Rudolf von Jhering

“ 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. ”

“ Our lawyers to-day are so far from believing that the balance of Justice should, in private law as well as in criminal law, weigh the injustice which has been done, and not only the pecuniary interest, that, in daring to speak about it, I must expect to hear it objected that in this precisely lies the difference between criminal law and the law pertaining to the rights of persons. ”

“ Only that with us subjective injustice is reduced to the level of objective injustice. Between the debtor who shamelessly denies the loan made him and the heir who does the same thing in good faith; between the agent who has deceived me and the one who has simply made a mistake, our present law knows no difference. Everywhere the trial turns only on the bare money interest. ”

“ But despotism is like the simoon’s breath, which allows no plant to grow; and private law alone not being able to maintain a spirit which was despised everywhere, was obliged to succumb, although latest of all, to the spirit of the new era. ”

“ In keeping with this insensibility of our present law for the ideal interest affected by a violation of legal right is the doing away with, in modern practice, of the penalties inflicted by private Roman law. The faithless bailee no longer incurs infamy among us. The greatest piece of rascality, if its perpetrator is only skillful enough to evade the criminal law, escapes in our day, entirely free and unpunished. ”

“ No mathematician can set up a more exact method of proof than the one which our jurisprudence employs. It reaches the acme of irrationality in the actions for damages. The mischief, to employ the language of a Roman jurist, [2] “caused here to the law under the appearance of law,” and the beneficent contrast which the intelligent mode of action of the French tribunals offers, have been described in so many recent works that I need not add anything on it; one thing alone I cannot refrain from saying: Woe to the plaintiff, well for the defendant! ”

“ I here refer to the shameful paralyzing of the right of self-defense, that original right of man, which, as Cicero says, is a law enacted by nature itself, and which the Roman jurists were ingenuous enough to believe could not be ignored in any body of laws in the world. ”

“ But, even leaving this desire for satisfaction out of consideration, a desire which I do not hesitate to acknowledge to be entirely justifiable, what a disturbance of the natural equilibrium between the parties! The danger with which a bad issue of the suit threatens them consists for the one in the loss of his property, and for the other in the restitution of what he unjustly retained. In the opposite case, the one has the advantage that he loses nothing, and the other that he has added to his wealth at the expense of his adversary. ”

“ It is far behind the rightful claims of a healthy feeling of legal right, and not because it has not, in many cases, found the true solution, but because its way of looking at things is diametrically opposed to the idealism described above as constituting the essence of the healthy feeling of legal right—I mean that idealism which sees in a violation of law an attack not only on the object, but on the person himself. ”

“ In all these cases, people are in Germany entirely helpless, for the assistance which the law offers to one whose legal rights have been invaded supposes proof which he never is able to adduce; an assistance which, even where by way of exception it is possible to adduce this proof, is not sufficient effectually to oppose injustice from the other side. ”

“ It will be sufficient, it seems to me, to call attention to one especially significant trait of that character, one which is rich in historical material—the moderation and consideration shown to the debtor at the expense of the creditor. It may, I think, be laid down as a general maxim that sympathy with the debtor is the sign of a weak epoch. This sympathy styles itself humanity. A vigorous age is concerned first of all with insuring the creditor his rights, even if the debtor goes to the wall in consequence. ”

“ It would be first necessary to prove to me that there is one part of the law in which the idea of justice should not be realized to its full extent. But the idea of justice is inseparable from the carrying out of the idea of culpability. ”

“ He might very easily shift the blame on the science of the law. The money condemnation which, in the hands of the Roman magistrate, was one of the most powerful means of doing justice to the ideal feeling of legal right which had been wounded, has become, under the influence of our theory of evidence, one of the sorriest expedients which judicial authority has ever made use of to prevent injustice. The plaintiff is required to prove to a farthing the money-value which he has at stake in the suit. ”

“ We might almost imagine ourselves in the company of a set of chaste, emasculated men. The man whose life or honor is threatened, we are told, should retire or take flight—that is, yield the field to injustice—and these sages disagreed only on one question: whether officers, nobles and other persons of position should flee also. ”

“ It is not, however, aesthetics, but ethics, which has to tell us what is in harmony with, and what contradicts, the idea of law. But ethics, far from rejecting the struggle for law, enjoins it as a duty. ”

