The Struggle for Law/Chapter I
HE end of the law is peace. The means to that end is war. So long as the law is compelled to hold itself in readiness to resist the attacks of wrong—and this it will be compelled to do until the end of time—it cannot dispense with war. The life of the law is a struggle,—a struggle of nations, of the state power, of classes, of individuals.
All the law in the world has been obtained by strife. Every principle of law which obtains had first to be wrung by force from those who denied it; and every legal right—the legal rights of a whole nation as well as those of individuals—supposes a continual readiness to assert it and defend it. The law is not mere theory, but living force. And hence it is that Justice which, in one hand, holds the scales, in which she weighs the right, carries in the other the sword with which she executes it. The sword without the scales is brute force, the scales without the sword is the impotence of law. The scales and the sword belong together, and the state of the law is perfect only where the power with which Justice carries the sword is equalled by the skill with which she holds the scales.
Law is an uninterrupted labor, and not of the state power only, but of the entire people. The entire life of the law, embraced in one glance, presents us with the same spectacle of restless striving and working of a whole nation, afforded by its activity in the domain of economic and intellectual production. Every individual placed in a position in which he is compelled to defend his legal rights, takes part in this work of the nation, and contributes his mite towards the realization of the idea of law on earth. Doubtless, this duty is not incumbent on all to the same extent. Undisturbed by strife and without offense, the life of thousands of individuals passes away, within the limits imposed by the law to human action; and if we were to tell them: The law is a warfare, they would not understand us, for they know it only as a condition of peace and of order. And from the point of view of their own experience they are entirely right, just as is the rich heir into whose lap the fruit of the labor of others has fallen, without any toil to him, when he questions the principle: property is labor. The cause of the illusion of both is that the two sides of the ideas of property and of law may be subjectively separated from each other in such a manner that enjoyment and peace become the part of one, and labor and strife of the other. If we were to address ourselves to the latter, he would give us an entirely opposite answer. And, indeed, property, like the law, is a Janus-head with a double face. To some it turns only one side, to others only the other; and hence the difference of the picture of it obtained by the two. This, in relation to the law, applies to whole generations as well as to single individuals. The life of one generation is war, of another peace; and nations, in consequence of this difference of subjective division, are subject to the same illusion precisely as individuals. A long period of peace, and, as a consequence thereof, faith in eternal peace, is richly enjoyed, until the first gun dispels the pleasant dream, and another generation takes the place of the one which had enjoyed peace without having had to toil for it, another generation which is forced to earn it again by the hard work of war. Thus in property and law do we find labor and enjoyment distributed. But the fact that they belong together does not suffer any prejudice in consequence. One person has been obliged to battle and to labor for another who enjoys and lives in peace. Peace without strife, and enjoyment without work, belong to the days of Paradise. History knows both only as the result of painful, uninterrupted effort.
That, to struggle, is, in the domain of law, what to labor, is, in that of economy, and, that, in what concerns its practical necessity as well as its moral value, that struggle is to be placed on an equal footing with labor in the case of property, is the idea which I propose to develop further below. I think that in so doing I shall be performing no work of supererogation, but, on the contrary, that I shall be making amends for a sin of omission which may rightly be laid at the door of our theory of law; and not simply at the door of our philosophy of law, but of our positive jurisprudence also. Our theory of law, it is only too easy to perceive, is busied much more with the scales than with the sword of Justice. The one-sidedness of the purely scientific standpoint from which it considers the law, looking at it not so much as it really is, as an idea of force, but as it is logically, a system of abstract legal principles, has, in my opinion, impressed on its whole way of viewing the law, a character not in harmony with the bitter reality. This I intend to prove.
The term Recht is, it is well known, used in our language in a twofold sense,—in an objective sense and in a subjective sense. Thus Recht, in the objective sense of the word, embraces all the principles of law enforced by the state; it is the legal ordering of life. But Recht, in the subjective sense of the word, is, so to speak, the precipitate of the abstract rule into the concrete legal right of the person. In both directions the law meets with opposition. In both directions it has to overcome that opposition; that is, it has to fight out or assert its existence through a struggle. As the real object of my consideration, I have selected the struggle in the second direction, but I must not omit to demonstrate that my assertion that to struggle is of the very essence of the law, in the former direction also, is correct.
