Rudolf von Jhering

“ And thus the historical development of law presents us with a picture of research, struggle, fight, in short of toilsome, wearying endeavor. The human mind working unconsciously towards the formation of language is met by no forcible resistance, and art has no opponent to overcome but its own past—the prevailing taste. It is not so with law considered as an end. Cast into the chaotic whirl of human aims, endeavors, interests, it has forever to feel and seek in order to find the right way, and when it has found it, to overthrow the obstacles which would impede its course. ”

“ What an immense importance 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, 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 philosophy of law; it is never thought of in practical life; no one institutes an action for the sake of the idea of law. ”

“ 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, 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. ”

“ His property 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 peasant 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 of his entire existence ”

“ 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 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, trampled under foot, and which must be defended, if the law itself is not to become a mockery and a word without meaning. ”

“ It is, we are told, the miserable 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 controversy 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, worthless land. ”

“ It is a matter of indifference what the object 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. ”

“ How can the man who thinks 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 interest, 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 suddenly 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 ”

“ 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. ”

“ 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 helping itself, to obtain what ignorance, bad will, or impotence refuses it. ”

“ There is scarcely any subject which has had so much attraction 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 aesthetic taste is more displeased than pleased 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. ”

“ 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 remained to it to call its own, and it had ceased to exist as a state ”

“ 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 blessings 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 true idea of property is lost. ”

“ 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. ”

“ His fate is eminently tragic, not because his rights are denied him, but because 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. ”

“ The pain which a person experiences when his legal rights are violated is the spontaneous, instinctive admission, wrung from him by force, of what the law is to him 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. ”

“ 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 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. ”

“ 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 law that public order which is indispensable, who can deny that, in defending them, he fulfills a duty to the commonwealth? ”

“ The building up of the body of principles of jurisprudence calls for no strife, no struggle. It is not even necessary, according to this theory, to go in search of them, for the principles of jurisprudence are nothing but the quiet working power of truth which, without any violent effort, slowly but surely makes its way; the power of conviction to which minds gradually open and to which they give expression by their acts: a new principle of jurisprudence comes into being with as little trouble as any rule of grammar. ”

“ To force men to engage in the matrimonial relation, it brings into play, in the case of some men, the noblest of all human instincts, in the case of others, sensual pleasure, 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. ”

“ One person has been obliged to battle and to labor for another who enjoys and lives in peace. Peace without strife, and enjoyment without work, belong to the days of Paradise. History knows both only as the result of painful, uninterrupted effort.
That, to struggle, is, in the domain of law, what to labor, is, in that of economy, and, that, in what concerns its practical necessity as well as its moral value, that struggle is to be placed on an equal footing with labor in the case of property, is the idea which I propose to develop further below. ”

“ 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 responsibility for this state of things falls not upon those who transgress the law, but on those who have not the courage to assert it. ”

“ 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. ”

“ The life of one generation is war, of another peace; and nations, in consequence of this difference of subjective division, are subject to the same illusion precisely as individuals. A long period of peace, and, as a consequence thereof, faith in eternal peace, is richly enjoyed, until the first gun dispels the pleasant dream, and another generation takes the place of the one which had enjoyed peace without having had to toil for it, another generation which is forced to earn it again by the hard work of war. Thus in property and law do we find labor and enjoyment distributed. ”

“ And when he finally succumbs under the weight of the judge’s decision, who wipes out his rights by a shocking piece of pleasantry, [2] when we see him pursued 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? ”