sub-ject to the danger of being ignored both byjurists and the laity. In all other instancesthis real nature of the case appears in all itsclearness. That in all other instances thereis question of wealth or goods which warrantand repay great risk, even the dullest mindunderstands, and no one will, in such instances,raise the question: Why fight; why not ratheryield ? The magnificence of the sight of thehighest display of human strength and sacri-fice irresistibly carries all of us along with itand lifts us to the height of ideal judgment.But, in the struggle for individual privaterights, just mentioned, the case is very differ-ent. The relative smallness of the interestswith which it is concerned uniformly the

22


Wl}t Hilt of tfjc Hato a Struggle

question of mine and thine, the dull prosinesswhich uniformly attaches to this questionmakes of this struggle, it would seem, simply amatter of cold calculation and sober contem-plation; and the forms in which it moves (themechanical routine of litigation, with the ex-clusion of all free, individual action and of theclaimant himself) are ill calculated to weakenthe unfavorable impression.j However, evenin the case of the action at law, there was atime when the parties to the action themselveswere called on to enter the lists, and when thetrue meaning of the struggle was thus madeto appear. While the sword still decided thecontroversy concerning mine and thine, whenthe medieval knight sent the challenge to hisopponent, even the non-participant may havebeen forced to surmise that, in the struggle,there was question not only of the value ofthe thing, of averting a pecuniary loss, butthat 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


Witt Struggle for Hato

discover from it the meaning of that which,even if different in form, is in essence thesame to-day. A glance at the phenomena ofour 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 hisopponent that is, engage in a struggle; orwhether, in order to avoid this, he will leaveright in the lurch. The decision of thisquestion rests entirely with himself. What-ever his answer to the question may be, somesacrifice accompanies it in both cases. In theone case, the law is sacrificed to peace; inthe other, peace is sacrificed to the law.Hence, the question seems to formulate itselfthus: Which sacrifice, according to the indi-vidual circumstances of the case and of theperson, is the more bearable fl The rich manwill, for the sake of peace, sacrifice the amountin controversy, which to him is insignificant;and the poor man, to whom this same amountis comparatively great, will sacrifice his peace

24


tEfje TLiit of tfje Hato a Struggle

for its sake. Thus would the question ofthe struggle for the principles of law reduceitself to a simple problem in arithmetic, inwhich advantage and disadvantage areweighed 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 experienceshows us cases at law in which the value ofthe object in controversy is out of all propor-tion to the prospective expenditure of trouble,excitement, and money. No one who hasdropped a dollar into a stream will give twoto get it back again. For him, indeed, thequestion, how much he will expend upon itsrecovery, is a simple problem in arithmetic.But why does he not go through .the sameprocess of calculation when he contemplatesa suit at law? Do not say that he calculateson winning it, and that the costs of the suitwill fall upon his opponent. Every lawyerknows that the sure prospect of having to paydearly for victory does not keep many per-sons from suing. How frequently it happens

25


Clje Struggle for Uato

that the counselor who exposes to a clientthe badness of his case and dissuades himfrom suing receives for answer: Bring suit,cost what it may!How explain this mode of action which,

from the standpoint of a rational estimation ofmaterial 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 ofwrangling, the irresistible desire to inflictpain on one's opponent, even when it iscertain that one will have to pay for it moreheavily than one's opponent.

Let us drop the consideration of the contro-versy between two private persons, and intheir place put two nations. The one nation,let us suppose, has, contrary to law, takenfrom the other a square mile of barren, worth-less land.' Shall the latter go to war? Letus examine the question from precisely thesame standpoint from which the theory ofthe mania for litigation judges it, in the caseof the peasant from whose land a neighbor has

26


tK&e JLitt of tije Eato a struggle

ploughed away a few feet, or into whosemeadow he has thrown a few stones. Whatsignifies a square mile of barren land com-pared with a war which costs the lives ofthousands, brings sorrow and misery intothe palace and the hut, eats up millions andmillions of the treasure of the state, andpossibly imperils its existence? What follyto make such a sacrifice for such an end

!

Such would have to be our judgment, ifthe peasant and the nation were measuredwith the same measure. Yet no one wouldwish to give to the nation the same advice asto the peasant. Every one feels that a nationwhich looked upon such a violation of law insilence would have signed its own deathsentence. From the nation which alloweditself to be deprived of one square mile ofterritory by its neighbor, unpunished, therest also would be taken, until nothing re-mained to it to call its own, and it had ceasedto exist as a state; and such a nation woulddeserve no better fate/But if a nation should have recourse to

27


Wf)t Struggle for Hatu

arms, for the sake of a square mile of terri-tory, without inquiring what its value, whynot also the peasant for the sake of his stripof land? Or must we dismiss him with thedecree: quod licet Jovi, non licet bovi. Thenation does not fight for the square mile ofterritory, but for itself, for its honor andindependence; and so in those suits at lawin which the disproportion mentioned aboveexists between the value of the object in con-troversy and the prospective cost and othersacrifices, there is question not of the insig-nificant object in controversy, but of an idealend: the person's assertion of himself and ofhis feeling of right. In respect to this end,the person whose rights have been invadedno longer weighs all the sacrifices and incon-veniences which the suit at law draws afterit the end in his eyes is compensation forthe means. It is not a mere money-interestwhich urges the person whose rights have been

