The Struggle for Law/Introduction

by Rudolf von Jhering

Introduction
to the Translated Volume

By Albert Kocourek^[1]

T is the fortune of the generality of men to follow the beaten path, to use tools already designed, and to think in terms already fashioned. In such lives there is no room for cataclysms, or great events; there is no place there, either, for quarrel with the existing order, or for effort to alter the accepted course. Such lives constitute the cell matter of the social organism, reacting mechanically, or at least without fixed resistance, to the influences from without and within. Rarely, however, in the complicated web of history, a labyrinth of lines will cross each other at a common point to mark out persons of great fortune or misfortune. Such was the imagery adopted by an accomplished novelist to explain his fatalistic views; and if there be merit in this sprightly figure, we will have no difficulty in conceiving an interesting conjunction of favoring lines to explain the brilliant career of Rudolph von Jhering.

One does not read far into jurisprudence without encountering both his name and his influence. He was a builder of new roads, a maker of new tools, and a creator of ideas. He came upon the world’s stage as the last great influence out of centuries of struggle beginning with the revival of the study of Roman law at Bologna, and the successive stages of Glossators and Commentators, “Mos Italicus” and “Mos Gallicus,” the Practical School and Natural Law, and finally the Historical School, to compose the differences between Romanists and Germanists, and to prepare the way for the Civil Code.^[2]

Jhering, the son of a lawyer, was born at Aurich on the shores of the North Sea, in East Frisia, August 22, 1818. He studied law at Heidelberg, and (after the established custom of German students who wander from one university to another) also at Munich, Göttingen, and Berlin. He became a “Privat-Docent” at Berlin in 1844 just as Gustav Hugo, the founder of the Historical School which Jhering was later to overthrow, laid down his labors in death. He became ordinary professor at Basel 1845, Rostock 1846, Kiel 1849, Giessen 1852, Vienna 1868, and at Göttingen 1872, where he remained until his death on September 7, 1892.^[3]

If Jhering had not become the most renowned jurist of the second half of the last century, it is not unlikely that he would have gained fame in any other calling where personality, a comprehensive and lively domination of complex realities, or the literary quality might play a part in the attainment of success. The power of his personality is attested by the fact of his great popularity; his lectures were always crowded with listeners; and his home was the shrine at which the devoted from all quarters of the world worshiped. Ideas were obliterated and men effaced before him. Merkel, who himself became a jurist of great fame, says that after hearing Jhering lecture on Roman law, the discourse of Vangerow became a closed book. He was able to arouse great enthusiasm, to attract the multitude from within and without the university, and to enliven with bright colors the neutral themes of the law. He could sway the world both by his personal presence, and in no less degree by his writings. It is natural to speculate as to what might have been the career of such a man if his labors had dealt not alone with the learned public, but with the unorganized and unthinking masses in issues more stirring than the unemotional materials of legal science. At a hospitable juncture he might have created or subverted a dynasty. The literary quality of Jhering’s writing is well shown in the opening lines of his “Geist,” which might be mistaken for the stately measures of a sonorous epic. Another phase is exhibited in the address here published. Never before has a moral duty been asserted with such eloquence; never before has a “lay sermon addressed to the conscience”^[4] been more spontaneously and widely accepted. Within two years this address went into twelve editions, and although first published in German more than forty years ago, it is still being republished, the last German edition being the eighteenth. At this time it has appeared in nearly thirty different languages, including Japanese. There have been two translations into English, the present rendering by Mr. Lalor first published by Messrs. Callaghan & Co. in 1879, and a version published at London in 1884 under the title “Battle for Right.” The present work has even been the inspiration of a novel by Karl Emil Franzos published (1882) under the same German title.

