Lassalle’s next work, after the Italian War, was a contribution to a periodical, appearing in book form, and edited, during the summer of 1860, by the democratic writer, Ludwig Walesrode, under the title of Democratic Studies. This was the essay, subsequently issued as a pamphlet: Fichte’s Politisches Vermachtniss und die neueste Gegenwart. [1] It may be considered as an epilogue to the earlier work, where Lassalle says openly what he had thought well to put earlier in a veiled form. The “Political Legacy” of Fichte, as Lassalle explains, quoting from a sketch on a political essay found among Fichte’s papers, “is the unification of Germany, but as a unified Republic; otherwise, a united Germany would anyhow be impossible. Were Germany conquered by any one of the existing German States, that would not constitute national unity; but only the forcing upon the other German races the specific Hausgeist [2] of the conquering tribe, and their becoming Prussianised, Bavarianised, Austrianised!” ... “And inasmuch as that balancing which is still possible between their different idiosyncrasies would disappear, the German people would find themselves uprooted in their spiritual life also.”
“The conquest of Germany, not in the special ‘Hausgeist,’ but rather by the free absorption of that spirit into the national spirit and its aims, would assuredly be something very different! But it would be sheer madness to expect the idealism of such a decision from men,” – Lassalle is speaking of the German princes, and especially of the King of Prussia – “whose mental personality, like that of all other men, is a definite product of the various factors in their education, traditions, inclination, and history; as mad as to expect it of any one of us, had his training and education been exclusively determined by the same factors.”
These are the last of Lassalle’s own comments in the essay. The rest is taken up with quotations from Fichte, demonstrating how and why the unity of Germany is only possible on the basis of “complete personal freedom,” and that for this very reason, the Germans, “in the eternal plan of the Universe,” are called upon to represent a “true kingdom of right,” a kingdom of “freedom, founded upon the equality of all that bear the face of man.” And, Lassalle concludes, “Far be it from us to weaken the inimitable strength of these words by adding any of our own.” Then, addressing the editor: “And now, dear sir, if I have not been able to comply literally with your request (i e., to write an article on a “burning question of the day”), yet I think your object has been attained, and mine also.”
Now, what was Lassalle’s “object” in publishing this essay, which is dated January, 1860? This also we learn from a letter to Marx. On the 14th April, 1860, Lassalle writes to the latter explaining why he had accepted Walesrode’s invitation, although his whole time was taken up with the completing of a great work. To begin with, he had found Walesrode a very honest man, brave and stout-hearted, as his meritorious pamphlet, Politische Todenschau [3], proved, and who deserved that one should do something for him. But then Lassalle continues: “Finally, the book might, after all, produce some salutary effect upon our German Philistines, and if I had refused the invitation, it would in any case have been addressed to one far less determined than myself. Yes, unquestionably, to some one coquetting with monarchical or some such democratism, or Kleindeutsch ideas, while the invitation gave me an opportunity of once again uttering a genuine republican war-cry, and thus, in the name of our party, taking possession of the book, which, it seems to me, from its contents, although I know no particulars as to these or the contributions, was hardly likely to spread our ideas or strengthen the influence of our party,
So, willy-nilly, an article came to be written. I have asked for a special advance copy of it only that I might send it to you. (The book itself will not appear till the October season.) I am forwarding it with this letter please read it, then send it on to Engels, and finally write me if you like it.
I believe that amid all this disgusting Gothaist turmoil it will produce the vivifying effect, that beyond the mountains there are yet men; that a Republican Party still lives; the effect of a trumpet-blast.
The book, the completion of which was at this time occupying Lassalle, was the System der Erworbenen Rechte. [4] It is odd, and yet to anyone who has attempted a great work, comprehensible enough, to hear Lassalle complain that the thing is dragging so, and that he has “already conceived an intense hatred of it.” But this “damned work,” as he calls it in another passage of the same letter, was not to be finished even in the three months he now gave himself as a limit.
In 1860, Lassalle was again seriously ill with an attack of that chronic disease [5] to which be had already referred in the Dusseldorf Assize Court Speech, and from which he continued periodically to suffer. “I have been, and still am, very ill,” he begins a letter to Marx, that must have been written at the end of January, 1860. “I have again been ill, and worse than before,” is the beginning of the letter quoted above. “Have I been overworking of late, or is too long neglect taking its revenge now?” he continues. “In short, it seems my health has ceased to be that indestructible rock upon which I could once build so confidently.” To be thoroughly cured, Lassalle, in the summer of the same year, went to Aachen. There he made the acquaintance of a young Russian, Sophie Solutzew,who had accompanied her father – who was also taking the waters – to Aachen. This young lady so fascinated Lassalle that he there and then, at Aachen, made her an offer of marriage. This, after a few weeks’ reflection, Mademoiselle Solutzew declined.
