The Struggle for Law/Chapter V
TO NATIONAL LIFE
But the interest of this struggle is not confined, by any means, to private life or private law. Rather does it extend far beyond them. A nation is, after all, only the sum of all the individuals who compose it, and the nation thinks, feels, and acts as the individuals that make it up think, feel, and act. If the feeling of legal right of the individuals of the nation is blunted, cowardly, apathetic; if it finds no room for a free and vigorous development, because of the hindrances which unjust laws and bad institutions put in its way; if it meets with persecution where it should have met with support and encouragement; if, in consequence of this, it accustoms itself to endure injustice and to look upon it as something which cannot be helped, who will believe that such a slavish, apathetic and paralyzed feeling of legal right can be aroused all at once to life and to energetic reaction, when there is question of a violation of the rights, not of an individual, but of the whole people; an attempt on their political freedom, the breach or overthrow of their constitution, or an attack from a foreign enemy? How can the person who has not been used to defending even his own rights feel the impulse voluntarily to stake his life and property for the community? How can the man who thinks nothing of the ideal damage which he suffers in his person and his honor, inasmuch as he abandons his rights, because he loves his ease; who was accustomed, in legal matters, to employ only the measure of material interest, be expected to employ a different measure and to feel differently when there is question of the right and the honor of the nation? Whence could that idealism of feeling suddenly proceed which had thus far never shown itself? No! The battler for constitutional law and the law of nations is none other than the battler for private law; the same qualities which distinguished him struggling for his rights as an individual accompany him in the battle for political liberty and against the external enemy. What is sowed in private law is reaped in public law and the law of nations. In the valleys of private law, in the very humblest relations of life, must be collected, drop by drop, so to speak, the forces, the moral capital, which the state needs to operate on a large scale, and to attain its end. Private law, not public law, is the real school of the political education of the people, and if we would know how a people, in case of need, will defend their political rights and their place among the nations, let us examine how the separate members of the nation assert their own right in private life. I have already cited the example of the combative Englishman; and I can only repeat here what I said above: In the shilling for which he stubbornly struggles the political development of England lives. No one will dare to wrest from a people who, in the very smallest matters, bravely assert their rights, the highest of their possessions, and it is, therefore, not mere chance that the same people of antiquity who attained to the greatest political development within, and displayed the greatest power externally, the Romans, had at the same time the most fully developed system of private law. Law is idealism—paradoxical as this may seem—not the idealism of the fancy, but of character: that is, of the man who looks upon himself as his own end, and esteems all else lightly when he is attacked in his personality. What matters it to him whence this attack upon his rights proceeds—whether from an individual, from his own government, or from a foreign nation? It is not the person of the aggressor that decides what resistance he shall oppose to the attack, but the energy of his feeling of legal right, the moral force with which he is wont to assert himself. Hence the principle is ever true: the political position of a people, both at home and abroad, is always in keeping with their moral force; the Celestial Empire with its bamboo, the rod for its adult children, and its hundreds of millions of inhabitants, will never attain, in the eyes of foreign nations, the respected position of little Switzerland. The natural disposition of the Swiss in the matter of art and poetry is anything but ideal. It is sober and practical, like that of the Romans. But, in the sense in which I have thus far used the expression “ideal,” in its relation to law, it is just as applicable to the Swiss as to the Englishman.
This idealism of the healthy feeling of legal right would undermine its own foundation if it confined itself to the defense of its own rights only, without taking any part in the maintenance of law and order. It knows not only that in defending its own legal rights it defends the law, but that in defending the law it defends its own legal rights. In a community in which this feeling, this sense for strict law prevails, we look about in vain for the saddening sights so common elsewhere—the mass of the people, when the authorities prosecute the criminal or the violator of the laws or seek to arrest him, taking his part, and seeing in the state power the natural enemy of the people. Every one knows that the cause of the law is his own cause. Only the criminal here sympathizes with the criminal. The honest man does not. Rather does he lend a willing and helping hand to the police and to the authorities.
