The Struggle for Law/Chapter II

by Rudolf von Jhering

CHAPTER II

THE LIFE OF THE LAW A STRUGGLE

NOW turn to the real subject of my essay—the struggle for concrete law. This struggle is provoked by the violation or the withholding of legal rights. Since no legal right, be it the right of an individual or of a nation, is guarded against this danger, it follows that this struggle may be repeated in every sphere of the law—in the valleys of private law, as well as on the heights of public and international law. War, sedition, revolution, so-called lynch-law, the club-law, and feudal law of the middle ages, and the last remnant of it in our own times, the duel; lastly, self-defense, and the action at law—what are they all, spite of the difference of the object striven for and of the thing which is staked, of the form and dimensions of the struggle—what but forms and scenes of the one same drama, the struggle for rights, the struggle for the principles of law? If now, of all these forms, I choose the least violent, the legal struggle for individual rights in the form of an action at law, it is not because it has for jurists a higher interest than any other, but because, in a trial at law, the real nature of the case is most subject to the danger of being ignored both by jurists and the laity. In all other instances this real nature of the case appears in all its clearness. That in all other instances there is question of wealth or goods which warrant and repay great risk, even the dullest mind understands, and no one will, in such instances, raise the question: Why fight; why not rather yield? The magnificence of the sight of the highest display of human strength and sacrifice irresistibly carries all of us along with it and lifts us to the height of ideal judgment. But, in the struggle for individual private rights, just mentioned, the case is very different. The relative smallness of the interests with which it is concerned—uniformly the question of mine and thine, the dull prosiness which uniformly attaches to this question—makes of this struggle, it would seem, simply a matter of cold calculation and sober contemplation; and the forms in which it moves (the mechanical routine of litigation, with the exclusion of all free, individual action and of the claimant himself) are ill calculated to weaken the unfavorable impression. However, even in the case of the action at law, there was a time when the parties to the action themselves were called on to enter the lists, and when the true meaning of the struggle was thus made to appear. While the sword still decided the controversy concerning mine and thine, when the medieval knight sent the challenge to his opponent, even the non-participant may have been forced to surmise that, in the struggle, there was question not only of the value of the thing, of averting a pecuniary loss, but that the person, in the thing, defended himself, his rights and his honor.

But we shall not need to conjure up a condition of things long past and vanished to discover from it the meaning of that which, even if different in form, is in essence the same to-day. A glance at the phenomena of our actual life and psychological self-observation 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 his opponent—that is, engage in a struggle; or whether, in order to avoid this, he will leave right in the lurch. The decision of this question rests entirely with himself. Whatever his answer to the question may be, some sacrifice accompanies it in both cases. In the one case, the law is sacrificed to peace; in the other, peace is sacrificed to the law. Hence, the question seems to formulate itself thus: Which sacrifice, according to the individual circumstances of the case and of the person, is the more bearable? The rich man will, for the sake of peace, sacrifice the amount in controversy, which to him is insignificant; and the poor man, to whom this same amount is comparatively great, will sacrifice his peace for its sake. Thus would the question of the struggle for the principles of law reduce itself to a simple problem in arithmetic, in which advantage and disadvantage are weighed 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 experience shows us cases at law in which the value of the object in controversy is out of all proportion to the prospective expenditure of trouble, excitement, and money. No one who has dropped a dollar into a stream will give two to get it back again. For him, indeed, the question, how much he will expend upon its recovery, is a simple problem in arithmetic. But why does he not go through the same process of calculation when he contemplates a suit at law? Do not say that he calculates on winning it, and that the costs of the suit will fall upon his opponent. Every lawyer knows that the sure prospect of having to pay dearly for victory does not keep many persons from suing. How frequently it happens that the counselor who exposes to a client the badness of his case and dissuades him from suing receives for answer: Bring suit, cost what it may!

How explain this mode of action which, from the standpoint of a rational estimation of material interests, is simply senseless?

The answer usually given to this question is well known. 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. Shall the latter go to war? Let us examine the question from precisely the same standpoint from which the theory of the mania for litigation judges it, in the case of the peasant from whose land a neighbor has ploughed away a few feet, or into whose meadow he has thrown a few stones. What signifies a square mile of barren land compared with a war which costs the lives of thousands, brings sorrow and misery into the palace and the hut, eats up millions and millions of the treasure of the state, and possibly imperils its existence? 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; and such a nation would deserve no better fate.

But if a nation should have recourse to arms, for the sake of a square mile of territory, without inquiring what its value, why not also the peasant for the sake of his strip of land? Or must we dismiss him with the decree: quod licet Jovi, non licet bovi. The nation does not fight for the square mile of territory, but for itself, for its honor and independence; and so in those suits at law in which the disproportion mentioned above exists between the value of the object in controversy and the prospective cost and other sacrifices, there is question not of the insignificant object in controversy, but of an ideal end: the person’s assertion of himself and of his feeling of right. In respect to this end, the person whose rights have been invaded no longer weighs all the sacrifices and inconveniences which the suit at law draws after it—the end in his eyes is compensation for the means. It is not a mere money-interest which urges the person whose rights have been infringed to institute legal proceedings, but moral pain at the wrong which has been endured. He is not concerned simply with recovering the object—he may, perhaps, as frequently happens, to prove the real motive in suing, have devoted it from the first to a charitable institution—but with forcing a recognition of his rights. An inner voice tells him that he should not retreat, that it is not the worthless object that is at stake but his own personality, his feeling of legal right, his self-respect—in short, the suit at law ceases to appear to him in the guise of a mere question of interest and becomes a question of character.

But experience teaches us none the less that many others in the same situation come to the very opposite decision—they like peace better than a legal right asserted at the cost of trouble and anxiety. What kind of a judgment must we pass on this? Shall we say simply: That is a matter of individual taste and temperament; one loves contention more, and the other peace; from the standpoint of law both conclusions are to be equally respected; for the law leaves to every one who has a legal right, the choice of asserting his right or of surrendering it. I hold this view, which is to be met with not unfrequently in life, to be reprehensible in the highest degree, and in conflict with the very essence of law. If it were possible that this view should become general, all would be over with the law itself; since whereas the law, to exist, demands that there should be always a manly resistance made to wrong, those who advocate this view preach that the law should flee like a coward before wrong. To this view I oppose the principle: Resistance to injustice, the resistance to wrong in the domain of law, is a duty of all who have legal rights, to themselves—for it is a commandment of moral self-preservation—a duty to the commonwealth;—for this resistance must, in order that the law may assert itself, be universal. I have thus laid down the principle which it is the purpose of the sequel to elaborate.