The Struggle for Law/Chapter III

by Rudolf von Jhering

Layout 2

CHAPTER III

THE STRUGGLE FOR HIS RIGHTS A DUTY OF
THE PERSON WHOSE RIGHTS HAVE BEEN
VIOLATED, TO HIMSELF

HE struggle for his right is a duty of the person whose rights have been violated, to himself.

The preservation of existence is the highest law of the whole living creation. It manifests itself in every creature in the instinct of self-preservation. Now man is not concerned only with his physical life but with his moral existence. But the condition of this moral existence is right, in the law. In the law, man possesses and defends the moral condition of his existence—without law he sinks to the level of the beast,^[1] just as the Romans very logically, from the standpoint of abstract law, placed slaves on a level with beasts. The assertion of one’s legal rights is, therefore, a duty of moral self-preservation—the total surrender of those rights, now impossible, but once possible, is moral suicide. But the law is only the aggregate of its separate parts, each of which embodies a peculiar moral condition of existence: property as well as marriage, contracts as well as reputation. A renunciation of one of them is, therefore, legally just as impossible as the renunciation of the entire law. But it certainly is possible that a person should attack one of these conditions; and it is the duty of the person attacked to repel the attack: for it is not sufficient to place these conditions of existence under the protection of law, represented by mere abstract principles; they must be asserted in the concrete by the individual; and the incentive to this assertion of them is furnished when one arbitrarily dares to attack them.

But not all legal wrong is arbitrariness, that is a revolt against the idea of law. The possessor of my chattel who thinks he owns it does not assail my person in denying the idea of property; rather does he appeal to it in his own interest. The question between us turns on this—which of us is the owner? But the thief and the robber place themselves outside the legal domain of property. In my property they deny both the idea of property, and, at the same time, an essential condition of the existence of my person. If we suppose their mode of action to become general, to become a maxim of the law, property is denied both in theory and in practice. Hence their act embodies an attack, not only on my chattel, but at the same time on my person; and if it be my duty to defend my person, it is my duty here also; and nothing but the conflict of this duty with the higher duty of the preservation of my life, as happens when the robber puts before me the alternative of my money or my life, can justify the abandonment of my property. But leaving this case out of consideration, it is my duty to oppose this disregard of law in my person with all the means at my command. By tolerating that disregard of law, I consent to support injustice for a single moment in my life. But to do this, no one should lend a hand.

Towards the bonâ fide possessor of my chattel, I stand in a very different situation. Here the question is what I have to do. It is not a question of my feeling of legal right, of my character, of my personality, but a pure question of interest; for I have nothing here at stake but the value of my chattel, and here, therefore, I am entirely warranted in weighing the gain and stake, and the possibility of a doubtful issue, one against the other, and to come to a decision accordingly: to sue, abstain from suing, or arbitrate.^[2] Arbitration or settlement is the point of meeting of such a calculation of probabilities, made by each side, and, with the premises which I here suppose, it is the best means of closing the controversy. But if a settlement is often so difficult to effect; if, as not infrequently happens, both parties from the first decline all negotiations tending to a settlement, the reason is not simply that the calculations of probabilities by the two parties diverge too much from each other to be able to meet, but because each of the parties to the controversy supposes the other to be consciously wrong, moved by an evil intent. Thus the question assumes, even when agitated from the standpoint of a suit at law, under the form of an objective injustice (reivindicatio), psychologically, for the party, the very same shape as in the case above—the shape of a conscious violation of one’s right or of law; and the stubbornness with which the individual here defends his rights is based precisely on the same reasons, and is as morally justifiable, as when he defends them against the robber. To wish, in such a case, to deter the party from defending his right, in a suit at law, by pointing out to him the expense and other consequences of the same nature attending it—the uncertainty of the issue, for instance—is a psychological blunder; for the question is, to such a party, not a question of interest, but of his sentiment of justice or of right. The only hope we can cherish here is to cause the supposition of an evil intention to disappear, which caused the party to act; and this done, resistance is overcome; the party may be induced to look at the question in the light of interest, and a settlement or compromise become possible. What stubborn resistance the prepossession and prejudice of the party frequently oppose to all such attempts is only too well known to every practical jurist; and I believe that I shall meet with no contradiction from that quarter when I assert that this inaccessibleness to minds, this tenacious distrust, is a thing not purely individual, determined by the accidental character of the person, but that it is decided by the general differences of education and calling. This distrust is most insurmountable in the case of the peasant. The litigiousness of which he is accused is nothing but the product of two factors especially peculiar to him—a strong sense of property, not to say avarice, and mistrust. No one so well understands his interests, and holds as firmly to what he has, as the peasant; and yet no one so readily sacrifices his fortune to a suit at law. This is apparently a contradiction; but, in reality, it is entirely explainable. Precisely his largely developed sense of property makes an injury to his property all the more sensitively felt, and the reaction, therefore, all the more violent. The litigiousness of the peasant is nothing but the aberration of the sense of property, produced by mistrust, an aberration which, like the analogous phenomenon in love, jealousy, aims its dart at itself, inasmuch as it destroys what it seeks to save.

