The Struggle for Law
duty. Can we wonder that cowardice and the apathetic endurance of injustice were the character of our national history at a time when science dared to enunciate such doctrines? Let us congratulate ourselves that we live in very different times. Such theories are impossible in our days. They can thrive only in the swamp through which a nation, rotten alike from a political point of view and from the point of view of law, drags itself along.
This theory of cowardice, of the obligation of sacrificing our imperiled rights, is the most direct opposite of the theory which I have advocated, that the courageous battle for one’s legal rights is a strict duty. Not quite so far, yet far enough below the height of this healthy feeling of legal right, lies the level of the view of a modern philosopher, Herbart, as to the ultimate basis of the law. Herbart sees the basis of all law in an aesthetic motive—we can call it nothing else; the dislike of contention. This is not the place to show the complete untenableness of this view, and I am happy to be able to refer to the
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