Struggle for Power - A Modern German Legal Classic

Author: Jhering
Publisher:
Publish 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 noteworthy: The Spirit of Roman Law, Struggle for Law, and The Doctrine of Legal Purpose. Although they may not necessarily be his most famous works, they mark the different stages of Jhering's thought development. Struggle for Law 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 Doctrine of Legal Purpose. On the path from conceptual jurisprudence to interest jurisprudence, Struggle for Law 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 the extraordinary international recognition it has received.
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 prerequisite for realizing rights lies in being always prepared to assert them, and to achieve rights, one must be always ready to fight for them. 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 be complacent in the illusion of the "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 one hand a scale to measure rights and the other a sword prepared to fight for 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 of operating the scale lies precisely at the heart of a sound legal state."
Jhering believed that "law is largely consciously manufactured by the state to achieve certain purposes." From the state's perspective, state power should indeed safeguard the realization of rights, including creating a favorable environment for the long-term existence of rights and providing effective remedies for injured 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 such struggles. 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 survival.
"Asserting rights is an obligation of spiritual self-defense, and completely abandoning rights is spiritual suicide." Jhering passionately celebrates the litigation (litigation addiction). In his view, even if a farmer engages in tedious litigation to assert the ownership of even an inch of land, it is worth the effort, even if the outcome is uncertain. Because the purpose of their litigation is not the insignificant subject matter but the assertion of their personality itself 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 the 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 own rights is not legally impermissible. 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, from a utilitarian perspective, the social impact of abandoning rights is extremely dangerous. Because when such behavior becomes a widespread social phenomenon, it undoubtedly indulges and encourages illegal acts, severely challenging the authority of law itself, rendering its function ineffective, and making it difficult to maintain social order effectively.