The Struggle for Law/Chapter VI

by Rudolf von Jhering

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CHAPTER VI

THE ROMAN LAW OF TO-DAY, AND THE
STRUGGLE FOR LAW

MIGHT stop here, for my subject is exhausted. The reader, however, will allow me to claim his attention for another question closely related to my subject, the question how far our present law, or to speak more accurately, the Roman law of to-day as it obtains here, on which alone I can venture to express a judgment, comes up to the requirements described in the preceding pages. I do not hesitate to say that it does not, in any way, come up to them. It is far behind the rightful claims of a healthy feeling of legal right, and not because it has not, in many cases, found the true solution, but because its way of looking at things is diametrically opposed to the idealism described above as constituting the essence of the healthy feeling of legal right—I mean that idealism which sees in a violation of law an attack not only on the object, but on the person himself. Our civil law does not give this idealism the least support. The measure with which it measures all violations of legal right, with the exception of an attack on a man’s honor, is that of material value. It is nothing but the perfect expression of petty, sober materialism.

But what should the law guarantee to the person whose legal rights have been infringed, in his property, but the litigated object or its value? If this be true, the thief, too, might be allowed to depart, who had restored the object stolen. But, we are told, the thief commits a crime not only against the person whom he has robbed, but also against the laws of the state, against order, against the moral law. And does not the debtor who denies the loan which has been made him, the seller or the lessor who breaks his contract, the agent who abuses the confidence I placed in him to overreach me, do the same?

Is it any satisfaction to my wounded feeling of legal right when, from all these persons, I obtain, after a long struggle, only what belonged to me from the beginning? But, even leaving this desire for satisfaction out of consideration, a desire which I do not hesitate to acknowledge to be entirely justifiable, what a disturbance of the natural equilibrium between the parties! The danger with which a bad issue of the suit threatens them consists for the one in the loss of his property, and for the other in the restitution of what he unjustly retained. In the opposite case, the one has the advantage that he loses nothing, and the other that he has added to his wealth at the expense of his adversary. Is not this to provoke the most shameless of lying, and to put a premium on unfaithfulness? But I have thus, in fact, done no more than characterize our law. I shall have an opportunity later to prove this opinion; but I believe that it will be easier to do this, if, for the sake of contrast, I refer to the attitude which the Roman law assumed towards this question.

I distinguish in this respect three stages of development. The first is that, if I may say so, of the boundless violence of the feeling of legal right, not yet capable of self-control, of the older law; the second is that of the measured strength of the feeling of legal right in the intermediate law; the third is that of the decline of the feeling of legal right at the close of the Empire, and especially in the Justinian law.

I here sum up, in a few words, the result of the researches which I have made and published in another work, on the form under which this question appears to us in the first stage of its development. In this stage, such was the sensitiveness of the feeling of legal right that every violation of or attack on one’s personal rights was looked at from the standpoint of subjective injustice and the degree of guilt of the aggressor not taken into consideration; and hence the complainant exacted satisfaction for the injury done, both from the person who was only formally guilty and from the person who was really so. The man who denied a plain debt (nexum), or the damage which he had done to the chattel of his opponent, paid, if defeated, double; and so the person who, in a suit for the ownership of a thing, had as holder of it taken its fruits, was condemned to return double the value, and had, besides, to bear the loss, if defeated, of the sum which he had staked on the suit (sacramentum). The plaintiff had to suffer the same penalty when he lost the suit, for he had claimed the property of another; and if he erred ever so little in the valuation of an amount to which he was justly entitled, he forfeited the whole amount.