'

infringed to institute legal proceedings, butmoral pain at the wrong which has beenendured. He is not concerned simply with

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W)t TLiit of tljc Hato a Struggle

recovering the object he may, perhaps,as frequently happens, to prove the realmotive in suing, have devoted it from thefirst to a charitable institution but withforcing a recognition of his rights. An innervoice tells him that he should not retreat,that it is not the worthless object that is atstake but his own personality, his feeling oflegal right, his self-respect in short, the

suit at law ceases to appear to him in theguise 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 tothe very opposite decision they like peace

better than a legal right asserted at the costof trouble and anxiety. What kind of ajudgment must we pass on this? Shall wesay simply : That is a matter of individual tasteand temperament; one loves contention more,and the other peace; from the standpoint oflaw both conclusions are to be equally re-spected; for the law leaves to every one whohas a legal right, the choice of asserting his

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Wi)t Struggle for Hato

right or of surrendering it. Z I hold this view,which is to be met with not unfrequently inlife, to be reprehensible in the highest degree,and in conflict with the very essence of law/;If it were possible that this view shouldbecome general, all would be over with thelaw itself; since Whereas the law, to' exist,demands that there should be always a manlyresistance made to wrong, those who advo-cate this view preach that the law shouldflee like a coward before wrong. To thisview I oppose the principle: Resistance toinjustice, the resistance to wrong in thedomain of law, is a duty of all who have legalrights, to themselves for it is a command-ment of moral self-preservation a duty tothe commonwealth; for this resistance must,in order that the law may assert itself, beuniversal. I have thus laid down the prin-ciple which it is the purpose of the sequel toelaborate.

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CHAPTER III

THE STRUGGLE FOR HIS RIGHTS A DUTY OFTHE PERSON WHOSE RIGHTS HAVE BEEN

VIOLATED, TO HIMSELF

JHE struggle for his right is a dutyof the person whose rights havebeen violated, to himself.The preservation of existence is

the highest law of the whole living creation.It manifests itself in every creature in theinstinct of self-preservation. Now man isnot concerned only with his physical life butwith his moral existence. But the conditionof this moral existence is right, in the law..In the law, man possesses and defends themoral condition of his existence withoutlaw he sinks to the level of the beast, 1 just asthe Romans very logically, from the stand-

1 In the novel, Michel Kohlhaas, by Heinrich von Kleist, to whichI shall return again, the writer makes his hero sayr*' Better be a dog,if I am to be trodden under foot, than a man."_

"

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fje struggle for Hato

point of abstract law, placed slaves on a levelwith beasts. *The assertion of one's legalrights is, therefore, a duty of moral self-preservation the total surrender of thoserights, now impossible, but once possible, ismoral suicide/ But the law is only the ag-gregate of its separate parts, each of whichembodies a peculiar moral condition of exist-ence: property as well as marriage, contractsas well as reputation. A renunciation ofone of them is, therefore, legally just as im-possible as the renunciation of the entire law.But it certainly is possible that a personshould attack one of these conditions; and itis the duty of the person attacked to repelthe attack : for it is not sufficient to place theseconditions of existence under the protectionof law, represented by mere abstract prin-ciples; they must be asserted in the concreteby the individual; and the incentive to thisassertion of them is furnished when onearbitrarily dares to attack them.But not all legal wrong is arbitrariness,

that is a revolt against the idea of law. The32


Struggle for Batgfjts a personal But?

possessor of my chattel who thinks he ownsit does not assail my person in denying theidea of property; rather does he appeal toit in his own interest. The question be-tween us turns on this which of us is theowner? ^But the thief and the robber placethemselves outside the legal domain of prop-erty. In my property they deny both theidea of property, and, at the same time, anessential condition of the existence of myperson. If we suppose their mode of actionto become general, to become a maxim of thelaw, property is denied both in theory and inpractice.^ Hence their act embodies an at-tack, not only on my chattel, but at the sametime on my person; and if it be my duty todefend my person, it is my duty here also;and nothing but the conflict of this duty withthe higher duty of the preservation of mylife, as happens when the robber puts beforeme 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

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Wbt 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 singlemoment in my life. But to do this, no oneshould lend a hand.TTowards the bond fide possessor of my

chattel, I stand in a very different situation.Here the question is what I have to do. It isnot a question of my feeling of legal right, ofmy character, of my personality, but a purequestion of interest; for I have nothing hereat stake but the value of my chattel, andhere, therefore, I am entirely warranted inweighing the gain and stake, and the possibil-ity of a doubtful issue, one against the other,and to come to a decision accordingly: tosue, abstain from suing, or arbitrate. 1 Arbi-tration or settlement is the point of meetingof such a calculation of probabilities, made

1 The above passage should have guarded me from the suppositionthat I preached the battle for one's legal rights without inquiringfurther 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 Ideclared the vindication o

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