The books of jurists do not usually come within the mental range of the so-called general reader; as a rule they are limited to some definite system of law and to those technically learned in that system. A large part of Jhering’s writings, however, carries an interest uncircumscribed by geographical boundaries, and has gained the widest reception of perhaps any European jurist, not alone among those learned in the law, but also among the cultured lay classes. It is not difficult to understand this fortunate and unusual extension of Jhering’s fame; for it appears to rest on two chief grounds: first, that he treated by preference what Austin has called pervasive legal ideas — ideas of universal significance, ideas unlimited by the accidents of history, or the particularities of legal systems; and, second, that he had the faculty of powerful literary presentation. Jhering was a philosopher in the law, if not of the law, and had he been less, it is not unlikely that he would have remained a national factor of limited importance, instead of becoming an international figure.

Comparative biography was a completely realized art before comparative law was even thought of; and writers who have dealt with the lives of jurists have commonly resorted to the comparative method. In the case of Jhering the counter balance naturally has been either Windscheid (who died in the same year and within a few weeks of Jhering, and whose span of life was almost identical with his), or Savigny, the most conspicuous representative of the Historical School. The dissimilarities are striking in either case whether we consider the contrasted figures either from the point of view of personality, method, or ideas. Savigny, aside from being the leader of a great school, was the greatest Romanist of the first half of the nineteenth century. Jhering at the age of 24 had written a doctoral study, “De hereditate possidente” (Berlin, 1842), which already was considered a “remarkable dissertation,” and when in 1852 (at the age of 34) he published the first volume of his “Geist,” the star of Savigny’s genius paled in the glare of Jhering’s rising fame.

The theory of the Historical School, of an unconscious growth of law, was contradicted by Jhering, who insisted on conscious purpose as the dominant factor of legal evolution.^[5]

Two observations may be permitted at this point: first, that fundamental theories in the science of law necessarily produce important consequences either first or last in any legal system. The legislative era could not have come to pass so long as the Historical School remained in the ascendancy. If it is to be supposed that Savigny intended to assert an irremediable lack of competence in the people to attain the conscious stage of legislation, then that distinguished jurist was spared some part of the mental anguish of witnessing the historical refutation of such a position, had his life been prolonged another quarter of a century. He himself became Prussian minister for the revision of legislation, and lived to see the formulation of the General German Bills of Exchange Code (1847) and the General German Commercial Code (1861) in the time of the “Bund”; but a benignant fate closed his eyes before the date of the imperial statute (1873) which authorized a commission to codify the whole domain of private law, resulting finally (1896) in the enactment of the German Civil Code.

The second observation is that any assertion of a simple unifying principle in the realm of causality is likely to assert too much. It is entirely clear to us now that there was an important element of truth in the theory of an unconscious development of law; it is equally apparent that the principle of purpose is also true. The error lies only in claiming an exclusive operation for either theory of law. It is, however, one of the most interesting phases of historical study to trace out the actions and reactions of ideas, and Jhering was a man who was able to do this with a lofty and inspired outlook on the manifold complication in the restless flow of life. The ascending spiral of evolution of juristic thought is plainly visible, to speak only of recent centuries, in the age of rationalism with its revolutionary by-product which gave way to an era of reactionary conservatism in the Historical School, and which later is supplanted by the epoch of legislation and socialization of the law. But, now, to attempt a simple generalization of causality in history, even with our better fortified knowledge, and in the light of an accumulation of experience, would likely be as dangerous and as inadequate as before. It should be noticed that when we speak of causality we enter the sphere of the historian and jurist, provinces where Jhering attained his surest fame. It is true that Jhering later attempted the treacherous problem of finality—a problem perilous even for the trained philosopher—but it is believed that if he had restricted himself to his earlier aspirations that his labors would have remained a standing monument of unquestioned juristic scholarship throughout the corroding processes of time.

Merkel makes an illuminating comparison between Savigny and Jhering sufficient in itself to explain the differences of character of these two great civilians.^[6] Savigny, he says, retired to the shadows of his canvas. Both were masters of expression, but Savigny hid his personality behind his work, while Jhering projected himself in living reality in every line. He attempted, as Merkel again says, to carry his reader by storm. Savigny sheltered himself in a mantle of reserve and directed his forces of ideas from a sequestered distance, while Jhering waged his battles on the firing line and determined the issues of war by the commanding aid of his conquering presence.