All that has so far been made known of this episode in the agitated life of Lassalle, is through the account of Mademoiselle Solutzew, now the wife of a landowner in South Russia, published in 1871 in the St. Petereburg review, The European Messenger. A German translation of these statements was published a year later by F.A. Brokhaus, at Leipzig, under the title of A Love Episode in the Life of Ferdinand Lassalle. [6] Everything was perfectly correct. Sophie Solutzew says that Lassalle certainly made a deep impression upon her, and that for a time she thought she might love him. But she was always doubting, until she became certain that a love that doubts is not love – above all is not the kind of love which Lassalle, with his references to the struggles that the future would bring him, expected. Possibly the prospect of these struggles frightened the young lady more than she is willing to admit; the confessions of a journal and of “memoirs” notoriously never speak the whole truth. On the other haul, that view of the affair which counts it almost a crime on the part of Mademoiselle Solutzew to have been loved by LassalIe without returning his love seems to me really a little too sentimental. The lady had a most unquestionable right not to bestow her heart upon Lassalle, and Lassalle himself, passionate as his wooing was, very soon consoled himself for his mishap. Far more interesting than the love affair itself are the letters to which it gave rise from Lassalle to Mademoiselle Solutzew, above all the letter already referred to – The Confessions of a Soul, a MS. covering over thirty-five pages of printed matter. This is one of the most interesting documents for the understanding of Lassalle. If his first “journal” shows us the boy developing into a Youth, here we see the youth grown into a man, and laying bare his inmost self. Surely what has just been said of “confessions” in general may apply also to this particular case, but one of the most remarkable characteristics of Lassalle is his – I might almost say, unconscious – sincerity. Lassalle’s was, as his constant tendency to drop into the pathetic proves, a theatrically-inclined nature. He liked a little acting, and was far too much a society man to see any harm in using speech, according to Talleyrand’s saying, to conceal his thoughts. And yet, as a human being he could not show himself other than he really was. His inclinations and his passions were far too strong not to betray themselves everywhere; his personality far too marked to hide itself under any disguise he might care to assume. Thus, even from the picture of himself which Lassalle drew for Sophie Solutzew, a picture in which he painted himself as he wished to appear to the young girl, the real Lassalle looks out – the real Lassalle with all his qualities and with all his defects.
In every line of this his huge self-confidence and vanity reveal themselves. I have said how in this MS. Lassalle suns himself in the light of his future fame; how he represents himself as the leader of a party, while, it, fact, no such party as yet existed; depicts aristocracy and bourgeoisie as hating and fearing him while at this time any cause for fear and hatred was wanting. In the same way he exaggerates his successes so far achieved. “Nothing, Sophie,” he writes of the success of the Casket Speech, “can give you any idea of the electrical effect that I produced. The whole town, the population of the whole province, was, so to say, swimming upon the waves of enthusiasm ... all classes, the whole bourgeoisie, were drunk with enthusiasm ... this day secures me, in the Rhenish Provinces, the reputation of a transcendent orator, and of a man of unbounded energy, and the newspapers are spreading this fame through the whole kingdom ... since this day the Democratic Party in the Rhenish Provinces has recognised me as its chief leader.” Then he writes of the Düsseldorf Trial that he came out of it “with not less glory.” “I will give you my speech at this trial, as it also is published; it will amuse you.” He does not add that the speech was never delivered.
But along with the traits of perfectly child-like and childish vanity, there are not wanting those of legitimate pride legitimate, because founded upon principle and not upon any outward honours, while all through the letter rings a note of true conviction. Even when speaking, of the “glory” which, with the occurrence of “certain events” – the expected revolution – would be shed upon the life of his future wife, Lassalle immediately adds: “But – is it not so, Sophie! – that in such great matters, which make up the end and aim of the efforts of the whole human race, we must not merely speculate on individual happiness;” and goes on, “and that is why we must in no wise reckon upon that.”
In another respect, also, Lassalle’s Confession of a Soul is of interest. In it he speaks very circumstantially of his relations to the Countess Hatzfeld. Now, though much in respect to his earlier relations to her may be idealised, this much, at any rate, is certain, that Lassalle could have no reason, when writing to a girl whom he was seeking in marriage, and whom he was trying so desperately hard to win for wife, to paint his feelings towards the Countess – beyond those of mere respect and gratitude – as being stronger than they really were. As a matter of fact, however, Lassalle in the letter indulges in expressions of positively passionate tenderness for the Countess. He loves her “with the tenderest filial love that has ever existed;” “three times as much as his own tenderly-loved mother.” He demands of Sophie that if she accepts him for her husband, she shall “love the Countess with the true tenderness of a daughter,” and hopes, although the Countess, being of “exceptional delicacy of feeling,” and not knowing if Sophie Solutzew loves her, would not wish to live with the young couple, that they may be able to persuade her to, so that “all three may live happy and united.”
From this it is evident that those who represent the Countess Hatzfeld during this tune at Berlin, and later on also, as forcing herself upon Lassalle, have, to say the least, exaggerated enormously. The Countess Hatzfeld had her great faults, and, in my opinion, her friendship was, in many ways, extremely harmful to Lassalle; but because I think this, I feel it my duty to protest when this woman is unjustly dealt by. There could be nothing more ridiculous than the statement, made by several writers, and taken from the well-known pamphlet of Becker, that Lassalle had, later on, plunged into the Dönniges affair in order to get rid of the Countess.
Sophie Solutzew, moreover, speaks very favourably of the impression made upon her personally by the Countess Hatzfeld.
Three letters from Lassalle to Marx belong to this period of his stay at Aachen. Of course he in none of them refers to the Solutzew love affair. Only a few remarks, in one of the letters, as to the situation at the Russian Court, seem to point to the Solutzews as their source. But the letters contain much else that is interesting, and a passage in one of them is especially noteworthy, as it shoes us what Lassalle, even at a time when he was on the best of terms with the Liberal Opposition leaders at Berlin, thought of the Liberal press, and of Prussian justice, which the Liberals were then praising to the skies. As it is as brief as drastic it may be quoted here.