The old Roman law affords an interesting confirmation of what I have just now said. This mistrust of the peasant, which, in every conflict of law, supposes an evil intention in one’s opponent, finds expression in that law in the form of legal principles. Everywhere, even where there is question of a conflict of law in which each of the contending parties may be in good faith, the defeated party has to pay a penalty for his resistance. The simple restoration to a person of his rights is no satisfaction to the outraged feeling of right. The defeated party, whether innocent or guilty, had to make satisfaction for having opposed the law.^[3] If our peasants to-day had the making of the law, it would, we may conjecture, be very like that of their old Roman predecessors. But even in Rome, this mistrust in law was in principle overcome by civilization, inasmuch as two sorts of injustice were distinguished, the guilty and the innocent, or the subjective and objective (in the language of Hegel, the ingenuous wrong).

This distinction between objective and subjective injustice is, from a legislative and scientific point of view, a very important one. It expresses the manner in which the law looks upon the matter, and it justifies the consequences which the violation of law draws after it. But it does not at all decide how the individual shall look upon it; how his feeling of legal right will be excited by an injustice done him, a feeling which does not pulsate in accordance with the abstract notions of the system. The circumstances of the case may be such that the person whose rights have been violated may have every reason, in a conflict about rights, which, according to the law, falls under the head of an objective violation of law, to proceed on the assumption of an evil intent, of conscious injustice on the part of his opponent; and this judgment of his, will rightly decide what his course towards his opponent should be. The fact that the law gives me the very same condictio ex mutuo against the heir of my debtor who knows nothing of the debt, and makes the payment of it dependent on the proof, as against the debtor himself, who shamelessly denies the loan made him, or refuses to pay it without reason, cannot keep me from looking at the mode of action of the two in an entirely different light, and to frame my own action accordingly. The debtor himself is to me on the same footing as the thief. He knowingly tries to deprive me of what is mine. It is the rising up of caprice against law, only it is in a situation to clothe itself in a legal garb. The heir of the debtor, on the other hand, is like the bonâ fide possessor of what belongs to me. He does not deny the principle that the debtor must pay, but only the assertion that he is a debtor himself, and all that I have said above of the bonâ fide possessor applies to him. With him I may settle or compromise. I may, in his case, desist entirely from the institution of a suit; but, as against the debtor, I should and I must follow up my right, cost what it may. Not to do this would be to admit the debtor to be right,—nay, more, to abandon the right.

I suppose that it will be objected to what I have thus far said: what do the people know of the right of property, of contract as a moral condition of the existence of the person? Know? They may know nothing about it, but whether they do not feel it is another question; and I hope that I shall be able to show that such is the case. What do the people know of the kidneys, lungs, liver, as conditions of their physical life? But every one feels the stitch in the lungs, or a pain in the kidneys or liver, and understands the warning which it conveys to him. Physical pain is the signal of a disturbance in the organism, of the presence of an influence inimical to it. It opens our eyes to an impending danger, and compels us, by the pain which it causes, to oppose it in time. The very same is true of the moral pain caused us by intentional injustice, by arbitrariness. Varying in intensity, just like the physical, according to the difference of subjective sensitiveness, of the form and object of the injustice (on which more anon), it manifests itself also in every individual not entirely blunted to it, i.e., in every individual who has not grown accustomed to positive lawlessness, as moral pain, and thus summons him to fight against the cause which produces it—not so much to put an end to the feeling of pain as to preserve the health, which is threatened by the inactive bearing of it. It is a reminder of the duty of moral self-preservation, such as physical pain is in respect to physical self-preservation.