Of Windscheid, who was the great figure at Vienna when Jhering was the chief attraction at Göttingen, we may speak again in connection with a fundamental legal theory which has turned out to be of the greatest practical moment, and which has been a point of great controversy in German legal science for several decades.^[7] Windscheid defined rights from the standpoint of protection of the will,^[8] while Jhering made interests the essence of rights. The logical consequences of Windscheid’s view is a formal, individualistic, and unhistorical conception of law; while Jhering’s definition, on the contrary, leads to the exact opposites, and invests the law with a positive social function.^[9] Windscheid adhered to his position to the last, but Jhering’s view has attracted the greater number of followers, and seems more nearly to indicate the real nature of rights as accepted by any of the present-day schools of legal philosophy.

Without the notion of interests, formulated by Jhering in the “Geist,” he could not have reached the conception of the “Zweck.” If rights are legally protected interests, it follows that the State must determine what interests it will select as fit for protection, and this question then logically develops the further inquiry of purpose in the law, which Jhering stated in the form of the principle, “the object is the creator of the law.” On this three-rung ladder of reasoning, he attempted to ascend the philosophic heights, and whatever may be thought of his efforts it cannot be doubted that he laid a pragmatic, if not a metaphysical, foundation for a new juristic construction which enabled the law to emerge from the blind alley into which it had entered in following Kant.

It is perhaps still a question whether philosophies create movements in the outer world, or whether they only reflect or follow these movements; but in any case the social utilitarianism of Jhering came in season to synchronize with the most significant development of the law in modern times — the change from the individual to the social emphasis. Jhering’s solution was not, however, the only escape from Kant’s blind alley. The Neo-Kantians, too, have become social utilitarians, but their State yet has the negative character of a “Rechtsstaat.” Stammler, the leading exponent of a revised Kantianism, is unable to lay down a single positive principle to govern the attitudes of the law. The difference between “do not” and “do” is all that separates the civilizations of the Orient and Occident, and a system of legal philosophy which makes the function of the State no different from that of a street-crossing policeman can never be productive of anything less unprogressive than a Chinese system of law. Even with its philosophic and psychological shallowness, the “Zweck” of Jhering is therefore to be preferred over the “Richtiges Recht” of Stammler.

Compared with an encyclopedic creator like Kohler, who many years ago engaged in a typically German exchange of ideas with Jhering in connection with the Shylock problem raised in this work,^[10] but who has lived to supplant Jhering in the kingdom of fame and take unto himself the extraordinary distinction of the world’s juristic leadership, the latter’s works are not extensive beyond expectation either in bulk or item.

Briefly, Jhering’s works are the following: (1) “Abhandlungen aus dem römischen Recht” (1844); (2) “Civilrechtsfälle ohne Entscheidungen” (1847); (3) “Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwickelung” (4 vols., 1852-65); (4) “Das Schuldmoment im römischen Privatrecht” (1867); (5) “Über den Grund des Besitzeschutzes” (1868); (6) “Die Jurisprudenz des täglichen Lebens” (1870); (7) “Der Kampf ums Rechts” (1872) (the present work); (8) “Der Zweck im Recht” (2 vols., 1877-83); (9) “Vermischte Schriften juristischen Inhalts” (1879); (10) “Gesammelte Aufsätze” (3 vols. 1881-86); (11) “Das Trinkgeld” (1882); (12) “Scherz und Ernst in der Jurisprudenz” (1885); (13) “Der Besitzwille: Zugleich eine Kritik der herrschenden juristischen Methode” (1889); and posthumously: (14) “Vorgeschichte der Indo-Europäer” (1894); (15) “Entwickelungsgeschichte des römischen Rechts: Einleitung” (1894).^[11]

Jhering labored diligently until the last, and although more than seventy years of age at his death, he left behind him many things in preparation, unaccomplished. His impulse to create was boundless; each idea developed a series of more general ideas, and his physical body was unable to keep pace with his mental activity. For this reason, his chief works are admittedly only fragments. The “Geist” remained uncompleted when he conceived the “Zweck,” and the latter work was only a part of his plan to treat the whole domain of the normative divisions of social life. The present work was a fragment thrown off in the development of the “Zweck.”