Marx had tried to bring the editor of the Berlin National Zeitung, Zabel, to book for libelling him; Zabel having, under cover of Vogt’s pamphlet, imputed the most dishonourable conduct to Marx. But before the case could come into court, Marx had been non-suited in three different courts. For the said justices of the Stadtgericht, the Kammergericht, and the Ober Tribunal of Berlin, all found that if Zabel repeated, and even trumped, all Vogt’s calumnies against Marx, he could not possibly have had the intention to insult Marx. Such a proceeding as this Marx had, however, thought impossible even in Prussia, and wrote as much to Lassalle. To this Lassalle, who, from the beginning, had advised Marx against the action because justice was not to be hoped for anyhow, now replied as follows:–
You write that you now know, that with us it depends upon the judges whether an individual can even get so far as to bring an action! Dear fellow, how I wronged you once lately when in one of my letters I said you saw things in too dark colours! I beat my breast remorsefully, and retract this entirely. Prussian justice, at any rate, you seem to have regarded in far too rosy a light! But I’ve had to endure far other things than you from this crew; could bring far stronger proof for what you say, have experienced far worse cases altogether at their hands, and that three times three dozen times, and in criminal, and more especially in purely civil cases . Uff! I must drive away the remembrance of all this. For when I think of this daily judicial murder of ten long years that I passed through, then waves of blood seem to tremble before my eyes, and it seems to me as if a sea of blood would choke me! Well, I have got the better of all this long ago, and lived it all down, and time enough has expired since then for me to think of it all coolly. But never do my lips curl with so deep a smile of contempt as when I hear our judges and justice spoken of. Galley-slaves seem to me very honourable persons compared with our judges.
But you will be quits with them, you write. ‘At any rate,’ you say, ‘the Prussians provided you with material, the pleasant consequences of which they shall soon see in the London press! ‘ No, dear friend, they will see nothing at all. Of course, I don’t doubt that you will expose and annihilate them in the London press. But they will see nothing of this, absolutely nothing; it will be as if you had not written at all. For English papers are not read by us, and you see, of our German papers not a single one will take any notice of it, not a single one will say even one poor little word about it. They’ll take good care not to! And our Liberal press most of all! Where then would these calves-heads breathe the slightest word against their most sacred bulwark, ‘the Prussian judges,’ at the bare mention of which they gasp with admiration – why, they never utter the word but with inflated cheeks – and bow their heads to the ground with respect! Oh! nothing at all will they say of it, and from the Danube to the Rhine, and as far as ever ‘the German tongue is spoken,’ they will quietly ignore it in a conspiracy of silence. What’s to be done against this press conspiracy? Oh! one may say what one likes, but our police is, after all, a far more liberal institution than our press! That – heaven help us! I really can find no other word for it – that is a mere —. (The word Lassalle uses here is too strong to be reproduced in print: the reader may fill it in for himself.)
In 1861, Lassalle published, in the second volume of the Democratische Studien, a short essay on Lessing, which he had written in 1858, on the appearance of Stahr’s Lessing’s Leben und Werke. [7] Finally, in the same year he brought out his great work on the “Philosophy of Jurisprudence” – Das System der Erworbenen Rechte (The System of Acquired Rights).
The essay on Lessing is comparatively unimportant. Its form is still predominantly in the old Hegelian manner, and its matter inclines strongly towards the views set forth by Heine in his Über Deutschland, with regard to Lessing’s import for the literature and public life of Germany. Like Heine, Lassalle also extols Lessing as the second Luther of Germany; and when, at the end of the essay, referring to the great resemblance between the situation in Germany at that day, and the time of Lessing, he exclaims: “Like situations bring forth like characters,” he may have been thinking of Heine’s words: “Yes, a third man, too, will come, and he will conclude what Luther began, what Lessing continued, a man of whom the German fatherland stands in such sore need – the third liberator.” For was it not Lassalle’s highest aspiration himself to become this third liberator? As in the Hutten of his Franz von Sickingen, as in the Lessing of this essay, Lassalle’s own attitude of mind is mirrored. Even the apotheosis of the sword is not wanting. “But even when we have carried out Lessing’s conception in the domains of art, of religion, and of history, how about politics?” asks Lassalle. And to remove any possible doubts from the minds of those whom Lessing’s attitude with regard to the above-mentioned subjects had not yet convinced, he quotes from Lessing’s fragment Spartacus. The passage quoted is that where Spartacus, replying to the jeering question of the consul: “I hear thou dost philosophize, Spartacus?” – makes answer:-“What? thou would’st not have me philosophize. Philosophize! it makes me laugh! Well, then, we will fight!”
Twenty years later this prophecy of Lessing’s was fulfilled in the French Revolution. And this solution would, according to Stahr, “be also the end of the business between the Spartacus and the consul of the future.”
The System of Acquired Rights is Lassalle’s chief theoretical work. Although it is primarily written only for jurists, the subject with which it deals is far more akin to the practical struggles of the present day than is that of the Heraclitus. Hence I shall attempt to explain, at least, the chief ideas of this work, which Lassalle was justified in referring to on one occasion as “a gigantic piece of human industry.” On one point the specialists are pretty well agreed – that The System of Acquired Rights testifies at once to the extraordinary mental creative powers, as well as to the juridical acumen of its author. On all these grounds I shall be justified in dealing with this work at some length.
The task which Lassalle had set himself in writing this book, which he divided into two parts, is shown by the sub-title: Eine Versöhnung des Positiven Rechts and der Rechts Philosophie. [8] From the preface, which treats of the work of the Hegelian School in the domain of the law, it is at once seen to what an extent Lassalle still relies on Hegelian principles. It is true he here adopts an attitude more independent of Hegel than he had done in the Heraclitus, but he still holds not merely to the method, but to the fundamental principles of the Hegelian philosophy – i.e., not merely to the dialectic treatment of the subject to be investigated, and to the dialectic form of that investigation, but also to the Hegelian idealism, to the tracing back of historical phenomena to the development and the movement of ideas. Like Hegel, Lassalle, too, stops half-way. He quite rightly points out that the institutions of the law are not the realisations of logically eternal, but of historical categories; yet he deals with these categories as with “realisations of mental concepts historically evolved,” while he entirely ignores the question as to the circumstances under which these mental concepts have developed, as to the economic conditions whose expression they are. In fact, he actually reverses that relation, and “tries to prove from the concrete materials themselves, that the alleged purely positive and historic facts are only the necessary outcome of the historical, mental concept of the corresponding time.” (Vol.1, p.61.) [9]
Thus, despite the most brilliant display of acumen, Lassalle is of necessity driven to erroneous conclusions.
