The Struggle for Law/Author's Preface

From Wikisource
Jump to navigation Jump to search

Author’s Preface
to the Fifth Edition


IN the spring of 1872, I delivered, before a society of jurists in Vienna, a lecture which I published in the summer of the same year, materially enlarged, under the title: “The Struggle for Law.” In its latter form, it was intended not for lawyers only, but for the general reading public. The object I had in view in writing and publishing the essay was, from the first, less a theoretical than a practico-ethical one. I was concerned, in preparing it, not so much with the promotion of the scientific study of the law as with the cultivation of the state of mind from which the law must ultimately derive its strength, viz.: the courageous and constant exercise of the feeling of right.

Two months after the appearance of the first edition, a second became necessary; during the following year, a third, and the year afterwards a fourth. When issuing the last, my publisher proposed that I should prepare a cheap popular edition, at a much lower price, in order to give it as wide a circulation as possible. This end could be attained only by giving the work a much plainer dress and by making the edition unusually large. As even the previous editions had exceeded the ordinary size, and as the foreign market for the work grew smaller and smaller, by reason of the numerous translations made of it, I did not venture to believe that a fifth edition would become necessary. But the fact that a fifth edition is called for, is proof to me that this little book owed its success, on its first appearance, not to the charm of novelty, but to the conviction of a very large circle of people, that the fundamental view here advocated is correct; and in this belief I am strengthened by the many translations of it which have been made.

The following translations appeared in 1874:

1. A Hungarian, by G. Wenzel. Pesth.

2. A Russian, by an anonymous person, in a legal periodical published in Moscow.

3. A second Russian translation, by Wolkoff, in Moscow.

4. A Modern Greek translation, by M. A. Lappas. Athens.

5. A Dutch translation, by G. A. Van Hamel. Leyden.

6. A Roumanian, in a journal published in Bucharest.

7. A Servian, by Christie. Belgrade.

To these were added, in the year 1875, the following:

8. A French translation, by A. F. Meydieu. Vienna and Paris.

9. An Italian, by Raffaele Mariano.

10. A Danish, by C. G. Graebe. Copenhagen.

11. A Bohemian, anonymously. Brünn.

12. A Polish, by A. Matakiewiez. Lemberg.

13. A Croatian, by H. Hinkovic. Agram. In this present fifth edition I have changed the style of the work somewhat, and entirely omitted the former beginning of the work, for the reason that, considering the meagreness of my space, it had to do with ideas not fully intelligible to the laity nor of much use to lawyers. Whether it would not have been better, in view of the large circulation which my essay has found outside of the legal profession, to have omitted all those parts intended more for lawyers than for the laity, I cannot say. I have not done so, because the passages referred to do not seem to have at all interfered with the circulation of the work among the general public, and because, perhaps, the lawyer might not like to miss them here.

In the subject itself, I have not changed anything. I still consider the fundamental idea of the work so undoubtedly true and irrefutable that I look upon every word said in opposition to it as lost. The man who does not feel that when his rights are despised and trampled under foot, not only the object of those rights, but his own person, is at stake; the man who, placed in such a condition, does not feel impelled to assert himself and his rights, cannot be helped, and I have no interest in trying to convert him. Such a man is a type which must simply be acknowledged to be a fact. Egotism, without any redeeming quality, and materialism are the traits which distinguish him. He would not be the Sancho Panza of the law if he did not see a Don Quixote in every one who, in the assertion of his rights, looked to any other interests than the most grossly material. To him I have nothing to say but these words of Kant, with which I was not acquainted until after the appearance of the last edition: “When a man has made a worm of himself, he cannot complain if he is trampled under foot.”[1] In another place Kant calls this “the casting of one’s rights under the feet of others, and the violation of man’s duty to himself.” And from “duty in relation to the dignity of humanity in us,” he draws the maxim: “Let not your rights be trampled under foot by others unpunished.” This is the idea which I have developed further in this little work. It is engraven on the hearts of all vigorous individuals and nations, and has found expression in a thousand ways. The only merit I can claim is that I have more fully developed the idea. An interesting contribution to the subject of my essay has been furnished by Dr. A. Schmiedl, in his “The Struggle for Law in its Relation to Judaism and Early Christianity.” Vienna: 1875. The saying of the Jewish professor: “Whether the object of thy right be a penny or a hundred dollars, let it be the same in thy eyes,” agrees entirely with the position I maintain.