It will be scarcely necessary for me to express in words the inference to be drawn from what has been said. It is summed up in the principle: For the state which desires to be respected abroad, and to be firm and unshaken internally, there is no more precious good which it has to guard and foster than the national feeling of legal right. The fostering of it is one of the highest and most important duties of political pedagogy. In the healthy, vigorous feeling of legal right of the individual, the state possesses the most fruitful source of its own strength, the surest guaranty, from within and from without, of its own existence. The feeling of legal right is the root of the whole tree. If the root be good for nothing, if it withers in the rocks and in the sand, all the rest is but an illusion; the storm comes and plucks it up by the roots. But the trunk and the top have the advantage that they are seen, while the roots are hidden in the ground and veiled from sight. The disastrous influence which unjust laws and bad legal institutions exercise on the moral power of the nation acts under ground, in those regions which so many amateur statesmen do not consider worthy of their attention; they are concerned only with the stately top; of the poison which rises to the top from the root they have no idea whatever. But despotism knows where it must strike to fell the tree; it leaves the top untouched at first, but destroys the roots. Every despotism has begun with attacks on private law, with the violation of the legal rights of the individual; when its work is done the tree falls of itself. Hence the necessity, above all, of opposing it here, and the Romans well knew what they were doing when they took advantage of an attempt on female chastity and honor to put an end to the kings and the decemvirate. To destroy the feeling of personal liberty in the peasant by means of taxes and services, to put the citizen under the guardianship of the police, to make the permission to go on a journey dependent on the granting of a passport, and the thought of the author on the approval of the censor, to impose taxes according to one’s good will and pleasure—even a Machiavelli could have given no better recipe to extinguish all manly feeling of personal liberty in a people, and to insure despotism an unresisted conquest. That the same door through which despotism and arbitrariness enter stands open for the foreign enemy also, is not considered; and only when the enemy is actually there, and it is too late, do the wise come to recognize that the moral power and the feeling of legal right of a people are the most effectual rampart which can be raised against external enemies. It was at the time that the peasant and citizen were the subjects of feudal and absolute arbitrariness that Alsace and Lorraine were lost to the German Empire. How could those provinces have for the empire a feeling which they had ceased to have for themselves?
But it is our own fault if we understand the teachings of history only after it is too late; it is not its fault if we do not understand them in time, for it preaches them, always, in such a manner that we may understand them and profit by them. The power of a people is synonymous with the strength of their feeling of legal right. The cultivation of the national feeling of legal right is care for the health and strength of the state. By this cultivation and care, I do not, of course, understand schooling and instruction, but the practical carrying out of all the principles of justice in all the relations of life. It is not, however, sufficient to occupy ourselves only with the external mechanism of the law; it may, indeed, be so organized and directed that the most perfect order may reign, and still that the demand above referred to may be entirely ignored. Personal bondage, the tax for protection paid by the Jew, and so many other principles and institutions of times past, which were in the most flagrant contradiction with a strong, healthy feeling of legal right, and which injured the state itself, perhaps, more than the citizens, peasants, Jews, on whom the burthen of them fell, in the first instance, were also conformable to law and order. The fixedness, clearness, certainty of positive law, the doing away with all those principles at which a healthy feeling of legal right might take offense in any sphere of the law, not only of private law, but in the police power, the administrative, financial, legislative, the independence of the courts, the greatest possible perfection of legal procedure—this is a surer way to increase the power of the state than the greatest possible increase of the military budget. Every provision which the people feel to be unjust, and every institution which they detest, is an injury to the national feeling of legal right and to the national strength, a sin against the idea of law, the burthen of which falls on the state itself, and for which it has not infrequently to pay dearly. It may, under certain circumstances, cost it a province. I am not, indeed, of the opinion that the state should avoid these sins from reasons of expediency simply. Rather do I consider it the most sacred duty of the state to realize this idea for its own sake; but this may be doctrinarian idealism, and I have no word of blame for the practical politician and statesman who refuses such a demand with a shrug of the shoulders. And just on this account have I exposed the practical side of the question to view, the side which he fully understands; for the idea of law and the interest of the state go, here, hand in hand. There is no feeling of legal right, no matter how healthy it may be, which can, in the long run, resist the influence of bad laws; it grows blunted, withers and decays. For the essence of legal right is, as I have frequently remarked already, action. What the air is to the flame, freedom of action is to the feeling of legal right. Refuse it this freedom, and the feeling dies.