Jurisprudence for Jailhouse Lawyers, Part V
by Eric C. Sapp, LSPC Staff Attorney
An ancient fragment of the Greek thinker Heraclitus says that war (pólemos) is the common condition and justice (díkē) is conflict (érĭs).1 The fragment continues: all things are born of conflict and necessity. But justice is identified with that conflict. His predecessor Anaximander had said all things perish on account of their injustice (ădĭkĭ́ā).2 These were complementary theses.
Modern German jurist Rudolf von Jhering echoed the idea but with a torsion; conflicts along a series from war to the civil action in court are “but forms and scenes of the one same drama, the struggle for rights, the struggle for the principles of law.”3 A torsion like that of a Moebius strip, it’s a subtler, more profound claim than a glib “might makes right”: right is a struggle for rights. “The life of the law is a struggle,” he says, “of nations, of the state power, of classes, of individuals. […] Every principle of law which obtains had first to be wrung by force from those who denied it; and every legal right […] supposes a continual readiness to assert it and defend it.”4
Jhering considered himself a competitor of the then-dominant Historical School which held that law derived from custom via “a process as unnoticed and as painless as is the formation or growth of language.”5 Jhering’s critique on this point presupposed, erroneously, that language is an organism unmarked by trauma and contestation. A contrary perspective was conveyed by the changes to over four hundred sections in title 15 of the California Code of Regulations last summer when the term “inmate” was replaced by “incarcerated person” and “parolee” by “supervised person.” These changes, dubbed “nonsubstantive” by the Department of Corrections and Rehabilitation, thus requiring no noisy notice, had been resisted for years by the agency, insisting it was impossible to heed the call of activists for more dignifying, humanizing language. The reversal was a welcome scene in the drama.
Jhering’s book began as a lecture in 1872. Omitted from the book was a personal anecdote that, according to contemporary accounts, much amused his large live audience of lawyers. The eminent professor of law related how his understanding of the importance of a feeling of legal right (Rechtsgefühl) – the emotional power, not merely logical content, of pursuing justice – was forged in a contractual dispute with his domestic servant. In his telling, he was wronged; however, his account distorted the facts. Researchers recently examined the case archives and discovered that the plaintiff-worker, Caroline Kuhl was legally right and appropriately won her case, which she initiated pro se. She had rightfully left employment at the end of a fixed term contract and hadn’t breached any duty of notice that Jhering, based on a quasi-feudal interpretation of the law, had asserted.
The jurist whose scholarship, arguably more than any other author, laid the methodological groundwork for the 20th century’s “social legislation” – such as wage-and-hour laws – was himself a rank exploiter: he not only refused to pay Fraulein Kuhl her earnings, but had withheld the equivalent of her passport until the court ordered its return. Jhering had even tried to enlist the coercive power of the police to get his way, notwithstanding that it was a purely civil dispute. It was a drama whereby an archaic, feudal conception of authority over the worker was invoked to constrain the freedom to voluntarily consent or decline work. The feudal standpoint lost in the end.
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1. H. Diels, 1 Die Fragmente der Vorsokratiker, Berlin: Weidmannsche Buch. (1912), at 94.
2. Id. at 15.
3. R. von Jhering, The Struggle for Law, trans. John J. Lalor, Chicago: Callaghan & Co. (1915; orig. 1872) at 22.
4. Id. at 1.
5. Id. at 7 (on language); at 13 (on art, same).
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