As the most colossal example by which this causal dependence of the so-called “purely positive and historic facts” upon historical mental concepts, is demonstrated in his book, Lassalle refers to his general exposition of the law of inheritance in the second volume of his work entitled: Das Wesen des Römischen und Germanischen Erbrechts in historisch-philosophischer Entwicklung (The Nature of the Roman and Germanic Law of Succession in its Historical and Philosophical Development). The strength of this work lies in its unity, in its logical working out of the main idea, and in its often really brilliant style. Through all forms of law bearing upon the subject, Lassalle aims at working out the Idea that the Roman law of inheritance is based upon the idea of the immortality of the subjective Will of the testator in the heir, while in the old Germanic law of inheritance, the law of intestacy (i.e., of inheritance without testament) is mainly based upon the idea of the family. This law is, therefore, exactly, what the Roman law is erroneously supposed to be, “the real family law.” This is right enough on the whole so far as it goes. But now comes the weak side of Lassalle’s work. His dialectic, acute as it is, remains on the surface. It is true that he again and again probes that surface, leaves no inch of it unexplored; but that which lies beneath remains absolutely untouched. Why is it that the Roman law of inheritance expresses the continuity of the subjective Will? Because of the Roman concept of immortality, because of the cult of the Lares and Manes. Why is it that the Germanic law of inheritance is the family law? “Because of the concept of the Germanic family.” What is the Roman concept of immortality? The continuity of the subjective Will. What is the concept of the Germanic family? “The moral identity of those individuals who have for actual basis ... conscious unity of the mind or love.” (Page 480.) This leaves us exactly where we were. We are moving in a circle of ideas and concepts, but get no explanation why these ideas here and those concepts there were able to play the part assigned them. Nor does Lassalle by a single word attempt to explain the juridical notions and actual laws of the Romans and Germans by their actual life conditions: the original source of the law every where appears as the Volksgeist. [10] And here Lassalle falls into the same error with which he, quite rightly, elsewhere reproached former jurists. He certainly distinguishes between the Roman and the Germanic Volksgeist, but he ignores the whole of the historical development of the Roman people themselves. He constructs, once for all, a Roman Volksgeist that embraces all the thousands of years from the foundation of Rome to the destruction of the Roman Empire – a “spirit” that stands in about the same relation to the Germanic Volksgeist, – constructed after the same fashion – as does “Will to Love.” (II. p.480, note 3.) Of course, we must bear in mind that at the time when Lassalle wrote his “System of Acquired Rights,” true historical research, with regard to the origin and development of Roman society, and of primitive Germanic society, was still in an elementary condition, and that even professed historians were still, on these matters, feeling their way in the dark, He can; therefore, not so much be reproached with not having answered the question correctly, as with not putting it correctly.
Indeed, a correct answer would not, at this time, have be possible. It is only through Morgan’s epoch-making investigations that sufficient light has been thrown upon the primitive development of the different peoples, to allow us to understand why the Romans appeared in history with an entirely different law of inheritance from that of the Germanic races at the time of Tacitus. These were just then passing through the stage of development from the middle to the upper stage of barbarism; the transition from the matriarchate to the patriarchate, from syndyasmic marriage to monogamy, was not yet complete, they still lived in gentile groups founded upon consanguinity, and primitive communism yet prevailed. A law of inheritance based upon the subjective Will was, therefore, simply a matter of impossibility. If “Love” – a much more modern invention – has nothing, consanguinity has everything to do with the old Germanic law of inheritance. With the Romans, on the contrary, even before the abolition of the so-called kinship, the old order of Society, based upon personal blood-relationship, had begun to dissolve, and a new one, an actual state system, based upon territorial divisions and differences of property, been put in its place. [11] Private property in the soil, and the disruption of consanguineous groups as the economic unit, is the ground upon which the Roman Testament grew, not as a, peculiar product of the Roman Volksgeist, but rather as a product of the same causes that created this special Roman Volksgeist, i.e., the spirit that animated Rome at the time of the Twelve Tables. [12] If the Romans did give to the Testament a certain solemn consecration, this by no means justifies us in representing the Testament as a rite whose symbolised action – the transference of the Will – whose main point and substantial essence – the transference of property – were mere insignificant details. In certain stages of culture, even well into a state of civilisation, the people clothe all important economic acts in the form of religious rites; we need but recall to mind the solemn rites at the partitioning of land, at the consecration of the marking of boundaries, etc. What would be thought of the historian who should represent the Roman Terminus-worship as a product of the peculiar nature of the Roman Volksgeist, the expression of a specially Roman “Idea,” of which the main point was the concept of finiteness, and the bounding of the laud only a secondary consideration? What would be thought of a jurist who should ascribe the growth of Roman private property in land to the worship of the god Terminus? Yet this is exactly what Lassalle does when he ascribes to the worship of the Manes and Lures, the origin of the growth of the Testament among the Romans, and traces its final cause to Roman mythology. [13]
In this way Lassalle arrives at a conclusion as unhistorical as it is illogical. He maintains that the Roman Law of the Twelve Tables, by assigning the heritage to which there was no testamentary heir, to the nearest agnate (i.e., nearest of kin on the male side), and in the event of there being no agnate, to the Gens, proved that the Testament, in point of historical time, also appeared first, while the law – of intestate inheritance was merely a subsequent and subsidiary introduction. As a matter of fact, it is this very Law of the Twelve Tables which, although it reverses the order of events, demonstrates the true coarse of historical development. It begins by enunciating the newly-introduced legal principle of testamentary freedom – that any one to whom the testator devises his property by testament shall be heir. But should there be no testament, the earlier law of inheritance again comes into force, the original law of intestacy; the heir is the’ nearest agnate, and then the Gens, i.e., the primitive consanguineous group. The first institution historically appears last in the Twelve Tables, because, being the oldest, it is the most comprehensive, and as such naturally forms the final court of appeal. How essentially artificial, on the other hand, Lassalle’s construction is, we may see from the fact that in order to maintain his theory that the Roman law of inheritance was based upon the “Concept of the Will,” he is driven on one occasion to assert that “absolutely no Physical idea lies at the basis of the bloodrelationship of the Agnates” (Vol.II., p.339), and to speak of the agnates as a “community of individuals brought about by the bond of force.” (Vol.II, p.323.) As orthodox old Hegelians, the ancient Romans have, “with cogent consistency of conception,” arrived at the “profound proposition of speculative logic” that the unexpressed Will of the individual is the universal Will, whose content is “the universal Will of the people or the State in whose organisation the former is realised” (II, 323.) The testament and the freedom of testacy are older than the Roman State, but intestacy was introduced by the State. One fine day the State appointed agnates and the gentile community as subsidiary heirs and this, not on the ground of an identical descent, but in its capacity of the State as by law established, as expressions of a common Will.