In regard to the realization of the law, on the part of the state, this is not contested, and it, therefore, does not call for any further exposition. The maintenance of law and order by the state is nothing but a continual struggle against the lawlessness which violates them. But it is otherwise in regard to the origin of law, not only as to the origin of the most primitive of all law, at the beginning of history, but also the rejuvenescence of law which is taking place daily under our eyes, the doing away with existing institutions, the putting to one side of existing principles of law by new ones; in short, in regard to progress in the domain of the law. For here, to the view which I maintain, that the principles of jurisprudence are subject to the same law in their origin as in the rest of their history, there is, nevertheless, another theory opposed, one which is still, at least in our science of Roman law, universally admitted, and which I may briefly characterize after its two chief representatives as the Savigny-Puchta theory of the origin of the law. According to this theory, the formation of the body of principles of jurisprudence is effected by a process as unnoticed and as painless as is the formation or growth of language. The building up of the body of principles of jurisprudence calls for no strife, no struggle. It is not even necessary, according to this theory, to go in search of them, for the principles of jurisprudence are nothing but the quiet working power of truth which, without any violent effort, slowly but surely makes its way; the power of conviction to which minds gradually open and to which they give expression by their acts: a new principle of jurisprudence comes into being with as little trouble as any rule of grammar. The principle of the old Roman law, that the creditor might sell his insolvent debtor as a slave in foreign parts, or that the owner of a thing might claim it from any one in whose possession he found it, would have been formed in ancient Rome, according to this view, scarcely in any other manner than that in which the grammatical rule that cum governs the ablative was formed.
This is the idea of the origin of the law which I myself had when I left the university, and under the influence of which I lived for a good many years. Has this idea any claim to truth? It must be admitted that the law, like language, has an unintended, unconscious development, or, to call it by the traditional expression, an organic development from within outward. To this development, we owe all those principles of law which are gradually accumulated from the autonomous balancing of the accounts of the legal rights of men in their dealings with one another, as well as all those abstractions, consequences and rules deduced by science from existing laws, and presented by it to the consciousness. But the power of these two factors, the intercourse of man with man, and science, is a limited one. It can regulate the motion of the stream, within existing limits, and even hasten it; but it is not great enough to throw down the dikes which keep the current from taking a new direction. Legislation alone can do this; that is, the action of the state power intentionally directed to that end; and hence it is not mere chance, but a necessity, deeply rooted in the nature of the law, that all thorough reforms of the mode of procedure and of positive law may be traced back to legislation. True it is, that the influence of a change made by the legislative power in the existing law may possibly be limited entirely to the sphere of the abstract, without extending its effects down into the region of the concrete relations which have been formed on the basis of the law hitherto—to a new change in the machinery of law, a replacing of a worn out screw or roller by a more perfect one. But it very frequently happens that things are in such a condition that the change can be effected only at the expense of an exceedingly severe encroachment on existing rights and private interests. In the course of time, the interests of thousands of individuals, and of whole classes, have become bound up with the existing principles of law in such a manner that these cannot be done away with, without doing the greatest injury to the former. To question the principle of law or the institution, means a declaration of war against all these interests, the tearing away of a polyp which resists the effort with a thousand arms. Hence every such attempt, in natural obedience to the law of self-preservation, calls forth the most violent opposition of the imperiled interests, and with it a struggle in which, as in every struggle, the issue is decided not by the weight of reason, but by the relative strength of opposing forces; the result being not infrequently the same as in the parallelogram of forces—a deviation from the original line towards the diagonal. Only thus does it become intelligible, that institutions on which public opinion has long since passed sentence of death continue to enjoy life for a great length of time. It is not the vis inertiæ which preserves their life, but the power of resistance of the interests centering about their existence.
But in all such cases, wherever the existing law is backed by interests, the new has to undergo a struggle to force its way into the world—a struggle which not infrequently lasts over a whole century. This struggle reaches its highest degree of intensity when the interests in question have assumed the form of vested rights. Here we find two parties opposed each to the other, each of which takes as its device the sacredness of the law; the one that of the historical law, the law of the past; the other that of the law which is ever coming into existence, ever renewing its youth, the eternal, primordial law of mankind. A case of conflict of the idea of law with itself which, for the individuals who have staked all their strength and their very being for their convictions and finally succumb to the supreme decree of history, has in it something that is really tragic. All the great achievements which the history of the law has to record—the abolition of slavery, of serfdom, the freedom of landed property, of industry, of conscience, etc.—all have had to be won, in the first instance, in this manner, by the most violent struggles, which often lasted for centuries. Not infrequently streams of blood, and everywhere rights trampled under foot, mark the way which the law has traveled during such conflict. For the law is Saturn devouring his own children. The law can renew its youth only by breaking with its own past. A concrete legal right or principle of law, which, simply because it has come into existence, claims an unlimited and therefore eternal existence, is a child lifting its arm against its own mother; it despises the idea of the law when it appeals to that idea; for the idea of the law is an eternal Becoming; but that which has Become must yield to the new Becoming, since
——— Alles was entsteht,
Ist werth dass es zu Grunde geht.