Of Jhering’s achievement the “Geist” will no doubt be permanently regarded as his greatest effort.^[12] When it began to be published, Rudorff, a civilian of the Historical School, referred to it in terms of reproach in his “History of Roman Law” (1857-59); but this reflection was one of the last feeble groans of an expiring and superseded theory of law. How frequently a fond parent is unable to judge impartially and justly of his own children is shown in the history of literature. Jhering rated his “Zweck” far above his “Geist,” and could he have realized that the judgment of posterity would be otherwise, it would no doubt have been for him a matter of keen disappointment even though his preface to the “Zweck” foreshadows the result.

Jhering’s creative period may be divided conveniently into two parts, taking his fiftieth year as the point of separation. The works of the earlier period are distinctly to be preferred against the labors of his later years. Although there seems to have been no abatement of his dynamic force in the growth of years, there is apparent a gradual declination in the sound value of their fruits. His posthumous writings are decidedly in contrast, and to their disadvantage, with the studies of his earlier years.^[13] He rose up out of a national law to an universal law, but as his ideas became more general they also at the last became more tenuous. As a realist confining himself to facts which he apprehended with the intuition of genius, and dealing with “practica” he was incomparable; but when he attempted the flight into an alien country he left behind him the substantial products of a vigorous and fertile intellect to enter a domain as empty as the “Begriffshimmel” created by him for the Romanists.

Jhering’s claim to great distinction may be said to rest, in summary, on the following grounds:

1. He universalized Roman law, approving at once its reception, and the changes which had been made in it in the middle ages, and thus took a middle ground which compromised in effect the rigid nationalism of the Historical School and the patriotic clamors of the Germanists. The Romanists would have imposed upon the country the Byzantine law, while the Germanists would have destroyed it root and branch. Jhering’s attitude in this controversy is shown by the fact that jointly with Gerber, a Germanist, he founded (1856) a journal for the study of the dogmatic of modern Roman and German private law. This conflict between the law of a foreign and extinct empire and the living domestic customs was a heritage of centuries; and while the perpetual struggle had somewhat abated, credit is due to Jhering for throwing the weight of his influence in the direction of the only practical and possible solution of Germany’s effort to attain a unified system of law.

2. He is the founder of modern legal realism, and the progenitor on the juristic side, as Comte is the ancestor on the philosophical side, of the Sociological School of Jurisprudence.

Jhering was a bitter (if not always consistent) enemy of the subjective; this appears when he opposes, in his great work on possession, Savigny’s animus theory;^[14] in his conception of rights when he rejects the will as the central factor; in legal method, when he sets up a jurisprudence of facts against a jurisprudence of concepts. The cultivation of Roman law had developed into a deductive process of legal reasoning which sought to make the realities of later centuries and altered circumstances of elapsed time fit arbitrarily the verbal form of ideas of the age of Paulus.^[15] But yet Jhering was not the enemy of the subjective in his treatment of legal evolution since this evolution itself is the expression of purpose. Law is not only teleological but psychological. The psychology of legal institutions, however, must have a factual basis, and can not be confined, he insists, to a purely conceptual and unhistorical system of ideas governed by fixed logical constructions.

