The Struggle for Law/Chapter IV
To establish this principle, it is necessary that I should examine somewhat more closely the relation of law in the objective sense to law in the subjective sense of the term. In what does the relation consist? I state, I believe, the theory admitted in our days, accurately, when I say that it consists in this: that the former is the condition precedent of the latter. A concrete legal right exists only where the conditions are to be found which the abstract principle of law has attached to its being. When we have said this, we have, according to the prevailing theory, completely exhausted their relation to one another. But this view is altogether one-sided. It lays stress exclusively on the dependence of the concrete law on the abstract, but overlooks the fact that there is, just as much, a similar relation of dependence in the opposite direction. Concrete law not only receives life and strength from abstract law, but gives it back, in turn, the life it has received. It is of the nature of the law to be realized in practice. A principle of law never applied in practice, or which has lost its force, no longer deserves the name; it is a worn-out spring in the machinery of the law, which performs no service and which may be removed without changing its action in the least. This applies without limitation to all parts of the law—to the law of nations as well as to private and criminal law; and the Roman law has given it its express sanction, inasmuch as it considers desuetudo as an abrogation of a law. This desuetudo corresponds to loss of concrete legal rights by non-user (non-usus). 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. In the former case, its practical realization depends on the performance of their duty by the authorities and public officials, and, in this latter case, on the assertion by individuals of their legal rights. If the latter, for any reason, neglect to assert their rights, permanently and generally, be it from ignorance, love of ease, or fear, the consequence is that the principles of right lose their vigor. And so we may say: The reality, the practical force of the principles of private law, is proved by the assertion of concrete legal right; and as, on the one hand, the latter receives its life from the laws, it, on the other, gives back life to the laws; the relation of objective or abstract legal right and subjective or concrete legal right is the circulation of the blood, which flows from the heart and returns to the heart.
The existence of all the principles of public law depends on the fidelity of public officials in the performance of their duties; that of the principles of private law, on the power of the motives which induce the person whose rights have been violated to defend them: his interest and his sentiment of legal right. If these motives do not come into play, if the feeling of legal right is blunted and weak, and interest not powerful enough to overcome the disinclination to entering into a controversy and the indisposition to go to law, the consequence is that the principle of law involved finds no application.
But, we shall be asked, what matters it? No one suffers from this but the person whose rights have been invaded. I must again have recourse to the illustration already used, of the individual who flees the battle. If there are a thousand men in the fight, the defection of one may make no difference; but if a hundred of them desert their colors, the position of those who remain faithful becomes more and more perilous; the whole weight of the battle falls on them alone. This, it seems to me, is a correct representation of the state of the question. In the domain of private law also, there is a question of a struggle of legal right against injustice, of a common struggle of the whole nation, in which all should cling together. Desertion, in such a case, is treason to the common cause, for it strengthens the common enemy by increasing his boldness and audacity. When arbitrariness and audacity boldly dare to lift their head, it is always a sure sign that those who are called to defend the law have not done their duty. But each of us, in his own place, is called upon to defend the law, to guard and enforce it in his own sphere. The concrete legal right which belongs to him is only his authorization by the state to enter the lists when his interests require it, for the law, and to ward off injustice—a call made upon him which is partial and limited, in contradistinction to that made upon the public official, which is absolute and unlimited. 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 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? When these things come to pass, the order of civil life is sacrificed in one direction, and it is not easy to say how far the disastrous consequences produced may reach; whether, for instance, the whole system of credit may not be seriously affected thereby. For every man will do all in his power to have nothing to do with people who force him to wrangle and struggle where his legal right is clear; and he will transfer his capital to other places and order his goods elsewhere.