To-day, we know that the exact opposite was the case; that it is not the State which conferred upon the Gens rights not formerly possessed by it, but rather that the State deprived the Gens of one right, and of one office after the other, constantly curtailed its functions, and that it was only with the disintegration of the gentile community, and with its internal dissolution that the State, and with and through the State, the freedom of the testator, became possible.
As Lassalle knew nothing about the Gens, he, like all the jurists who at his time, and before him, dealt with the original Roman law of inheritance, was of necessity forced to arrive at false conclusions. But instead of coming nearer the truth than his predecessors, he seems rather to be further from it than they were. Bent upon constructing things out of the speculative concept, he cuts himself off from the possibility of recognising their actual connection, The celebrated Professor of Jurisprudence Edward Gans – also laws a Hegelian – had represented the Roman of intestacy and of inheritance by testament as two antagonistic ideas, with no sort of common intellectual origin, and had endeavoured to explain them as a historical class difference between the Patricians and Plebeians. Erroneous as this interpretation is, the idea underlying it is right, i.e., that we here have to do with a fundamental antagonism, and that the two opposing concepts of law sprang up upon different historical soils. Lassalle, however, in this very interpretation, discovered a relapse into the “error of the historical school,” which assumes that “what should be deduced from the Idea” is “an external and historical event.” (Vol.II., p.313.) And, on the other hand, Lassalle declares it is a “fundamental error,” when the other jurists start from the assumption that “the Roman law of intestacy is, in its Idea, a true family law,” As a matter of fact, it is nothing else. Only that the family here considered does not coincide merely with the Roman family, but comprehended the wider gentile group. [14]
We cannot here enter more fully into this question, but even from what has already been said, we may see that the edifice so ingeniously raised by Lassalle rested upon an absolutely untenable foundation. Close and severely logical as the argument is, dexterous and witty as the analysis is, shrewd as many of Lassalle’s commentaries are, that which he meant the whole of his book to demonstrate with regard to the Roman law of inheritance he has not demonstrated. The Roman Idea of immortality is not the basis of the Roman Testament, but its ideological garment: it explains its form but not its content. This still remains even when the religious background disappears. And to my thinking, the many forms and formalities upon which the Romans made the validity of Testaments contingent, were but a further proof that the testament was not, as Lassalle thinks, the earlier, but on the contrary the later institution, and that probably – as with the Germans also, after they had adopted the Roman law – it was, for a long time, the exception, while intestate inheritance was still the rule.
But what is the practical application which Lassalle draws from his theory that the Testament is only to be explained by the Roman .Idea of immortality – i.e., the perpetration of the subjectivity of the Will after death – and that with this explanation it must “as a concept” stand or fall? That after the Roman immortality of the Will had yielded to the Christian Idea of the immortality of the Spirit, an immortality no longer based upon the external world, but upon the “Spirit withdrawn into itself,” the modern law of Testament was nothing more than a huge mistake, a “compact theoretical impossibility?” (II, 494.) This brings us to the first part of his work, of which the second, despite its being complete in itself, is, after all, only a kind of appendix.
The first part of the System der Erworbenen Rechte bears the sub-title: Die Theorie der Erworbenen Rechte, and der Kollision der Gesetze. [15] In it Lassalle endeavours to establish a legal and scientific principle which shall once for all determine under what circumstances, and how far laws may be retroactive without violating the idea of right itself. In other words, where a new law or right comes into collision with an old law or right, when the former and when the latter is to be final; when a right is to be respected really as an “acquired” right, when it is to be made retroactive without any further ado.
In answering this question, the weakness of Lassalle’s method of investigation mentioned above is less noticeable, while all its advantages, the acuteness of perceptive thought, the comprehension – within certain limits – of the historic moment, together with a revolutionary audacity in following out an idea to its ultimate consequences, stand out conspicuously. And thus the result is far more satisfactory than in his inquiry into the nature of Roman Law. At whatever value we may estimate such inquiries into legal-philosophic themes, it certainly cannot be denied that Lassalle solves the question stated above in such a way that both jurist and revolutionist comes by his own. And that is surely no inconsiderable performance. Lassalle begins by laying down the two following propositions as premisses
(a) No law should be retroactive which affects an individual only through the medium of the action of his will.
(b) Every law should be retroactive which affects the individual without the interposition of such a voluntary act; which therefore affects the individual directly in those qualities of his which are involuntary, whether human or natural qualities, or socially acquired qualities, or which affects him only by altering the organic institutions of Society itself.