“ The defendant who refused to do what the judge imposed on him to do, did not get off with the mere money value of the obligation he owed, but the money condemnation here performed the functions of a penalty, and this consequence of the suit assured the plaintiff a satisfaction to which, under some circumstances, he attached much more importance than to the money; viz., the moral satisfaction for the frivolous violation of his legal rights. Our present law never affords this satisfaction; it knows nothing of it ”

“ Their honor is their credit; they have honor only so long as they have money; they may, therefore, without any danger of losing their honor or reputation, bear being called opprobrious names, and when they belong to the lower class, put up with a slap, if not very painful, or a rap over the nose.” If the unfortunate man was a Jew or peasant, he was, for violating this prescription, to bear the penalty of prohibited self-defense, whereas other persons were to be punished as “gently as possible.” ”

“ I mean that sublime struggle in which the man stakes his own person and all he has for his own rights or the rights of his country. The person who blames the love of struggle in this sense may wipe out all our literature and all our art from the Iliad of Homer and the sculpture of the Greeks to our own day. ”

“ A private teacher who has made an engagement with a private institute, subsequently finds a more agreeable situation, and breaks his contract; another cannot be had immediately to take his place. Let anyone calculate the money value lost by the want of instruction of the pupils in French or drawing, for weeks or months, or the damage in money sustained by the principal of the institute. Suppose that a female cook leaves her place without cause, and that, in consequence, her master is subjected to the greatest embarrassment, because he finds it impossible to fill it. ”

“ What can the simple and honest ordinary man think when the judge, before whom he appears with a document showing that his opponent acknowledges an indebtedness to him of a hundred dollars, holds the signer not to be bound because the document is a cautio indiscreta, or when a document which expressly mentions a loan as the basis of an indebtedness is held to have no force as evidence except after the expiration of two years? ”

“ I do not mean simply that it enjoys the labor of others without any trouble to itself. I would, above all, call attention to the fact that it is in the nature of the works, creations and institutions of the past to preserve, for a certain length of time, and to revivify, the spirit which gave them birth. ”

“ This reminds me of the man who, when robbed, consoled himself with the reflection that the robber had not the directions for the use of the stolen object. Others admit that, when the loss of a very large sum is involved, it is allowable to employ force, only as a last resort, but they make it the duty of the person attacked, no matter under how great excitement he may be laboring, carefully to consider how much force is required to repel the attack. ”

“ They hold in themselves a store of latent force which is changed into active force by personal contact with them. In this sense the private law of the republic in which was reflected the energetic and vigorous feeling which the old Roman people had for legal right, served the empire for a time as a living source. ”

“ But, just as many heirs, unable to procure for themselves the necessaries of life, live on the wealth accumulated by the testator, an exhausted and degenerated people subsist, for a long time, on the intellectual capital of a previous vigorous age. ”

“ It may be described as the employment and application of the measure of guilt in all cases of the violation of private law. Objective and subjective injustice are strictly distinguished. The former entails simply the restitution of the object, the second a penalty in addition to this, sometimes a fine, sometimes disgrace; and this proportionate infliction of a penalty is one of the soundest thoughts of the intermediate Roman law. ”

“ If he needlessly cracks the skull of the aggressor, where any one who had previously had an opportunity to subject the strength of the skull to an exact examination would have been able to render him harmless by a less powerful stroke, he is held responsible! ”

“ People of very high position and of distinguished birth, likewise officers, should be permitted to make rightful resistance in defense of their honor; but, adds another, in limitation of this, in case of mere verbal injury, they should not go as far as killing. ”

“ On the other hand, in the case of less valuable objects, for instance, a gold watch or a purse with a few guldens, or even with a hundred guldens, he must not, for the life of him, do any harm to his aggressor. For what is a watch in comparison with life and limb? ”

“ A poor soldier who, to obey this order, had retreated twice, but who, being pursued by his adversary, finally resisted and killed his pursuer, was condemned to death as a salutary lesson to himself and as a deterrent example to others. ”

“ This is an indisputable truth, but that the watch belongs to the person attacked and the limbs to the robber, is forgotten. Doubtless they have for him an incalculable value, for the person attacked they have none at all ”

“ With this the person may console himself who carries everything he owns upon his person in the form of valuable papers. He still holds his property and the reivindicatio, and the robber has nothing but actual possession! ”