It can hardly be claimed that Jhering was the first to raise the enduring problem of legal method, but never before or since has the purely conceptual method been assailed with greater vigor or efficacy. Jhering’s chief merit here lies in his having brought this question into clear relief and in having advanced the teleological factor which resides in all legal rules. Neither the “Geist” nor the “Zweck” contains a minute and thoroughgoing analysis of the problem of legal logic, and the “Scherz” was much too literary in quality to furnish a solution. Jhering combated the over-extension of the conceptual process, but the ardor of satirical attack did not permit him to examine to find the boundaries of its necessary and justifiable operation. Nor does an inspection of the later literature of legal method disclose, in German literature at least, except in a few noteworthy instances, that the weapons of offense have been melted down to implements of husbandry.^[16]

3. Lastly (passing over Jhering’s unquestioned prominence as an historian of the Roman law, his authority on various special questions of dogmatic law, and his strictly professorial labors), Jhering’s great claim to distinction is due, as already suggested, to his treatment of the nature of legal rights by which he established the juristic basis for a social reconstruction of legal institutions. His own interpretation of the test of legislative policy — social utility — may be rejected as amorphous, as a “mollusk of ideas,” without derogating from the value and great practical importance of his original discovery. Unless it must be said that the world moves on regardless of the thoughts of legal scientists and legal philosophers, it is inconceivable that civilized States could have broken the barriers of the eighteenth century without the lever of Jhering’s idea. Little imagination is needed to portray a horrible distortion of social life under the pressure of learning and invention of the last hundred years, operating within the rigid mould of a “laissez faire” theory of law, government, and economics. On this count, and without reference to whatever else he achieved or conceived, Jhering is deservedly entitled to a leading place among the world’s creative jurists.

Of the present work, it may perhaps with considerable justice still be said as was claimed by a competent reviewer on the appearance of the first edition of this translation,^[17] that it is “the most brilliant, original, and significant book on the genesis and development of law since Montesquieu”; but it may be asserted with less provocation to challenge that it is one of the most famous specimens of juristic writing that the world has ever seen. The introducer may, however, be permitted to venture two brief comments: (1) a moral duty in the assertion of rights is an undemonstrable proposition;^[18] and (2) irritation arising from an infringement of one’s rights may sometimes be more effectively manifested than by procedural methods.^[19]

Albert Kocourek⁠

Northwestern University.