A law, e.g., which alters the private rights or the civic prerogatives of the inhabitants of a country, comes into force at once. But such a law leaves untouched the acts of an individual taken by him on the ground of hitherto existing privileges, even though these privileges are themselves cancelled by the law. If to-day a law raises the age of legal majority from 21 to 25, all persons over 21 and under 25 are deprived of the rights pertaining to persons of full legal age, which they had hitherto possessed, for they did not possess these rights by any individual act of the will. But the new law would not be retroactive with regard to any legal business executed before the passing of the law, on the strength of their hitherto acknowledged legal coming of age. Only a right obtained through individual doing and willing, through the special action of the will of individuals, is an acquired right.
But even a right acquired by an individual act of the will is not, under all circumstances, exempt from the retroactive effect. “The individual can only secure for himself, and for others, rights in so far, and for so long, as the laws always existing recognise the essence of these rights as a legitimate one.” (I, p.163.) “To every contract the clause should be tacitly added at the outset that the right therein stipulated for, either for himself or others, shall only hold good so long as legislation shall recognise such right as generally permissible.” (I, p.164.) “The only source of right,” Lassalle explains, “is the common consciousness of the whole of the people, the universal Geist (Spirit).” By acquiring aright, therefore, the individual could “never wish to exempt himself from the working of the universal sense of right. Only such an individual could really be exempt from this working who, were such a thing conceivable, neither now nor at any time, wished to acquire, to exercise, or to possess any right”, (I, p.65,) “No individual can drive a stake into the soil of law by means of which he should claim sovereignty for all time and in despite of any future, compulsory, and prohibitive legislation.” (I, p.166.) It is only “this desired self sovereignty of the individual that lies at the bottom of the claim that an acquired right shall still hold good even when prohibitive laws have rendered it invalid.” If, therefore, public opinion has developed to the point of demanding henceforth the abrogation of some former right, e.g., villenage, serfdom, the corvee, and socage; forced services and tributes of a special kind, hunting rights, exemption from land taxes, entail, etc, there could in such case “be absolutely no question” of “any kind of infringement of acquired rights.” Thus, the, decrees of the celebrated night of the 4th August, 1789, by which the French National Assembly abolished all privileges based upon feudal supremacy, “violated no right and did not imply any retroactive effect.” In this case there was nothing to “give compensation for.” To admit a right to compensation, Lassalle pertinently says, even where the content of the right is abolished, had already been so prohibited by the public conscience, i.e., had been declared’ contrary to right, would, “logically followed out, mean nothing less than the investing of classes or individuals with the right to levy a tax upon the public conscience for progressing,”There can only be a question of compensation where not the principle of right itself, but only certain forms of exercising it are abolished, where not a particular class of legal objects, but only single examples of the same, were removed from the sphere of private to that of public law. It was upon this principle, Lassalle shows, that the French Assemblies after 1789 invariably proceeded “with true logic.” On the outer hand, the Prussian law of March 3, 1850, for example, on the commutation of the feudal dues of the peasants, was, in a large number of its provisions, nothing but a violation of the property – “contrary to right, and contrary to the sense of right” – of the poorest classes for the benefit of the noble landowners, i.e., logically followed out, “nothing but a robbery.” [16]
The well-known Conservative Professor of Jurisprudence, Stahl, had laid down that no age was capable of sitting in judgment upon the past, or the laws emanating therefrom, and of accepting or repudiating these according to its decision as to their suitability. To this Lassalle replies that the first part of the proposition is right, but the second very wrong. The deduction from the first part of the proposition is rather that every sage is autonomous, that no age is under the domination of others, and that consequently no age “could be justly bound to perpetrate in itself what is contrary to its sense of right, and which must, therefore, be henceforth regarded by it as a wrong instead of a right.” (I, p.173.) But, Lassalle continues, it is not absolutely essential that a people shall have expressed its new idea of right, its new will in words, through the mouth of its representatives. “For to the concept of right it is only necessary that the public opinion of the people shall have informed the sphere of right, i.e. actuality, with a spiritual content as the substance of its own will. Under certain given circumstances, however, this may be done as definitely and as energetically, not by words, but by the actual demolition, undertaken by a people of an existing right.” (I, p.380.) This principle had already been laid down by the Roman jurists, and the French Legislation during and after the French Revolution had re-armed it. History itself had justified the Convention, and historians – even the reactionary ones – had been obliged to approve its action in dating the legal decrees of the French Revolution from the 14th July, 1789, the day of the taking of the Bastille. And again LassaIle illustrates this by analogous occurrences in Prussia. He shows how in contradistinction to the French jurisprudence, the Prussian Higher Court by verbal quibbling, in several of its sentences evaded the new sense of right, created by the March Revolution, and expressly acknowledged in the Prussian Constitution, “that all Prussians are equal before the law, and no class privileges shall obtain,” and how, in a word, it had proved itself a veritable “convention of reaction.” Four years after the “System” had appeared, this worthy tribunal, by its notorious interpretation of Art. 84 of the Prussian Constitution, proved even to “Liberal calves-heads” how thoroughly it deserved the title bestowed upon it by Lassalle.
We have seen that acquired rights (1) must be brought about by individual acts of the Will; (2) must be in harmony with the ascertained and expressed Volksgeist. This is, in brief, the theory of acquired rights. When, therefore, the French Convention declared in its decree of the 17th Nivose, Year II. (6th January, 1794), that all the prescriptions of this law, which abolished inheritance by entail, etc., should apply to all inheritances entered upon since the 14th July, 1789, the Convention, according to Lassalle, in no way violated the principle of acquired rights. On the contrary, the Convention was fully justified when, on the 2nd Ventose of the same year, it replied to several petitions presented on the subject, that this law “had only given expression to the principle proclaimed by a great people which was again taking possession of its rights on that day, i.e., on the 14th July, 1789,” but that the principle of non-retroaction “was not even touched” by the law, and that this would only become retroactive if this limit were overstepped, i.e., if the law were made to apply to all inheritances entered upon before the 14th July, 1789.