Let us take the most undoubted case, an attack on one’s honor, and the profession in which it is most sensitively developed—the military profession. An officer who has patiently borne an insult which involves his honor is no longer an officer. Why? The vindication of his honor is every man’s duty. Why then does the military gentleman attach more importance than any other to the fulfillment of this duty? Because he has the right feeling, that the courageous vindication of one’s personality is, for him, more, perhaps, than for a person of any other class, an indispensable condition of his order, which, in its very nature, should be the incorporation of personal courage, and which cannot endure the cowardice of its members without sacrificing itself. With the officer, let us now compare the peasant, who defends his property with the greatest stubbornness, but evinces a surprising indifference as to his honor. Why? Because he, too, has a correct feeling of the peculiar conditions of his existence. He is not called upon to give proof of his courage, but to work. His property is only the visible form which his labor in the past has taken. The lazy peasant, who takes no care of his land or who dissipates his little fortune, is as much despised by other peasants as is the officer who lightly values his honor, by his colleagues. But one peasant will never reproach another because he has not fought a duel, or instituted a suit to avenge an insult; nor one officer another, because he has mismanaged his property. The piece of land which he tills, the cattle which he raises, are to the peasant the basis of his entire existence; and the angry lawsuit which he institutes against the neighbor who has deprived him of a few feet of land, or against the trader who refuses to pay him for the oxen which he has sold him, is only his way of doing what the officer does with his sword—of battling for his rights. Both sacrifice themselves without reserve. They leave the consequences of their action entirely out of consideration. And this they must do, for, in doing it, they are only obeying the peculiar law of their moral self-preservation. Put them in the jury-box—submit to a jury of officers the case of an injury to property, and to a jury of peasants a question of honor—and see how different their verdicts! It is well known that there are no severer judges, in the matter of injuries to property, than the peasantry. And although I cannot here speak from experience, I have no manner of doubt that if a peasant were to bring an action for damages for assault and battery, for instance, it would be found much easier to induce him to arbitrate than if his action were for an injury to property. The old Roman peasant was satisfied with twenty-five as for a slap on the face; and when a person put out one of his eyes, he was willing to talk the matter over and to arbitrate, instead of putting out one of his opponent’s eyes, as he was authorized to do. But he demanded that the law should empower him to hold the thief caught in the act, as a slave, and, in case of resistance, to slay him; and the law permitted him to do so. In the former case, only his honor, his body, was at stake; in the latter, his property.

As a third illustration, let us take the case of the merchant. His credit is to him what honor is to the officer, and property to the peasant. The maintenance of his credit is, for him, a vital question; and the man who charges him with negligence in meeting his obligations deals him a heavier blow than the one who attacks his person or robs him. It is in keeping with this peculiar position of the merchant that recent laws tend more and more to restrict the crime of negligent and fraudulent bankruptcy, to him and others like him.

