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Introduction
(1) a moral duty in the assertion of rights is an undemonstrable proposition;[1] and (2) irritation arising from an infringement of one’s
- ↑ 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.
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