Of these principles and provisions of the older law much has passed over into the more modern law, but the new independent creations of that law breathe an entirely different spirit. It may be described as the employment and application of the measure of guilt in all cases of the violation of private law. Objective and subjective injustice are strictly distinguished. The former entails simply the restitution of the object, the second a penalty in addition to this, sometimes a fine, sometimes disgrace; and this proportionate infliction of a penalty is one of the soundest thoughts of the intermediate Roman law. That a depositary who had become guilty of the breach of trust of denying the deposit or refusing to restore it to the depositor, that the agent or guardian who had used his position of trust to promote his own interests, or who had knowingly neglected his duty, should escape by merely restoring the thing or by making good the damage caused, was something to which the healthy feeling of legal right of the Romans could not reconcile itself. It demanded, besides this, the infliction of a penalty for the wrong done, as a satisfaction of the wounded feeling of legal right and as a means of deterring others from similar misdeeds. The penalties inflicted were, in the first place, infamy—in Rome one of the severest imaginable, for it entailed, besides the social degradation which it produced, the loss of all political rights, political death. It was inflicted in all cases in which the infringement of legal rights was an aggravated breach of faith. Then there were the pecuniary penalties, which were much more extensively employed than they are among ourselves. For the person who, in an unjust cause, instituted a suit, or allowed one to be instituted, there was an entire arsenal of such deterrent means in readiness. They began with fractions (¹⁄₁₀, ¹⁄₅, ¹⁄₃, ¹⁄₄,) of the litigated object, rose to multiples of its amount, under certain circumstances, where the defiance of the opponent could not be broken in any other way, ad infinitum, that is, to the amount which the plaintiff declared under oath to be satisfactory. There were especially two forms of procedure, the prohibitory interdicts of the praetor and the actiones arbitrariæ, which were intended to compel the accused to desist without any further disadvantageous consequences, or to expect to be considered a willful violator of the law, and to be treated accordingly. They compelled the accused, when he persisted in his resistance, or in his attack, not to restrict his action to the person of the accuser, but to work against the authorities also; and thus it was no longer only the legal rights of the complainant which were in question, but the law itself in the person of its representatives.

The object of these penalties was the same as that of the penalty in criminal law. It was, on the one hand, a purely practical object, to guard the interests of private life against such violations as did not fall under the head of crimes, and, on the other, a moral object, to afford satisfaction to the wounded feeling of legal right; not of the person directly concerned only, but of all those persons who have known of the case, and to reassert the authority of the law. The money was not the end had in view, but only the means to the end.^[1]

The manner in which the intermediate Roman law looked at this matter is, in my eyes, something wonderful. It was equally far removed from two extremes, from that of the old law, which placed objective injustice on the same level as subjective injustice, and from that of our present law, which taking an opposite direction has lowered the latter to the level of the former. It gave entire satisfaction to the legitimate claims which could be raised by the justest feeling of legal right, for it was not satisfied with strictly separating the two species of injustice, but it could discern and give expression minutely and intelligently to the form, mode, gravity, and to all the shades of subjective injustice.

In turning now to the last stage of development of the Roman law, as it has been definitely fixed, in the Institutes of Justinian, I cannot resist calling attention to the importance of the law of inheritance, both for the life of the individual and for that of the nation. What would the law of this period be, if it had had to create it by its own efforts? But, just as many heirs, unable to procure for themselves the necessaries of life, live on the wealth accumulated by the testator, an exhausted and degenerated people subsist, for a long time, on the intellectual capital of a previous vigorous age. I do not mean simply that it enjoys the labor of others without any trouble to itself. I would, above all, call attention to the fact that it is in the nature of the works, creations and institutions of the past to preserve, for a certain length of time, and to revivify, the spirit which gave them birth. They hold in themselves a store of latent force which is changed into active force by personal contact with them. In this sense the private law of the republic in which was reflected the energetic and vigorous feeling which the old Roman people had for legal right, served the empire for a time as a living source. In the great desert of the later world, it was the only oasis in which fresh water flowed. But despotism is like the simoon’s breath, which allows no plant to grow; and private law alone not being able to maintain a spirit which was despised everywhere, was obliged to succumb, although latest of all, to the spirit of the new era. This spirit of the new era presents itself to us under a very strange appearance. We might expect to find in it the marks of despotism, severity, harshness, want of consideration, and yet we find the very opposite—mildness and humanity. But this mildness itself is a despotic mildness, that is, it robs one person of what it gives another—it is the mildness of arbitrariness and caprice, not that of humanity—it is the penalty of cruelty. This is not the place to give all the proofs on which I might base this assertion. It will be sufficient, it seems to me, to call attention to one especially significant trait of that character, one which is rich in historical material—the moderation and consideration shown to the debtor at the expense of the creditor. It may, I think, be laid down as a general maxim that sympathy with the debtor is the sign of a weak epoch. This sympathy styles itself humanity. A vigorous age is concerned first of all with insuring the creditor his rights, even if the debtor goes to the wall in consequence.