By what I have just said I have not intended simply to show that the irritability of the feeling of legal right varies according to class and calling, inasmuch as that feeling measures the wounding character of the injury in accordance with the interest which the class, as a class, has not to endure it. The proof of this fact serves only to place in its true light the truth of a much higher order, that every man possessed of a legal right defends the moral conditions of his existence when he defends his legal right. For the fact that the feeling of legal right shows itself most irritable, in the case of the three classes named, in the points in which we have recognized the conditions of existence of these classes peculiarly to reside, proves that the reaction of the feeling of legal right is not like that of feelings generally, determined only by the temperament and character of the individual, but that it is determined likewise by a social cause; viz., the feeling of the indispensableness of this very branch of the law to the vital end of the particular class. The degree of energy with which the feeling of legal right reacts against an infringement of legal right is, in my eyes, a sure measure of the importance which individuals, a class or people, really attach, both to the law in general and to a special branch of it, for themselves and their special aim in life. This principle I hold to be universally true, true in the case of public as well as of private law. The same irritability which the different classes manifest in respect to a violation of all those legal provisions which, in a special manner, constitute the basis of their existence, we find also in the case of states, in respect to those institutions in which the peculiar principle of their life seems realized. The measure of their irritability, and of the value which they attach to these heads of the law, is found in the criminal law. The surprising difference which prevails in criminal law (Strafrecht—penal justice), in respect to severity and mildness, is accounted for, in great part, by the principle mentioned above, of the conditions of existence. Every state punishes those crimes most severely which threaten its own peculiar condition of existence, while it allows a moderation to prevail in regard to other crimes which, not infrequently, presents a very striking contrast to its severity as against the former. A theocracy brands blasphemy and idolatry as crimes deserving of death, while it looks upon a boundary violation as a simple misdemeanor. (Mosaic law.) The agricultural state, on the other hand, visits the latter with the severest punishment, while it lets the blasphemer go with the lightest punishment. (Old Roman law.) The commercial state punishes most severely the uttering of false coin, the military state insubordination and breach of official duty, the absolute state high treason, the republic the striving after regal power; and they all manifest a severity in these points which contrasts greatly with the manner in which they punish other crimes. In short, the reaction of the feeling of legal right, both of states and individuals, is most violent when they feel themselves threatened in the conditions of existence peculiar to them.^[4]

Just as the peculiar conditions of a class or calling invest certain heads of the law with an enhanced importance, and thus enhance the sensitiveness of the feelings of legal right in respect to a violation of them, these same conditions may also produce a weakening of that sentiment. The servant-class cannot maintain and develop the feeling of honor among themselves as do the other strata of society. Their position brings with it certain humiliations, against which a single servant revolts in vain, so long as the class itself endures them. An individual with a sensitive feeling of honor, in such a situation, has no alternative but to lower his claims to the level of those of his like or to give up the calling. Only when such a way of feeling becomes general is there any prospect for the individual, instead of wasting his strength in a useless struggle, to turn it to account, in union with those who think as he does, to raise the level of the honor of his class; and I mean here, not simply the subjective feeling of honor, but its objective recognition by the other classes of society and by legislation. The history of the social development of the last fifty years shows immense progress in this direction. What I have just said might have been applied half a century ago to most classes. The enhanced feeling of honor to be found in them is only the result and the expression of the legal position which they have secured.

What I have said above of honor is true also of property. The sensitiveness of the feeling of legal right in relation to property, the real sense of property—I mean here not the instinct of acquisition, the hunting after money and wealth, but the manly feeling of the owner, as the model representative of whom I have chosen the peasant, of the owner who defends what belongs to him, not because it is an object of value, but because it belongs to him—this feeling, this sense of property, also may become enfeebled under the unhealthy influence of causes and circumstances. What, we hear a great many ask, has the thing which belongs to me, to do with my person, with me? It serves me as a means of subsistence, of acquisition, of enjoyment; but as there is no moral duty incumbent on me to amass a great deal of money, there can be no duty incumbent on me to go to law for a mere trifle, at a great expenditure of time and money, and at the sacrifice of my rest. The only motive which urges me to go to law to assert my right to my property is the motive which determines me to acquire it, and which determines the disposition I shall make of it—my interest. Whether I shall go to law to assert my right to my property, or not, is simply a question of interest.