Under such circumstances, the lot of the few who have the courage to enforce the law becomes a real martyrdom. Their strong feeling of legal right, which will not permit them to quit the field, becomes a curse to them. 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. Do not accuse injustice of usurping the place of the law, but the law of permitting that usurpation. If I were called upon to pass judgment on the practical importance of the two principles: “Do no injustice,” and: “Suffer no injustice,” I would say that the first rule was: Suffer no injustice, and the second: Do none! If we take man as he actually is, there is no doubt that the certainty of meeting a firm and resolute resistance is far more powerful to prevent the commission of an injustice, than a simple prohibition which has, in fact, no greater practical force than a moral precept.
After all this, can I be charged with claiming too much when I say: 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? 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? And if, in the former case, cowardly flight is considered treason to the common cause, why is it not treason in the latter also? Law and justice cannot thrive in a country simply because the judge sits always ready on the bench, and the agents of the police power are ever at its command. That they may thrive, every member of society must co-operate with these. Every one is called upon, and it is every one’s duty, to crush the hydra-head of arbitrariness and lawlessness, whenever they show it. Every man who enjoys the blessings of the law should also contribute his share to maintain the power of the law and respect for the law. Every man is a born battler for the law in the interest of society.
I do not need to call attention to the extent to which the vocation of the individual to assert his legal right is ennobled when it is viewed in this way. Our actual theory tells us only of a purely passive attitude towards the law; the doctrine here advocated puts in its place one of reciprocity, in which the person with legal rights returns to the law the service which he receives from it. Our doctrine thus looks upon him as a collaborator in a great national work. Whether the person himself looks upon it in this way is a matter of no moment. 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 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.
We have now reached the ideal height of the struggle for law. Rising from the lower motive of interest we have lifted ourselves to the point of view of the moral self-preservation of the person and finally come to co-operation in the realization of the idea of law.
In my rights the law was violated and denied. In my rights it is defended, asserted and restored. 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. To refute this statement, I might refer to the Roman law, in which the actuality of this ideal view is attested most clearly by the existence of the popular actions, but we would be doing ourselves a great injustice, if we were to deny that we also possessed this ideal feeling. Every man who sees the law violated and feels indignation at the sight, possesses it. While, in fact, an egotistical motive is mixed up with the painful feeling caused by a personal wrong, this indignation is produced exclusively by the power of morality over the human heart. It is the energy of our moral nature protesting against the violation of the law; it is the most beautiful and the highest testimony which the feeling of legal right can bear to itself; it is a moral phenomenon which calls for the study of the psychologist and appeals to the imagination of the poet. 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; a fact which proves that they have been wounded in the noblest part of their being and touched in its most sensitive fibres. 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 if the limited power of the individual spends itself in vain against institutions which afford a protection to lawlessness which they refuse to right, it is plain that the storm recoils on the head of its author; and then one of two things: either his wounded feeling of legal right will make of him one of those criminals of whom I shall speak further on, or he will afford us the no less tragical spectacle of a man who, ever bearing in his breast the sting which injustice that he has not been able to resist, has left there, gradually loses his moral life and all faith in the law.
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. However, even the cold feeling of legal right, destitute of all idealism, which is affected only by the wrong done to itself, fully understands the relation between concrete legal right and the law, which I have demonstrated and summed up thus: My legal right is the law; when my legal right is violated, the law is violated; when it is asserted, the law is asserted. It sounds paradoxical, and yet it is true, that precisely among jurists this view is far from being usual. According to their view, in the struggle for concrete legal rights, the law itself is in no way involved; the struggle does not turn on the abstract law, but on its incorporation in the form of this concrete legal right, a photograph, so to speak, of that law, in which it has become fixed, but in which it is not itself directly affected. I do not intend to question the technical necessity of this view, but it should not keep us from acknowledging the correctness of the opposed view, which places the law on the same level with concrete legal right, and sees in the imperiling of the latter the imperiling of the former also. To the unprejudiced feeling of right, the latter view, it seems to me, must commend itself much more strongly than the former. The best proof of what I here allege is the expression which the Germans employ, and which was used in the Latin. In a case at law, the plaintiff is said in Germany to invoke the law (das Gesetz anrufen); the Romans called the complaint legis actio. The law itself is called in question; it is the law itself which is under discussion in a particular case—a view of the highest importance for the understanding of the old Roman process, legis actio. 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. When the legal right of the individual is sacrificed, the law is sacrificed likewise.