To come now to the Roman law of the present time: I almost regret that I have mentioned it, for I see myself compelled to pass judgment on it here, without being able to defend it as I would like. But that judgment itself I do not hesitate to express.

To sum up my thoughts on the subject in a few words, I would say that I find in the aggregate of history, and in all the application, of modern Roman law, a marked preponderance, rendered necessary to a certain extent by circumstances, of simple erudition over all those factors which otherwise determine the formation and development of the law: the national feeling of legal right, practice, and legislation. It is foreign law, written in a foreign language, introduced by the learned who alone can understand it perfectly, and exposed, from the first, to the different and changing influence of two entirely opposite interests, frequently in conflict with each other; the influence, I mean, of science, purely and simply historical, and that of the practical application and development of the law. The practice, on the other hand, has not strength sufficient to dominate completely over the spirit of the matter of the law. It is, therefore, condemned to permanent dependence on, to a permanent wardship of, the theory; and hence it is that particularism prevails in legislation and in the administration of justice over the weak and limited efforts made to reach centralization. Can it be a matter of surprise that a gaping abyss stood between such law and the national feeling of legal right, that the people did not understand their law, nor the law the people? Institutions and principles which in Rome were, considering the circumstances and customs of the time there, intelligible, became here, on account of the complete disappearance of their conditions precedent, a real curse; and there never was in this world a mode of administering justice with more power than this to shake a people’s confidence in the law and all belief in its existence. What can the simple and honest ordinary man think when the judge, before whom he appears with a document showing that his opponent acknowledges an indebtedness to him of a hundred dollars, holds the signer not to be bound because the document is a cautio indiscreta, or when a document which expressly mentions a loan as the basis of an indebtedness is held to have no force as evidence except after the expiration of two years?

But I do not intend to enter into details; there is no telling where this might lead me. Rather would I confine myself to pointing out two instances of aberration—I cannot call them by any other name—in our jurisprudence, which are of a fundamental nature and which contain the real germs of injustice.