From this it is obvious, to return once again to the question of the law of inheritance, what Lassalle was driving at in his inquiries into the Roman and Germanic laws of inheritance. The Roman law of inheritance, based upon the testament and intestate inheritance, not of the family, bat of “groups in which a common Will was embodied,” was, in Rome, an acquired right, because it corresponded with the Roman Volksgeist, the “substance” of the Roman people, that is the Idea of the immortality of the subjective Will. In the same way the old Germanic law of inheritance – intestate inheritance of the family – was an acquired right, because it corresponded with an idea of the old Germanic Volksgeist, that of the family based upon “the moral identity of its members,” of the family which has for its “actual basis the conscious unity of the spirit or love.” The family inherits because property generally is only family property. The law of intestacy to-day, however, now that property has become purely individual property, is “no longer based upon the family inheriting as by its own right, nor upon the family as named by the presumed Will of the dead, but upon the family as a State Institution,” upon “the universal Will of the State regulating the bequeathing of property.” (II, p.500.) And the latter also applies to testamentary right, which, we have seen, is to-day a “compact theoretical impossibility.” Neither intestate inheritance nor testamentary right to-day is a natural right, but “the regulating of bequest on behalf of Society.” And Lassalle concludes his work with a reference to Leibnitz, who, although he had not grasped the full significance of the testament, yet pronounced the profound apothegm: “Testamento vero mero jure nullius essent momenti, nisi anima esset immortalis” – “But testaments would be, in strict law, null and void if the soul were not immortal.”
After this we surely need no special explanation of what Lassalle means, when, controverting Hegel’s view of the, Testament, he exclaims: “And soon, perchance, it will be shown that from our objective exposition, quite other, and possibly even more radical conclusions as to modern testamentary right will follow.” (II, p.487.) Whatever is not based upon a natural right, but is merely a State institution, the State or Society can at any time alter, curtail or entirely abolish, as seems good for the needs of Society. So that when George Brandes and others following his lead, declare they have not “found a single line” in the whole System of Acquired Rights that points to a translation of Lassalle’s theory of inheritance into practice, we cannot but heartily agree with them. It is not a single line, but – to speak as Lassalle would have done – the whole work that cries out for such a translation. Two years later, therefore, when Lassalle was leading the agitation of the General German Workingmen’s Association, and was accused by the Liberals and Progressists of being an agent of the reactionary party, a correspondent of a Progressist paper warned the Progressist Party against undervaluing Lassalle, the correspondent was quite right in saying, “that Lassalle’s System of Acquired Rights contains all the elements from which can be deduced the practice of abolished rights.”
What else could Lassalle have meant when he begins his preface by declaring that if his work really solved its problem, it should and could ultimately result in nothing less than “the working out in a scientific juridical sense of the politico-social concept underlying our whole period.”
But did Lassalle solve his problem?
So far as his theory of “Acquired Rights” is concerned, its fundamental idea seems pretty generally accepted to-day. Nor can we see what could be advanced against it, even from the Conservative side; now that since 1866, e.g., the proprietary rights of several families have – on the ground of “the many subdivisions in the German Volksgeist,” [17] to quote Lassalle again, (See I, p.223) – been declared forfeited, although this property had been “acquired” by individual acts of the Will.
But, on the other hand, Lassalle’s application of his theory is more questionable, at least, if his example of the nature of the Roman and Germanic law of inheritance is to be taken as its standard. We have already shown the reasons of this weakness, and here we need, therefore, simply recapitulate. Lassalle derives the law of inheritance from the specific Volksgeist. Now, although the intimate connection between the system of inheritance and the Volksgeist is undeniable, yet this connection is not one of cause and effect. System of inheritance and Volksgeist are two effects of one and the same underlying cause, or group of causes. Both are, in the last instance, the product or the expression of the actual conditions of life of a people, growing out of and changing with these, i.e., the law of inheritance is changed as soon as it becomes incompatible with the material conditions of life of a people. Then the Volksgeist discovers that a law of inheritance no longer corresponds with its sense of right. And it is the same with all other legal institutions. The Volksgeist only appears to be the court which pronounces sentence upon their existence. As a matter of fact, it is but the executioner of the sentence, the actual court being the material conditions of life of a people, the way in which the people produces the objects it requires. [18]
How then did Lassalle arrive at so essentially erroneous a theory, transcending even the errors of the old jurists and professors of law? The error lies in this: from end to end of his work Lassalle keeps within the sphere of the juridical and philosophical concept, and he carries through his theory with an iron logic that only does the greater damage to his work. Things are to be explained from their “concept” – derivation; their concept-derivation is to lay bare the laws of their development. But things do nut conform to concepts: they have their own laws of development.
Unquestionably, Lassalle was a consummate jurist. He was naturally endowed with exceptional aptitude in this direction, and his long years of struggle with the law courts in the Hatzfeld affair helped to develop this quality even more strongly. Whenever a law is to be analysed, a legal proposition is to be followed out to the most intimate depths of its concept, Lassallo is in his element, and the result absolutely brilliant. But his strength is also his weakness. The lawyer side in him outweighs all the rest. And so he looks upon social problems mostly with the eye of the lawyer. We see this already in his System of Acquired Rights; it constitutes the weakness of that work. We shall see it later in his socialist agitation.