And thus the historical development of law presents us with a picture of research, struggle, fight, in short of toilsome, wearying endeavor. The human mind working unconsciously towards the formation of language is met by no forcible resistance, and art has no opponent to overcome but its own past—the prevailing taste. It is not so with law considered as an end. Cast into the chaotic whirl of human aims, endeavors, interests, it has forever to feel and seek in order to find the right way, and when it has found it, to overthrow the obstacles which would impede its course. If it be an undoubted fact, that this development, like that of art or language, is governed by law and is uniform, it cannot be denied that it departs largely from the latter in the manner in which it takes place; and in this sense, therefore, we are compelled decidedly to reject the parallel instituted by Savigny—a parallel which found universal favor so rapidly—between law on the one hand and language and art on the other. This doctrine is false, but not dangerous as a philosophical opinion. As a political maxim, however, it contains an error pregnant with the most ominous consequences imaginable, because it feeds man with hope where he should act, and act with a full and clear consciousness of the object aimed at, and with all his strength. It feeds him with the hope that things will take care of themselves, and that the best he can do is to fold his arms and confidently wait for what may gradually spring to light from that primitive source of all law called: the natural conviction of legal right. Hence the aversion of Savigny and of all his disciples to the interference of legislation, and hence the complete ignoring of the real meaning of custom, in the Puchta theory of the law of custom. Custom to Puchta is nothing but a mere mode of discovering the conviction as to what is legally right: but that this very conviction is first formed through the agency of its own action, that through this action it first demonstrates its power and its calling to govern life; in short that the principle: the law is an idea which involves force—to this the eyes of this great mind were entirely closed. But, in this, Puchta was only paying tribute to the time in which he lived. For his time was the romantic in our poetry, and the person who does not recoil from transferring the idea of the romantic to jurisprudence, and who will take the trouble to compare the corresponding directions followed in the two spheres with one another, will perhaps not find fault with me when I allege that the Historical School in law might just as well have been called the romantic. That law and the principles of legal right come into existence or are formed painlessly, without trouble, without action, like the vegetable creation, is a really romantic notion, that is, a notion based on a false idealization of past conditions. Stern reality teaches us the contrary, and not alone that small part of that reality which we have before our eyes ourselves, and which presents us, almost everywhere, with the most strenuous endeavors of nations in respect to the formation of their legal relations—questions of the gravest nature which crowd one upon another; but the impression remains the same, no matter what part of the past we contemplate. Savigny's theory can, therefore, appeal to nothing but prehistoric times of which we have no information. But if we may be permitted to indulge in hypothesis in relation to them, I am willing to oppose to Savigny's, which represents them as the time of the peaceable, gentle evolution of the principles of law from the inner consciousness of popular conviction, my own hypothesis, which is diametrically opposed to his; and it will have to be granted to me that, to say the least, it has in its favor, the analogy of what we can see of the historical development of law, and as I believe, the advantage, likewise, of greater psychological probability. Primitive times! It was once the fashion to deck them out in every beautiful quality: truth, frankness, fidelity, simplicity, religious faith; and in such soil, principles of law would certainly have been able to thrive without any other force to assist their growth than the power of the conviction of right: they would not have needed the sword, nor even the unassisted arm. But to-day we all know that the pious and hoary past was noted for qualities the very opposite of these, and the supposition that they were able to get their principles of law in an easier manner than all later generations can scarcely expect to be credited now. For my part, I am convinced that the labor which they must have expended on their task, was one still more difficult, and that even the simplest principles of law, such for instance as those named above, from the most ancient Roman law, of the authority of the owner to claim back his chattel from any one in whose possession it was found, and of the creditor to sell his insolvent debtor into foreign servitude, had to be first fought out by the hardest battles, before they obtained unquestioned recognition. But be this as it may, we may leave the most primitive times out of consideration. The information afforded us by the remotest history on the origin of law is sufficient. But this information is to the effect: the birth of law like that of men has been uniformly attended by the violent throes of childbirth.
And why should we complain that it is thus attended? The very fact that their law does not fall to the lot of nations without trouble, that they have had to struggle, to battle and to bleed for it, creates between nations and their laws the same intimate bond as is created between the mother and her child when, at its birth, she stakes her own life. A principle of law won without toil is on a level with the children brought by the stork: what the stork has brought, the fox or the vulture can take away again. But from the mother who gave it birth, neither the fox nor the vulture can take the child away; and just as little can a people be deprived of the laws or institutions which they have had to labor and to bleed for, in order to obtain. We may even claim that the energy and love with which a people hold to and assert their laws, are determined by the amount of toil and effort which it cost them to obtain them. Not mere custom, but sacrifice, forges the strongest bond between a people and their principles of legal right; and God does not make a gift of what it needs to the nation He wishes well, nor does He make the labor necessary to its acquisition easy, but difficult. In this sense, I do not hesitate to say: The struggle needed by laws to fight their way into existence is not a curse, but a blessing.