The first consists in this, that our modern jurisprudence has entirely lost sight of the simple idea already brought out, that there is question in an infringement of one’s legal rights, not merely of a pecuniary value, but of the satisfaction of the wounded feeling of legal right. Its measure is the basest and emptiest materialism—money and nothing else. I recollect having heard of a judge who, when the amount of the object in litigation was small, in order to be relieved of the burthen of the trial, offered to pay the plaintiff out of his own pocket, and who was greatly offended because the offer was refused. That the plaintiff was concerned about the vindication of his legal rights and not about the money, this learned judge could not get through his head; and we cannot blame him for it. He might very easily shift the blame on the science of the law. The money condemnation which, in the hands of the Roman magistrate, was one of the most powerful means of doing justice to the ideal feeling of legal right which had been wounded, has become, under the influence of our theory of evidence, one of the sorriest expedients which judicial authority has ever made use of to prevent injustice. The plaintiff is required to prove to a farthing the money-value which he has at stake in the suit. What becomes of the protection of the law where there is no such pecuniary interest? A lessor excludes a lessee from a garden which the latter had contracted to enjoy together with the former. How can the lessee prove the money-value of a sojourn of a few hours in a garden? Or the former lets the dwelling before the lessee has taken actual possession of it to another, and the lessee is compelled to put up with the most miserable accommodation for six months, until he finds another dwelling. An inn-keeper shows a guest to the door to whom he had promised a room by telegraph, and the latter may wander about for hours in the night, in search of the most wretched quarters. Try to estimate this in money, or rather, see what compensation the court will mete out for it. In France, thousands of francs; in Germany nothing at all; for the German judge will reply that inconvenience, no matter how great, cannot be estimated in money. A private teacher who has made an engagement with a private institute, subsequently finds a more agreeable situation, and breaks his contract; another cannot be had immediately to take his place. Let anyone calculate the money value lost by the want of instruction of the pupils in French or drawing, for weeks or months, or the damage in money sustained by the principal of the institute. Suppose that a female cook leaves her place without cause, and that, in consequence, her master is subjected to the greatest embarrassment, because he finds it impossible to fill it. How can this embarrassment be estimated in money? In all these cases, people are in Germany entirely helpless, for the assistance which the law offers to one whose legal rights have been invaded supposes proof which he never is able to adduce; an assistance which, even where by way of exception it is possible to adduce this proof, is not sufficient effectually to oppose injustice from the other side. This is nothing else but the reign of injustice. It is not the inconvenience to which one is thus subjected that is most burthensome and wounding in all this; it is the bitter feeling that one’s unquestionable rights can be trampled under foot, and that there is no help for it.

We should not hold the Roman law responsible for these defects; for although it has always held to the principle that final judgment should always have a money basis, it always knew how to apply the money condemnation in such a manner that it effectually protected not only pecuniary interests, but all other rightful interests. The condemnation to pay a sum of money was the means of pressure which the judge employed in civil matters to insure obedience to his orders. The defendant who refused to do what the judge imposed on him to do, did not get off with the mere money value of the obligation he owed, but the money condemnation here performed the functions of a penalty, and this consequence of the suit assured the plaintiff a satisfaction to which, under some circumstances, he attached much more importance than to the money; viz., the moral satisfaction for the frivolous violation of his legal rights. Our present law never affords this satisfaction; it knows nothing of it; it takes cognizance only of the money-value of the obligation which has not been met.

In keeping with this insensibility of our present law for the ideal interest affected by a violation of legal right is the doing away with, in modern practice, of the penalties inflicted by private Roman law. The faithless bailee no longer incurs infamy among us. The greatest piece of rascality, if its perpetrator is only skillful enough to evade the criminal law, escapes in our day, entirely free and unpunished. On the other hand, money-penalties (Geldstrafen) and the penalties of frivolous denial, figure in the law books, but they are never applied in practice. But what does this mean? Only that with us subjective injustice is reduced to the level of objective injustice. Between the debtor who shamelessly denies the loan made him and the heir who does the same thing in good faith; between the agent who has deceived me and the one who has simply made a mistake, our present law knows no difference. Everywhere the trial turns only on the bare money interest. Our lawyers to-day are so far from believing that the balance of Justice should, in private law as well as in criminal law, weigh the injustice which has been done, and not only the pecuniary interest, that, in daring to speak about it, I must expect to hear it objected that in this precisely lies the difference between criminal law and the law pertaining to the rights of persons. Yes, this is true of our actual law, unfortunately true, but it is not true of law in itself. It would be first necessary to prove to me that there is one part of the law in which the idea of justice should not be realized to its full extent. But the idea of justice is inseparable from the carrying out of the idea of culpability.

