Struggle for rights

Author: (German) Jhering
Publisher:
Publishing Date: 2007-01-01
Features: Jhering's life's thoughts, like his works, can be divided into several stages: from a defender of the Historical School of Law, to a follower of conceptual jurisprudence, to a pioneer of interest jurisprudence. Among Jhering's legal works, three are particularly notable: The Spirit of Roman Law, Struggle for Justice, and The Theory of Legal Purpose. Although they may not be his most famous works, they mark different stages of Jhering's thought development. Struggle for Justice emerged from Jhering's farewell lecture in Vienna in the spring of 1872, which was met with great acclaim. In both time and content, this work lies between The Spirit of Roman Law and the subsequent The Theory of Legal Purpose. On the path from conceptual jurisprudence to interest jurisprudence, Struggle for Justice occupies a central position in the development of Jhering's legal theory. Upon its publication, the book was immediately translated into English, French, Italian, Russian, Japanese, Hungarian, Greek, Dutch, Romanian, Danish, Czech, Polish, Spanish, Portuguese, Swedish, and more, with over fifty translations to date, demonstrating its extraordinary international recognition.
In this book, Jhering points out that all rights face the danger of being violated or suppressed because the interests claimed by right-holders often conflict with the interests of others who deny those claims. Therefore, the premise of rights lies in being prepared at all times to assert them, and to realize rights, one must be prepared to struggle for them at all times. Jhering eloquently criticizes Savigny's view that "the formation of law is like the formation of language—it is formed unconsciously and spontaneously, without any competition or struggle." Jhering's words remind us not to comfortably immerse ourselves in the illusion of a "spontaneous order" but to strive for rights through struggle and to call for law. In a misty atmosphere of fear, the only way to save oneself and others is for more and more people to join the ranks of the struggle.
"The goddess of justice holds a scale in one hand to measure rights and a sword in the other to defend them. A sword without a scale is naked violence, and a scale without a sword signifies the weakness and vulnerability of law. The scale and the sword are interdependent, and the balance between the power of the sword wielded by the goddess of justice and the skill in operating the scale lies precisely in the sound state of law." Jhering believed that "law is largely consciously manufactured by the state to achieve certain purposes," and from the state's perspective, state power should indeed guarantee the realization of rights, including creating a favorable environment for the long-term existence of rights and providing effective remedies for damaged rights.
In Jhering's view, the struggle for rights is not only the right of any citizen to assert their interests but also an obligation for citizens to engage in the struggle for rights. He believed that human existence should not be merely physical but must also be spiritual. The struggle for rights is precisely through protecting one's own rights that one protects the conditions for one's spiritual existence. "To assert rights is an obligation of spiritual self-defense, and to completely abandon rights is spiritual suicide." Jhering passionately praises the litigation mania. In his view, even a farmer's tedious lawsuit to assert the ownership of even an inch of land, even if it seems futile, is commendable. Because their purpose of litigation is not the insignificant subject matter but the assertion of their personality and their legal sentiments (legal sentiments, a term frequently used in the book, refers to the psychological source of rights). Compared to this purpose, all sacrifices and efforts brought by litigation are insignificant to the right-holder—the purpose compensates for the means. Even Shylock becomes a "powerful and formidable" man when he cries out, "I want the law," because "Shylock's assertion of personal rights suddenly involves the law of Venice."
Jhering believed that a person abandoning their rights is not prohibited by the law itself. Because rights are merely a matter of choice, parties can completely decide, based on their own judgment, whether to abandon rights for peace or to sacrifice peace for rights. However, if examined from a utilitarian perspective in terms of its social impact, the act of abandoning rights is extremely dangerous. Because when such behavior becomes a widespread social phenomenon, it undoubtedly indulges and encourages illegal acts, severely challenges the authority of law itself, renders the function of law ineffective, and makes it difficult to maintain social order.