This view, which I may call the solidarity of the law with concrete legal right, is, as I have shown above, the real expression of their relations in their most intimate nature. It is not, however, so very obscure but that the mere egotist, incapable of entertaining an elevated idea, may catch it. On the contrary, it may be the one which he understands the most readily, for his interest is to associate himself with the state in the struggle. And thus even he is, without his knowledge or his will, lifted above himself and his legal right to that ideal social eminence where he becomes the representative of the law. The truth remains truth, even when the individual defends it only from the narrow point of view of his personal interest. It is hatred and revenge that take Shylock before the court to cut his pound of flesh out of Antonio’s body; but the words which the poet puts into his mouth are as true in it as in any other. It is the language which the wounded feeling of legal right will speak, at all times and in all places; the power, the firmness of the conviction, that law must remain law, the lofty feeling and pathos of a man who is conscious that, in what he claims, there is question not only of his person but of the law. “The pound of flesh,” Shakespeare makes him say:—
- “The pound of flesh, which I demand of him,
Is dearly bought, is mine, and I will have it;
If you deny me, fie upon your law;
There is no force in the decrees of Venice.
. . . . . I crave the law.
. . . . . I stay here upon my bond.”
- “The pound of flesh, which I demand of him,
The picture of Shylock conjures up another before my mind, the no less historical than poetical one of Michel Kohlhaas, which Heinrich von Kleist has described in his novel of that name with all the fascination of truth. Shylock retires from the scene entirely broken down by grief; his strength is gone and he bows without resistance to the decision of the judge. Not so Michel Kohlhaas. After every means to obtain his rights, which have been most grievously violated, has been exhausted; after an act of sinful cabinet-justice has closed the way of redress to him, and Justice herself in all her representatives, even to the highest, has sided with injustice, a feeling of infinite woe overpowers him at the contemplation of the outrage that has been done him and he exclaims: “Better be a dog, if I am to be trampled under foot, than a man”; and he says: “The man who refuses me the protection of the law relegates me to the condition of the savage of the forest, and puts a club in my hand to defend myself with.” He snatches the soiled sword out of the hand of such venal Justice and brandishes it in a manner that spreads consternation far and wide through the country, causes the state to shake to its very foundations and the prince to tremble on his throne. It is not, however, the savage feeling of vengeance that animates him; he does not turn murderer and brigand, like Karl Moor, who wished “to make the cry of revolt resound through all nature to lead into the fight against the race of hyenas, air, earth and sea,” whose wounded feeling of justice causes him to declare war against all humanity; but it is a moral idea which urges him forward, the idea that “it is his duty to the entire world to consecrate all his strength to the obtaining of satisfaction and to the guarding of his fellow-citizens against similar injustice.” 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. At last, when the hope of obtaining justice dawns upon him, he voluntarily lays down his arms; but, as if chosen to illustrate by example to what depth of ignominy the disregard of law and dishonor could descend at that time, the safe conduct given him, and the amnesty are violated, and he ends his life on the place of execution. 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; and, reconciled with himself, the world, and God, he gladly and resolutely follows the executioner. What reflections does not this legal drama suggest! Here is an honest and good man, filled with love for his family, with a simple, religious disposition, who becomes an Attila and destroys with fire and sword the cities in which his enemy has taken refuge. And how is this transformation effected? By the very quality which lifts him morally high above all his enemies who finally triumph over him; by his high esteem for the law, his faith in its sacredness, the energy of his genuine, healthy feeling of legal right. The tragedy of his fate lies in this that his ruin was brought about by the superiority and nobility of his nature, his lofty feeling of legal right, and his heroic devotion to the idea of law, which made him oblivious to all else and ready to sacrifice everything for it, in contact with the miserable world of the time in which the arrogance of the great and the powerful was equaled only by the venality and cowardice of the judges. The crimes which he committed fall much more heavily on the prince, his functionaries and his judges, who forced him out of the way of the law into the way of lawlessness. 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. The guardian and sentinel of the law is changed into its murderer; the physician poisons his patient; the guardian strangles his ward. In ancient Rome, the corrupt judge was punished with death. For the justice which has violated the law there is no accuser as terrible as the sombre, reproachful form of the criminal made a criminal by his wounded feeling of legal right—it is its own bloody shadow. The victim of corrupt and partial justice is driven almost violently out of the way of the law; he becomes the avenger of his own wrong, the executor of his own rights, and it not infrequently happens that, overshooting the mark, he becomes the sworn enemy of society, a robber and a murderer. 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. It is said that the blood of martyrs does not flow in vain, and the saying may have been true of him. It may be that his warning shadow sufficed for a long time to make the legal oppression of which he was the victim an impossibility.