The second instance of aberration of our modern jurisprudence, referred to above, consists in the theory of evidence which it establishes. One might think that theory had been invented only for the purpose of frustrating the law. If all the debtors in the world had conspired together to deprive creditors of their rights, they could have devised no more effectual means to reach that end than has our jurisprudence by means of this theory of evidence. No mathematician can set up a more exact method of proof than the one which our jurisprudence employs. It reaches the acme of irrationality in the actions for damages. The mischief, to employ the language of a Roman jurist,^[2] “caused here to the law under the appearance of law,” and the beneficent contrast which the intelligent mode of action of the French tribunals offers, have been described in so many recent works that I need not add anything on it; one thing alone I cannot refrain from saying: Woe to the plaintiff, well for the defendant!

If I were to sum all that I have thus far said, I might call this last exclamation the watchword of our modern jurisprudence and practice. It has advanced far on the road on which Justinian entered; it is not the creditor, but the debtor, who awakens its sympathy, and it would rather sacrifice the rights of a hundred creditors than, by any possibility, deal too severely with a debtor.

The person not versed in the law might almost believe that it was scarcely possible to add anything to this partial lawlessness, the legacy to us of a false theory of legists, who busy themselves with our civil law and mode of procedure; and yet, even this theory is surpassed by the aberration of former criminalists, which may be characterized as an attempt on the very idea of law and as the most odious crime against the feeling of legal right committed by science. I here refer to the shameful paralyzing of the right of self-defense, that original right of man, which, as Cicero says, is a law enacted by nature itself, and which the Roman jurists were ingenuous enough to believe could not be ignored in any body of laws in the world. (“Vim vi repellere omnes leges omniaque jura permittunt.”) They might have been convinced of the contrary in the last century, and even in our own. The learned gentlemen, indeed, admitted this right in principle, but feeling for the criminal the same sympathy felt by the jurists of the civil law and its mode of procedure for the debtor, they endeavored in practice to limit and curtail it, in such a manner that they protected the guilty and left the person attacked unprotected. What a deep abyss of the degeneration of the feeling of personality, of unmanliness, of the decay and bluntness of the sentiment of legal right opens before us, when we descend into the literature of this theory! We might almost imagine ourselves in the company of a set of chaste, emasculated men. The man whose life or honor is threatened, we are told, should retire or take flight—that is, yield the field to injustice—and these sages disagreed only on one question: whether officers, nobles and other persons of position should flee also. A poor soldier who, to obey this order, had retreated twice, but who, being pursued by his adversary, finally resisted and killed his pursuer, was condemned to death as a salutary lesson to himself and as a deterrent example to others.

People of very high position and of distinguished birth, likewise officers, should be permitted to make rightful resistance in defense of their honor; but, adds another, in limitation of this, in case of mere verbal injury, they should not go as far as killing. There were, on the other hand, other persons, even state officials, who could not be allowed to enjoy this privilege; and the ministers of civil justice were dismissed with the remark that “as mere men of the law, spite of all their claims, they had to depend on the law of the land and the rights it accorded to all alike, and that they could make no further pretensions.” The merchant class fared worst of all. “Merchants, even the richest,” we read, “constitute no exception. Their honor is their credit; they have honor only so long as they have money; they may, therefore, without any danger of losing their honor or reputation, bear being called opprobrious names, and when they belong to the lower class, put up with a slap, if not very painful, or a rap over the nose.” If the unfortunate man was a Jew or peasant, he was, for violating this prescription, to bear the penalty of prohibited self-defense, whereas other persons were to be punished as “gently as possible.”