For my part, in such a view, I can see only a degeneration of the true sense of property, the reason of which seems to me to be a displacement, an ignoring, of its natural basis. I do not hold wealth and luxury responsible for this degeneration—in neither of them do I discover any danger to the feeling of legal right of the people—but the love of gain grown immoral. The historical source and ethical justification of property is labor—the labor not of the hand or arm alone, but of the mind and of talent; and I acknowledge the right, not only of the workman himself to the product of his labor, but of his heir also; that is, I discover in the right of inheritance a necessary consequence of the principle of labor; for I maintain that the laborer should not be prevented denying himself the enjoyment of his property and leaving it to another, whether during his lifetime or after his death. Only through a lasting connection with labor can property maintain itself fresh and healthy. Only at this source is it seen, clearly and transparently, to the very bottom, to be what it is to man. The further the stream is removed from this, its source, and winds into the devious direction of easy and toilless gain, the more turbid do its waters become, until, in the slime of speculation on ’Change and of fraudulent stock-jobbing, it loses every trace of what it was in its origin. At that point every vestige of the moral idea of property has departed, and there can be no longer question of the moral duty of defending it. Here there can no longer be any understanding of the meaning of property as it exists in the breast of the man who has to earn his bread in the sweat of his brow. The worst of all is, that the opinions and habits generated by such causes unfortunately gradually extend to circles in which they would not have appeared spontaneously without contagious contact.^[5] The influence of the millions won by stock-jobbing extends even to the poor man’s hut; and the same person who, in another environment, would have tasted, in his own experience, the blessings of labor, feels that same labor, under the enervating pressure of such an atmosphere, a curse, and only a curse. Communism thrives only in those quagmires in which the true idea of property is lost. At the source of the stream it is not to be found. We may verify in the country, in a directly opposite sense, this fact of experience: that the manner in which the ruling classes look at property is not confined to the latter, but that it is communicated to the other classes of society. The person permanently living in the country, who does not keep entirely aloof from the peasantry, will involuntarily, and even when not urged thereto by his circumstances or his own peculiar character, take up something of the peasant’s frugality and sense of property. The same average man, under otherwise entirely similar circumstances, will be economical with the peasant in the country, and a spendthrift with the millionaire in a city like Vienna.

But whatever may be the cause of that weakness of character which the love of ease induces to evade the struggle for legal right, all we have to do here is to recognize it and to describe it as it is. What is the practical philosophy of life which it preaches but the policy of the coward? The coward who flees the battle saves what others sacrifice—his life; but he saves it at the cost of his honor. Only the fact that others make a stand protects him and the community from the consequences which his mode of action would otherwise inevitably draw after it. If all thought as he, they would all be lost. And precisely the same is true of the cowardly abandonment of one’s legal rights. Innocent as the act of an individual, it would, if raised to the dignity of a general principle of action, be the destruction of the entire law. And even under these circumstances, the apparent absence of danger in such a mode of action is possible only because the struggle of law against wrong is, on the whole, not affected by it any further. For, indeed, it is not individuals alone who are called upon to take part in this struggle, but, in organized states, the state-power also takes a very large part in it, inasmuch as it prosecutes and punishes all serious attacks on the life, liberty or property of the individual, of its own motion, thus relieving him of the hardest part of the work. But even in respect to those violations of law, the prosecution of which is left entirely to the individual, care is taken that the struggle may not be interrupted; for every one does not follow the policy of the coward, and even the latter takes his place in the line of combatants, at least when the value of the object in controversy outweighs his ease. But let us suppose a state of things in which the protection afforded by the police power and by the criminal law is wanting; let us transfer ourselves to a time when, as in ancient Rome, the pursuit of the thief and the robber was the affair only of the person injured, and who does not see to what such an abandonment of one’s legal rights would have led? To what would it have conduced but to the encouragement of thieves and robbers? The very same thing is true of the life of nations. Here each nation is thrown entirely on its own resources. No higher power relieves it of the necessity of asserting its rights, and I need only recall the example given above of the square mile, to show what that view of life which would measure the resistance to wrong according to the material value of the object in controversy, means to the life of nations. But a principle which, wherever tested, proves itself completely unthinkable, the dissolution and destruction of the law, cannot, even where, by way of exception, its fatal consequences are paralyzed by other circumstances, be called correct. I shall have occasion to show later what a disastrous influence such a principle exerts, even under such relatively favorable circumstances.

Let us, therefore, reject this morality of convenience and ease, which no nation and no individual, with a healthy feeling of legal right, has ever adopted. It is the sign and the product of a diseased feeling of legal right; it is coarse and naked materialism, in the domain of law. Even materialism has, within certain limits, its raison d’être in this domain. To profit by one’s legal rights, to make use of them and to assert them when there is question of a purely objective wrong, is only a question of interest; and a legal right according to the definition which I have given of it myself,^[6] is nothing but an interest protected by the law. But in the presence of arbitrariness which lifts its hand against the law, this material consideration loses all value, for the blow which it aims at my legal right, strikes my person also when it strikes the law.

