Rudolf von Jhering

“ 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. ”

“ 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. ”

“ 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 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? ”

“ 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. ”

“ 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? ”

“ I readily grant that this ideal sentiment of legal right, possessed by the person by whom the wounding of the feeling of legal right is felt more sensitively than an attack upon him personally, and who disinterestedly sacrifices himself in the interest of oppressed right as if there were question only of his own rights, is the privilege of highly gifted natures. ”

“ In defending his legal rights he asserts and defends the whole body of law, within the narrow space which his own legal rights occupy. Hence his interest, and this, his mode of action, extend far beyond his own person. The general good which results therefrom is not only the ideal interest, that the authority and majesty of the law are protected, but this other very real and eminently practical good which every one feels and understands, even the person who has no conception whatever of the former—that the established order of social relations is defended and assured. ”

“ When the law has prohibited them, without, however, being able to abolish them, they may become, for the individual, the source of a very serious conflict. The Corsican who obeys the law rather than have recourse to revenge for bloodshed is despised by his own kinsfolk; if he follows what the national feeling seems to demand of him, he perishes by the avenging arm of justice. And thus it is with the duel. The person who declines it when his honor dictates that he should accept it, is disgraced; if he accepts it, he is punished—a situation as painful to the individual as to the judge. ”

“ 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. ”

“ When the master can no longer insist that the servant shall do his duty, when the creditor cannot enforce payment by his debtor, when the public attach no great importance to the correctness of weights and measures, can it be said that nothing is imperiled but the authority of the law? ”

“ If, like Michel Kohlhaas, his nature be noble and moral, it may guard him against going so far astray, but he will become a criminal, and by suffering the penalty of his crime, a martyr to his feeling of legal right. ”

“ Here belong the secret courts of criminal justice in the middle ages and the feudal law, which bear weighty evidence to the impotence or the partiality of the criminal courts of the time and to the weakness of the state power; in the present, dueling, which is a palpable proof that the penalties which the state inflicts on attacks on one’s honor are not sufficient to satisfy the delicate feeling of honor of certain classes of society. ”

“ However, before his life is taken from him, justice is done him, and the thought that he has not fought in vain, that he has restored respect for the law and preserved his dignity as a human being, makes him smile at the horrors of death ”

“ For no wrong which man has to endure, no matter how grievous, can at all compare, at least in the eyes of ingenuous moral feeling, with that which the authority established by God commits when it itself violates the law. Judicial murder is the deadly sin of the law. ”

“ It is the phenomenon of the storm in the moral world: sublime, majestic in the rapidity, suddenness, and power with which it breaks forth, in the strength of that moral force, which like a tempest or the elements in a fury, sweeps everything before it, then grows calm and beneficent, and produces a purification of the moral atmosphere enjoyed both by the individual and by all. ”

“ But while the realization in practice of public law and of criminal law is assured, because it is imposed as a duty on public officials, the realization in practice of private law is presented to individuals under the form of their legal rights; that is, it is left exclusively to them to take the initiative in its realization, left exclusively to their action. ”

“ If the latter may summon him to fight a foreign enemy and to risk his life in battle with him; if it be every one’s duty to defend the common interests of the country, when attacked from without, why should not all courageous and well-minded men unite to resist the enemy at home? ”

“ For the grand and the sublime in the moral order of the world is that it can count on the services not only of those who comprehend it, but that it possesses efficacious means enough to make those who do not understand its commands labor for it without their knowledge or their will. ”

“ To this idea he sacrifices everything, his family’s happiness, the honor of his name, all his earthly possessions, his blood, and his life; and he carries on no aimless war of extermination, for he directs it only against the guilty one, and against all those who make common cause with him. ”

“ No other feeling, so far as I know, is able so suddenly, so radically, to make a change in man; for it is a demonstrated fact that it has the power to rouse the gentlest and most conciliating natures to a pitch of passion which is otherwise entirely foreign to them ”