But what is especially edifying is the manner in which it was attempted to exclude the right of self-defense when a question of property was involved. The law of property, some said, was just like that of honor, a reparable loss; the former was repaired by the reivindicatio, the latter by the actio injuriarum. But how if the robber has taken to his heels and escaped to foreign parts, and no one knows who or where he is? The owner has still de jure the reivindicatio, and “it is only the consequence of accidental circumstances, entirely independent of the nature of the right of property, that, in some cases, the complaint does not always lead to the proposed end.” With this the person may console himself who carries everything he owns upon his person in the form of valuable papers. He still holds his property and the reivindicatio, and the robber has nothing but actual possession! This reminds me of the man who, when robbed, consoled himself with the reflection that the robber had not the directions for the use of the stolen object. Others admit that, when the loss of a very large sum is involved, it is allowable to employ force, only as a last resort, but they make it the duty of the person attacked, no matter under how great excitement he may be laboring, carefully to consider how much force is required to repel the attack. If he needlessly cracks the skull of the aggressor, where any one who had previously had an opportunity to subject the strength of the skull to an exact examination would have been able to render him harmless by a less powerful stroke, he is held responsible! On the other hand, in the case of less valuable objects, for instance, a gold watch or a purse with a few guldens, or even with a hundred guldens, he must not, for the life of him, do any harm to his aggressor. For what is a watch in comparison with life and limb? The loss of the former can be repaired; the loss of the latter is irreparable. This is an indisputable truth, but that the watch belongs to the person attacked and the limbs to the robber, is forgotten. Doubtless they have for him an incalculable value, for the person attacked they have none at all; and then remains the question: Who repairs the loss of the watch?

But enough of this learned folly and perversity. How deeply humbled we should feel at seeing that the thought, so simple, just, and so much in harmony with the true feeling of legal right, that, in every legal right, be its object only a watch, one’s person and all his rights are attacked, had vanished from the law to such an extent that the sacrifice of one’s rights and the cowardly flight from injustice could be raised to the dignity of a 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 writings of Julius Glaser for a refutation of it. But if we were warranted to estimate the law from an aesthetic point of view, I do not know whether, instead of seeing what is beautiful in the law in the exclusion of a struggle, I would not rather place it in the admission of a struggle. I have the courage to express an opinion in direct opposition to Herbart’s, and frankly to confess myself guilty of finding pleasure in strife. I of course do not here mean a mere war of words, or a contest about nothing. I mean that sublime struggle in which the man stakes his own person and all he has for his own rights or the rights of his country. The person who blames the love of struggle in this sense may wipe out all our literature and all our art from the Iliad of Homer and the sculpture of the Greeks to our own day. There is scarcely any subject which has had so much attraction for the pen of the poet and the brush of the painter as strife and war; and we would have to go far to find the person whose aesthetic taste is more displeased than pleased at the contemplation of the higher display of human power which sculpture and poetry have illustrated. The highest problem of art and literature is man’s defense of an idea, be that idea law, fatherland, faith, or truth. But this entering the lists for an idea is always a struggle.

It is not, however, aesthetics, but ethics, which has to tell us what is in harmony with, and what contradicts, the idea of law. But ethics, far from rejecting the struggle for law, enjoins it as a duty. The element of strife and of struggle which Herbart would eliminate from the idea of the law is an integral part of it, and has been from the first—struggle is the eternal labor of the law. The sentence: “In the sweat of thy brow shalt thou eat bread,” is on a level with this other: “By struggling shalt thou obtain thy rights.” From the moment that the law gives up its readiness to fight, it gives itself up; for the saying of the poet, that only he deserves liberty and life who has to conquer them for himself every day, is true of law also.

1. There is a very strong proof of what I have just said in the actiones vindictam spirantes. They show this ideal point of view very clearly, and that their object was not a sum of money or the restitution of a thing, but reparation for an attack on the feeling of legal right, and on the feeling of personality (magis vindictæ quam pecuniæ habet rationem). Hence these actions did not survive to the heirs, they could not be assigned, they could not be begun by the creditors in case of an assignment for their benefit, they were barred after a relatively short period of time, and hence they had no place where it was shown that the injured person had not felt the injustice done him (ad animum suum non revocaverit. de injur, 47, 10).
2. Paulus in 1. 91, p. 3, de V. O. (45, 1) “in quo genere plerumque sub autoritate juris scientiæ perniciose erratur.” Only the jurist had here another aberration in view.