It is a matter of indifference what the object of the right is. If mere chance were to put me in possession of an object, I might be deprived of it without any injury to my person, but it is not chance, but my will, which establishes a bond between myself and it, and even my will only at the price of the past labor of myself or of another;—it is a part of my own strength and of my own past, or of the strength and past of another, which I possess and assert in it. In making it my own, I stamped it with the mark of my own person; whoever attacks it, attacks me; the blow dealt it strikes me, for I am present in it. Property is but the periphery of my person extended to things.

This connection of the law with the person invests all rights, no matter what their nature, with that incommensurable value which, in opposition to their purely material value, I call ideal value. From it springs that devotedness and energy in the assertion of legal right which I have described above. This ideal conception of the law is not a privilege of characters highly endowed by nature; but it is as accessible to the coarsest as to the most cultured, to the richest as to the poorest, to savage and to civilized nations; and, just here, we discover so clearly how firmly rooted in the innermost nature of the law this idealism is—it is nothing but the healthfulness of the feeling of legal right. The law which, on the one hand, seems to relegate man exclusively to the low region of egotism and interest, lifts him, on the other hand, to an ideal height, in which he forgets all policy, all calculation, that measure of interest which he had learned to apply everywhere, in order to sacrifice himself purely and simply in the defense of an idea. Law which, in the former region, is prose, becomes, in the struggle for law, poetry in the latter; for the struggle for law, the battle for one’s legal rights, is the poetry of character.

What is it, then, that works this wonder? Not knowledge, not education, but simply the feeling of pain. Pain is the cry of distress, the call for help of imperiled nature. This is true, as I have already remarked, both of the moral and the physical organism; and what the pathology of the human organism is to the physician, the pathology of the feeling of legal right is to the jurist and the philosopher in the sphere of law; or, rather, it is what it should be to them, for it would be wrong to say that it is such to them already. In it, in truth, lies the whole secret of the law. The pain which a person experiences when his legal rights are violated is the spontaneous, instinctive admission, wrung from him by force, of what the law is to him as an individual, in the first place, and then of what it is to human society. In this one moment, and in the form of an emotion, of direct feeling, we see more of the real meaning and nature of the law than during long years of undisturbed enjoyment. The man who has not experienced this pain himself, or observed it in others, knows nothing of what law is, even if he had committed the whole corpus juris to memory. Not the intellect, but the feeling, is able to answer this question; and hence language has rightly designated the psychological source of all law as the feeling of legal right (Rechtsgefühl). The consciousness of legal right (Rechtsbewusstsein), legal conviction, are scientific abstractions with which the people are not acquainted. The power of the law lies in feeling, just as does the power of love; and the intellect cannot supply that feeling when it is wanting. But as love frequently does not know itself, and as a single instant suffices to bring it to a full consciousness of itself, so the feeling of legal right uniformly knows not what it is, and what it can do, so long as it is not wounded; but the violation of legal right compels it to speak, unveils the truth, and manifests its force. I have already said in what this truth consists. His legal right, the law, is the moral condition of existence of the person; the assertion of that right is his moral self-preservation.

The force with which the feeling of legal right reacts, when wounded, is the test of its health. The degree of pain which it experiences tells it what value it attaches to the imperiled goods. But to experience the pain without taking to heart its warning to ward off the impending danger, to bear it patiently and take no measure of defense, is a denial of the feeling of legal right, excusable, perhaps, under certain circumstances, in a particular case, but impossible in the long run without the most disastrous consequences to the feeling of legal right itself. For the essence of that feeling is action. Where it does not act, it languishes and becomes blunted, until finally it grows almost insensible to pain. Irritability, that is the capacity to feel pain at the violation of one’s legal rights, and action, that is the courage and the determination to repel the attack, are, in my eyes, the two criteria of a healthy feeling of legal right.

I must refrain from elaborating any further this interesting and instructive subject of the pathology of the feeling of legal right; but I would, however, ask permission to make a few remarks just here.

