Rudolf von Jhering

“ 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. ”

“ A case of conflict of the idea of law with itself which, for the individuals who have staked all their strength and their very being for their convictions and finally succumb to the supreme decree of history, has in it something that is really tragic. All the great achievements which the history of the law has to record—the abolition of slavery, of serfdom, the freedom of landed property, of industry, of conscience, etc.—all have had to be won, in the first instance, in this manner, by the most violent struggles, which often lasted for centuries. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 question the principle of law or the institution, means a declaration of war against all these interests, the tearing away of a polyp which resists the effort with a thousand arms. Hence every such attempt, in natural obedience to the law of self-preservation, calls forth the most violent opposition of the imperiled interests, and with it a struggle in which, as in every struggle, the issue is decided not by the weight of reason, but by the relative strength of opposing forces ”

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

“ True it is, that the influence of a change made by the legislative power in the existing law may possibly be limited entirely to the sphere of the abstract, without extending its effects down into the region of the concrete relations which have been formed on the basis of the law hitherto—to a new change in the machinery of law, a replacing of a worn out screw or roller by a more perfect one. But it very frequently happens that things are in such a condition that the change can be effected only at the expense of an exceedingly severe encroachment on existing rights and private interests. ”

“ That law and the principles of legal right come into existence or are formed painlessly, without trouble, without action, like the vegetable creation, is a really romantic notion, that is, a notion based on a false idealization of past conditions. Stern reality teaches us the contrary, and not alone that small part of that reality which we have before our eyes ourselves, and which presents us, almost everywhere, with the most strenuous endeavors of nations in respect to the formation of their legal relations—questions of the gravest nature which crowd one upon another ”

“ It was once the fashion to deck them out in every beautiful quality: truth, frankness, fidelity, simplicity, religious faith; and in such soil, principles of law would certainly have been able to thrive without any other force to assist their growth than the power of the conviction of right: they would not have needed the sword, nor even the unassisted arm. ”

“ It is not the vis inertiæ which preserves their life, but the power of resistance of the interests centering about their existence.
But in all such cases, wherever the existing law is backed by interests, the new has to undergo a struggle to force its way into the world—a struggle which not infrequently lasts over a whole century. This struggle reaches its highest degree of intensity when the interests in question have assumed the form of vested rights. Here we find two parties opposed each to the other, each of which takes as its device the sacredness of the law ”

“ The maintenance of law and order by the state is nothing but a continual struggle against the lawlessness which violates them. But it is otherwise in regard to the origin of law, not only as to the origin of the most primitive of all law, at the beginning of history, but also the rejuvenescence of law which is taking place daily under our eyes, the doing away with existing institutions, the putting to one side of existing principles of law by new ones ”

“ Every individual placed in a position in which he is compelled to defend his legal rights, takes part in this work of the nation, and contributes his mite towards the realization of the idea of law on earth. ”

“ The cause of the illusion of both is that the two sides of the ideas of property and of law may be subjectively separated from each other in such a manner that enjoyment and peace become the part of one, and labor and strife of the other. If we were to address ourselves to the latter, he would give us an entirely opposite answer. And, indeed, property, like the law, is a Janus-head with a double face. To some it turns only one side, to others only the other ”

“ For the law is Saturn devouring his own children. The law can renew its youth only by breaking with its own past. A concrete legal right or principle of law, which, simply because it has come into existence, claims an unlimited and therefore eternal existence, is a child lifting its arm against its own mother; it despises the idea of the law when it appeals to that idea; for the idea of the law is an eternal Becoming ”

“ In the course of time, the interests of thousands of individuals, and of whole classes, have become bound up with the existing principles of law in such a manner that these cannot be done away with, without doing the greatest injury to the former. ”

“ As a political maxim, however, it contains an error pregnant with the most ominous consequences imaginable, because it feeds man with hope where he should act, and act with a full and clear consciousness of the object aimed at, and with all his strength. ”

“ But from the mother who gave it birth, neither the fox nor the vulture can take the child away; and just as little can a people be deprived of the laws or institutions which they have had to labor and to bleed for, in order to obtain. ”