I now leave it to my essay itself to convince the reader of the correctness of the view which it defends; and in doing so I have a double request to make of those who feel called upon to refute me. I would ask them, first, not to distort my views and charge me with a desire to stir up strife, or with inculcating a love of litigiousness, when I only insist on the struggle for law where the attack on one’s rights involves a slighting of the person also. The disposition which is ready to yield or to be reconciled, the meek and philanthropic spirit, the settlement of disputes, and even the surrender of one’s rights are not always incompatible with my theory. What it is opposed to is simply the unworthy endurance of wrong through cowardice or indolence.

The second thing I ask is that the person who seriously desires to obtain a clear idea of my theory, would make the attempt, in the place of the positive formula of practical procedure which it develops, to put another positive formula. He will then soon discover whither his course will lead him. The question is: What should a man do when his rights are trampled under foot? The person who can give a tenable answer to the question, that is an answer compatible with the existence of law and order and with the dignity of personality has refuted me. The person who cannot do this, must agree with me or be satisfied with superficiality, the mark of muddled minds, which may indeed be rendered dissatisfied and landed in negation, but which can reach no positive view of their own. In purely scientific questions, one may limit himself to the simple refutation of error, even when one is not in a way to point out the positive truth; but in practical matters, where it is certain that one must act, and the question is only how he must act—it is not enough to disregard the positive directions given by another as wrong, but he must put something in their place. I shall wait and see whether this will happen in respect to the positive answer given by me.

One word more, on a point which has been contested even by those with whom I otherwise agree. I refer to my claim that injustice was done to Shylock.

I have not contended that the judge should have recognized Shylock’s bond to be valid; but that, once he had recognized its validity he should not, subsequently, have invalidated it by base cunning. The judge had the choice of deciding the bond valid or invalid. He should have declared it to be the latter, but he declared it to be the former. Shakespeare represents the matter as if this decision was the only possible one; no one in Venice doubted the validity of the bond; Antonio’s friends, Antonio himself, the court, all were agreed that the bond gave the Jew a legal right. And confiding in his right thus universally acknowledged, Shylock calls for the aid of the court, and the “wise Daniel,” after he had vainly endeavored to induce the revenge-thirsty creditor to surrender his right, recognizes it. And now, after the judge’s decision has been given, after all doubt as to the legal right of the Jew has been removed by the judge himself, and not a word can be said against it; after the whole assembly, the doge included, have accommodated themselves to the inevitable decree of the law—now that the victor, entirely sure of his case, intends to do what the judgment of the court authorized him to do, the same judge who had solemnly recognized his rights, renders those rights nugatory by an objection, a stratagem so contemptible that it is worthy of no serious attention. Is there any flesh without blood? The judge who accorded Shylock the right to cut a pound of flesh out of Antonio’s body accorded him, at the same time, the right to Antonio’s blood, without which flesh cannot be. Both are refused to the Jew. He must take the flesh without the blood, and cut out only an exact pound of flesh, no more and no less. Do I say too much when I assert that here the Jew is cheated out of his legal right? True it is done in the interest of humanity, but does chicanery cease to be chicanery because practised in the name of humanity?

RUDOLPH von JHERING.

Göttingen, Feb. 24, 1877.
  1. Kant, “Metaphysiche Anfangsgründe der Tugendlehre.” Aufl. 2. Kreuznach: 1800. S. 133.