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. And it is not only a few very strong and violent characters, in which the national feeling of legal right raises its protest against such a condition of things, but this protest is sometimes repeated by the whole population under certain forms, which, according to their object or to the manner in which the whole people or a definite class look upon them or apply them, may be considered as popular substitutes for, and accessories to, the institutions of the state. 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. Here also belong the revenge for bloodshed of the Corsicans and so-called lynch-law in the United States. All these show very plainly that the legal institutions of the country are not in harmony with the feeling of the people or of a class. They always imply a reproach to the state, either that it makes them necessary or that it endures them. 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. In vain do we look for facts analogous to these in the early history of Rome, for the institutions of the state were then in perfect harmony with the national feeling of legal right.
- I would remark, for the benefit of those of my readers who have not studied law, that these suits (actiones populares) afforded an opportunity to all who desired it to appear as representatives of the law and to bring those who had violated it to account; and not only where there was question of the public interest, and consequently also of that of the accuser, but wherever an individual whose rights had been violated was not in a way to defend himself fully, as, for instance, when a minor had been wronged in a contract of sale, or where a tutor had been unfaithful to his pupil, etc. See my “Geist des röm. Rechts,” iii, p. 107. These actions, therefore, involved an appeal to the ideal feeling which defends the law because it is the law, and not on account of any personal interest. Others of these actions appealed to the ordinary motive of cupidity, by causing the accuser to hope for the fine imposed on the accused, and hence it is that the same stain attached to them, or rather to their institution for gain, which among us attaches to informers. When I add that the actions of the second class mentioned above disappeared in the later Roman law, and that those of the first have disappeared in our own, every reader will be able to draw the correct conclusion from these premises; viz., that the conditions which they supposed had disappeared.
- The eminently tragic interest which we feel in Shylock, I find to have its basis precisely in the fact that justice is not done him; for this is the conclusion to which the lawyer must come. The poet is, of course, free to build up his own system of jurisprudence, and we have no reason to regret that Shakespeare has done so here; or rather that he has changed the old fable in nothing. But when the jurist submits the question to a critical examination, he can only say that the bond was in itself null and void because its provisions were contrary to good morals. The judge should, therefore, have refused to enforce its terms on this ground from the first. But as he did not do so, as the “wise Daniel” admitted its validity, it was a wretched subterfuge, a miserable piece of pettifoggery, to deny the man whose right he had already admitted, to cut a pound of flesh from the living body, the right to the shedding of the blood which necessarily accompanied it. Just as well might the judge deny to the person whose right to an easement he acknowledged, the right to leave footmarks on the land, because this was not expressly stipulated for in the grant. One might almost believe that the tragedy of Shylock was enacted in the earliest days of Rome; for the author of the Twelve Tables held it necessary to remark expressly in relation to the laceration of the debtor (in partes secare) by the creditor, that the size of the piece should be left to his free choice. (Si plus minusve secuerint, sine fraude esto!)