Notes

1. Professor of Jurisprudence in Northwestern University.
2. For a full account of the development of German law, see “A General Survey of (etc.) Continental Legal History” (“Continental Legal History Series,” Vol. i), Boston, 1912, p. 311 seq.
3. The following sketches treat the life, character, and works of Jhering more completely than can be here attempted: M. de Jonge, “Rud. von Jhering” (1888); A. Merkel, “Rud. von Jhering” (1893) (translated as an appendix to Jhering, “Law as a Means to an End”) (“Modern Legal Philosophy Series,” Vol. v); Eck, “Zur Feier des gedächtnisses von B. Windscheid und R. v. Jhering” (1893); Munroe Smith, “Four German Jurists,” Pol. Sc. Q., Vols. x, xi, xii. Reference may also be made to volume ii, in the “Continental Legal History Series,” under the title “Great Jurists of the World from Papinian to von Jhering.”
4. Munroe Smith, “Four German Jurists,” Pol. Sc. Q., xi, 301. Prof. Smith heard Jhering lecture on Roman law, and his able essay therefore sounds an intimate note which adds to the value of his analysis. This study also shows the dominating importance of Jhering, and Prof. Smith’s essay might well have been entitled “Jhering and Three other German Jurists,” for the others are only as foils in the play.
5. Tanon, “L’Evolution du Droit et la Conscience Sociale” (3d ed., Paris, 1911), p. 44 seq. This part of Judge Tanon’s essay has been translated as an appendix to Jhering, “Law as a Means,” etc. (see note p. ix, supra); Alessandro Levi, “Contributi ad una Teoria filosofica dell’ ordine giuridico,” Sec. 34, p. 402 seq.
6. Op. cit. (p. ix note 1, supra).
7. Gareis, “Introduction to the Science of Law” (“Modern Legal Philosophy Series,” i), p. 33.
8. “Recht ist eine von der Rechtsordnung verliehene Willensmacht oder Willensherrschaft,”—Windscheid, “Lehrbuch des Pandektenrechts,” 9th ed. (Kipp), 1906, erster Band, p. 156 (and note 3).
9. Roscoe Pound, “The Scope and Purpose of Sociological Jurisprudence,” Harvard Law Rev., xxv, 2, 143; Korkunov, “Theory of Law” (Hasting’s tr.) (“Modern Leg. Phil. Ser.,” iv), p. 107 seq.
10. Kohler, “Shakespeare vor dem Forum der Jurisprudenz,” (Würzburg, 1883), and “Nachwort” (1884).
11. Jhering has been fortunate above all his jurist contemporaries in a wide and important extension of his writings into foreign tongues. The “Geist” (No. (3) ), and several of his other works have been translated into French; there has also been an Italian translation of the “Geist,” and further translations based on the French, into Portuguese, Spanish, and Japanese. Although no European jurist is better known in America or England than Jhering, there has unfortunately been no English translation of this work, parts of which are of great importance for what Austin calls “general,” and what Salmond styles “theoretical” jurisprudence. The “Jurisprudenz” (No. (6) ) according to the author’s preface to the eighth edition (1891) had been then already translated into Italian, Hungarian, Greek, and (in abridged form) into Portuguese. An English translation has been done by Henry Goudy (Oxford, 1904). This work is considerably used by teachers to good advantage; the present writer has found it useful in examinations in analytical jurisprudence. Jhering’s keen sense of legal realities is here shown developed to the highest degree. No one but a man thoroughly saturated with the feeling of the omnipresence of the law and legal relations would think of raising the question whether a guest at a hotel can take away the candles with which he has been charged, or whether he can put into his pocket fruit served at the dinner table (Goudy’s translation, p. 24). Dr. Wigmore, dean of Northwestern University School of Law, perhaps, under the suggestion of this notable use of the incidents of everyday life, has published in his casebook on torts a collection of instances very similar in their novelty, interest, and analytical value. The “Zweck” (No. (8) ) has been translated into French and the first volume is soon to be issued [now out] in an English translation of Dr. Isaac Husik of the University of Pennsylvania (“Modern Legal Philosophy Series,” Vol. v), by The Boston Book Company. This translated volume will contain valuable introductory material which the present writer regrettably was not able to consult. Legal humor is an ancient institution; it is the agency which humanizes the bloodless operations of the legal machine. Even the Olympian gods indulged their levities, and did not narrow themselves to councils of lightnings and thunderbolts. Juristic humor, however, is something quite unknown in our literature. The nearest approach, to take a recent example, is Sir Frederick Pollock’s “Genius of the Common Law,” a work dealing with the strains and thrusts of our legal system. The chapter entitled “Surrebutter Castle” shows what a lighter touch may do with such a recondite and bitter subject as special pleading. But Sir Frederick’s humor in comparison with von Jhering’s is always somewhat Saturnine, or, even from another point of view, Euclidean. Jhering’s contribution to this form of writing is his “Scherz und Ernst” (No. (12) ) which is made up of anonymous articles published while he was at Giessen, and “Talks of a Civilian” published at Vienna. The vehicle is one of amiability, but the theme is a serious one for the law. It may be considered a loss to us that this work is not in English, since the problems raised there are just now of special interest in view of the widespread changes which are giving an entirely new character to the whole face of the Common Law. Of the remaining works the “Vorgeschichte” (14) has also been translated into English. This work has not added anything to Jhering’s fame, and it may be questioned whether he had sufficiently familiarized himself with the extensive range of working materials upon which such an ambitious undertaking should of necessity be founded. This work therefore in the field of universal history is defective for the same reason as the “Zweck” in the department of general philosophy, in that it attempted problems beyond the author’s special knowledge and experience.