The sensitiveness of the feeling of legal right, otherwise the sentiment of law, is not the same in all individuals, but it increases and decreases according as, and to the extent that, each individual class or people experiences the law as a moral condition of existence; and not the law in general only, but its several parts. This I have shown above, in reference to property and reputation. As a third example, I may here add, marriage. What reflections does not the manner in which different individuals, nations, codes of law, look at adultery, suggest!

The second element in the feeling of legal right, action, is a mere matter of character: the attitude which an individual or a nation assumes towards an attempt on its rights is the surest test of its character. If by character we understand personality, full, self-reliant and self-asserting, there can be no better opportunity to test this quality than when arbitrariness attacks one’s rights, and, with his rights, his person. The manner in which the wounded feeling of law or of personality reacts, whether under the influence of passion in wild and violent action, or with subdued, persistent resistance, is no measure of the intensity of the strength of the sentiment of legal right; and there can be no greater error than to ascribe to the savage or the uncultured man, with whom the former manner is the normal one, a stronger feeling of legal right, than to the educated man who takes the second course. This manner is more or less a matter of education and temperament; but a firm, tenacious and resolute resistance is in no way inferior to violent and passionate reaction. It would be deplorable if it were otherwise. Were it otherwise, individuals and nations would lose the feeling of legal right in proportion as they advanced in culture. A glance at history and at everyday life is sufficient to show that this is not the case. Nor is the answer to be found in the contrast of rich and poor. Different as is the measure with which the rich man and the poor man measure the value of things, it is not at all applied in the case of a violation of legal right; for here the question is not the material value of a thing, but the ideal value of a legal right, the energy of the feeling of legal right in relation to property; and hence it is not the amount of property, but the strength of the feeling of legal right, which here decides the issue. The best proof of this is afforded by the English people. Their wealth has caused no detriment to their feeling of legal right; and what energy it still possesses, even in pure questions of property, we, on the Continent, have frequently proof enough of, in the typical figure of the traveling Englishman who resists being duped by inn-keepers and hackmen with a manfulness which would induce one to think he was defending the law of Old England—who, in case of need, postpones his departure, remains days in the place and spends ten times the amount he refuses to pay. The people laugh at him, and do not understand him. It were better if they did understand him. For, in the few shillings which the man here defends, Old England lives. At home, in his own country, every one understands him, and no one lightly ventures to overreach him. Place an Austrian of the same social position and the same means in the place of the Englishman—how would he act? If I can trust my own experience in this matter, not one in ten would follow the example of the Englishman. Others shun the disagreeableness of the controversy, the making of a sensation, the possibility of a misunderstanding to which they might expose themselves, a misunderstanding which the Englishman in England need not at all fear, and which he quietly takes into the bargain: that is, they pay. But in the few pieces of silver which the Englishman refuses and which the Austrian pays there lies concealed more than one would think, of England and Austria; there lie concealed centuries of their political development and of their social life.

1. In the novel, Michel Kohlhaas, by Heinrich von Kleist, to which I shall return again, the writer makes his hero say: “Better be a dog, if I am to be trodden under foot, than a man.”
2. The above passage should have guarded me from the supposition that I preached the battle for one’s legal rights without inquiring further concerning motives and circumstances, and that I considered the surrender of a questionable right as entirely unjustifiable. Only where the person is trampled under foot in his rights have I declared the vindication of one’s rights to be a vindication of one’s self, and thus a matter of honor and a social duty. When this difference, on which I have laid so much stress, is overlooked, and the absurd view attributed to me, that wrangling and contention have something of the beautiful in them, and that litigiousness is a virtue, I can find no explanation of the fact, except by assuming an evil intention to set up a view which is not liked in order to refute it, or a negligence in reading which forgets at the end of the book what was read in the beginning.
3. I shall return to this later.
4. The learned know that I have here only turned to account ideas, the merit of having recognized and formulated which belongs to the great Montesquieu, “Esprit des Lois”.
5. An interesting proof of this is furnished by the small German university cities, supported mainly by students. The manner in which these think and act in the matter of spending money is involuntarily communicated to the population.
6. “Geist des römischen Rechts” iii, p. 60.