12. But cf. Berolzheimer, “The World’s Legal Philosophies” (Mrs. Jastrow’s tr.) (“Mod. Leg. Phil. Ser.,” ii), p. 337 seq.
13. See. Posener, “Rechtslexikon,” i, s. v. “Jhering.”
14. Munroe Smith, op. cit.; Salmond, “Jurisprudence,” 3d ed., p. 263 seq.; Holland, “Elements of Jurisprudence” (11th ed.), p. 196 seq.
15. Sternberg, “Allgemeine Rechtslehre,” erster Teil, p. 191 seq.
16. See in this connection, Gnaeus Flavius (Kantorowicz), “Der Kampf um die Rechtswissenschaft” (1906), and the authorities entered on p. 50. The realistic trend of thought which had its origin in Jhering’s war on the concept jurisprudence is now known in Germany under the name of “freie Rechtsfindung” after Ehrlich’s book of that title. Strangely enough, this tendency in legal method has attracted representatives from the most diverse positions in legal philosophy.
17. Albany Law Journal, xx, 444 (1879).
18. There need no ghost from the grave come to tell us that Jhering’s proposition of a duty to maintain one’s rights before the law has certain affinities with the doctrine that it is the right and the duty of States to make war. The same biological arguments support both points of view. Such militant programs to be thoroughly consistent must regard as undesirable all agencies which substitute for the wounds and destruction of the combat. In the struggle for rights, even the State itself, from this standpoint, must be considered a biological obstruction. Those who assert the moral right and necessity of nations to make war to serve their interests, do not hesitate to say that “law is the weakling’s game.” Jhering as a lawyer probably could not have accepted a principle so far-reaching and revolutionary, even at the risk of being inconsistent for his hesitation. Yet the only state of society wherein his ethical duty of self-assertion could be imagined to have any validity is one of political non-interference. In the primitive days of private vengeance such a theory probably would need no qualifications; but as soon as the State ceased to be a mere military machine, and found it expedient to interfere in private quarrels in the interests of peace, the biological argument became less clear and the moral aspect of the question more doubtful. For the ritualistic trial ceremonies of early law were not the same as the blood feud either biologically or ethically. At any rate, even though the litigant fought his own legal battles, and would not at that day, as a matter of honor, indulge the unmanly ease of a lawyer to speak for him, earthly and supernatural hazards had intervened which sometimes thwarted the bristling demands of courage. And now, in the modern age, when the State seeks to do justice between the parties, the hazards of litigation have become still more complex and fruitful. The modern court is little like the tribal assembly, and one now will hardly seek the law-courts to vindicate his courage or to promote his honor. A sad chapter could be written on the manner in which the State has discouraged the taste for litigation. We have only to think in this connection, among a number of things, of the dishonored position of the witness which has become a factor of no little importance in making a resort to law unpopular, of the sensational press accounts, and of the machine patterned course of litigation. It is unlikely that any device except a simple reversion to primitive justice could bring out the spirit of self-assertion which has departed from the law and sought other channels of expression.
19. Even commercial litigation is seeking an escape from the delays and difficulties of justice. It must be clear, therefore, that the procedural situation offers no advantages to purely ideal reactions against what the author calls subjective injustice. But there is a deeper reason which impels self-assertion to seek either the path of “club-law,” or, more likely, silence. When Jhering composed this address (1872) he could hardly have foreseen the centralization of trade, industry, credit, and population which has within the last decades revolutionized the earth. In ancient society individual rights were submerged in the activities of the group. Personality has never been quite as well protected by the law as the claims of property; but when Jhering wrote, rights of individual persons had already reached their highest point in an evolution of many centuries. If anything can be predicted safely of the future one may, perhaps, say that the individual is again rapidly on the way to the loss of his identity. The modern world with its systems, its efficiencies, and its pragmatisms (and we say it with regret) is crushing down the picturesque freedom and initiative of the individual. It will require another era to restore him to the position to which Jhering would have exalted him.