The System, together with its Preface, was to be a criticism of the Hegelian philosophy of jurisprudence. But he only criticises the latter upon its side issues, takes only a half step forward, while in the main he keeps to the same standpoint, the same ground as it does. This is the more remarkable that the step, which should have been taken in order to make the criticism a really complete one, had been pointed out long since, and that, too, in works all of which were known to Lassalle. In an essay, which, moreover, bore the title, A Criticism of the Hegelian Philosophy of Right, Marx had referred to this in the Deutsch-französischen Jahrbücher of 1844. In 1846, in his book on La Misère de la Philosophie, he had clearly outlined it. In 1847, Marx and Engels had shown its practical application in the Communist Manifesto. Finally, in the Preface to his work Zur Kritik der Politischen Oekonomie [19] (1859), Karl Marx, referring specially to his first essay, had said “My investigation” – an investigation to which this essay was but the introduction” is summed up in the conclusion that legal relations and political forms are to be conceived neither from themselves nor from the so-called universal development of the human mind, but are found to be rooted in the economic life conditions ... It is not man’s consciousness that determines his being, but, on the contrary, his social being that determines his consciousness.” And although Lassalle was already acquainted with this book while he was still working at his System, although he speaks in the most enthusiastic terms about it to Marx [20], there is not a single line in Lassalle’s book that could be interpreted in the sense of the above. Ought Lassalle to be reproached on this account? That would be in the highest degree absurd. I note it for the purpose of criticising his standpoint, his method of conception. This, at the time, was still the ideologue-juridical one, as may be seen from his epistolary discussions with Marx on the theory of the law of inheritance set forth in the System of Acquired Rights.
It is abundantly clear from the above that Marx was bound to oppose Lassalle’s conclusions, since these were diametrically opposed to his own theoretical standpoint. What he replied to Lassalle can only be imperfectly gathered from Lassalle’s letters to Marx, but this much may be deduced, that the debate, which for the rest was not long carried on by letter, turned essentially upon Lassalle’s assertion that the Testament was only to be explained by Roman mythology, the Roman Idea of immortality, and that bourgeois economic development could never by itself have evolved the Testament unless it had found it ready to hand in the Roman law. And it is very characteristic to see how Lassalle, replying to questions put by Marx, and dealing with economic development, always ends by giving his answers an ideologue-juridical turn. The fundamental difference of the theoretical starting-points of the two thinkers comes out most strikingly in this correspondence.
And yet, to repeat it once again, the System of Acquired Rights, in spite of the false standpoint of his theory of history, remains a very notable achievement, and even for those who do not accept Lassalle’s theoretic standpoint, a very suggestive and delightful work.
1. Fichte’s Political Legacy and the Immediate Present.
2. i.e., local spirit.
3. Political Post Mortem.
4. System of Acquired Rights.
5. Probably syphilis.
6. When these statements of Mademoiselle Solutzew first appeared there were some who doubted the genuineness of them and of the letters of Lassalle which they contained. A German fifth or sixth rate penny-a-liner set himself to prove their apocryphal nature, to prove indeed that they were forged by the Countess Hatzfeld for her own honour and glory. But to anyone who knew the styles of Lassalle and Countess Hatzfeld, it is certain that even if the Countess had been foolish enough to plan the letters, she could never have been clever enough to write them. Further, in a legal action brought by Mademoiselle Solutzew, the genuineness of the letters was proved in court. I should not have mentioned this absurd canard except for the fact that the pamphlet of Kutschbach (the above-mentioned journalist) has induced an English writer of the position of Mr. Clement Shorter, to repeat this ridiculous story in his Preface to the new edition of Meredith’s Tragic Comedians. The “Lassalle Legend” has given rise to many silly statements, but to none more silly than the one that Lassalle’s last love affair was also his first. It is true the love affair with Sophie von Solutzew was not particularly interesting.
7. Life and Works of Lessing.
8. A Reconcilement of Positive Rights with the Philosophy of Jurisprudence.
9. The quotations are all from the Second Ed, of the System.
10. “folk-spirit,” i.e, “National spirit.”
11. See F. Engels’ Ursprung der Familie, des Privat Eigenthums und des Staats. Im Anschluss von Lewis H. Morgan’s Untersuchungen, 1st Ed., p.93.
12. About 450 BC.
13. Recent researches hate proved that ancestor-worship coincides amongst all people with the transition from the matriarch ate to the patriarchate.
14. The Romans, too, use the word familia not simply to denote the individual family, gathered into one house under one head, but also for the more or less loose union of the gentile group. A passage from Ulpian, quoted by Lassalle, explicitly distinguishes between the “familia” in the narrower sense (jure proprio) and the “familia” in the wider sense (communi jure). To the latter “all those belong ..., who have sprung from the same family and the same gentile group.” (See System etc., II, p.343.) To Lassalle the above passage is a further proof that the Roman law of intestacy was not a family inheritance. “For,” says he, among other things, “surely no one would represent the laws of inheritance of the gentile group as a family law of inheritance.”
15. The Theory of Acquired Rights, and the Conflict of Laws.
16. Lassalle also speaks strongly against the way in which in Prussia the Parliamentary representatives were constrained to grant compensation on the abrogation of exemption from the land tales, etc. He writes of a Bill, introduced by the Prussian Government, in 1859, that stipulated for such compensation: “When a Government has the incredible weakness to make such a proposal, it, in doing so, virtually renounces its right of sovereignty over the State, and if a Parliament could so far forget its duty as to entertain such a proposal out of consideration for this weakness, it would at least be acting far more logically if it there and then re-proclaimed the serfdom of the people to the land-owning nobility.” (I, p.210) What would Lassalle have said had anyone told him that thirty years later such “weakness,” and such “dereliction of duty,” would yet be valued national institutions in Prussia! It is true that at this time Lassalle was still sufficiently naive to write, that when the Corn Laws were repealed in England, the Tories bad not been so “shameless” as “to turn their investments in land – now unprofitable – into a right to compensation in the face of public opinion.” (I, p.208) Had he lived until our day he would have learnt that what the Tories lacked in 1846 was nothing but the really “practical Christianity,” which in modern Germany demands protective duties on corn, enactments that may fetter the agricultural labourer to the soil of the landowner, and the like, as the divine right of the large landlords. But what an irony of history that the work of bringing out the second edition of the System of Acquired Rights should have devolved upon none other than Herr Lothar Bucher, the faithful Adlatus of Prince Bismarck, a proficient in the art of “turning rights of compensation against public opinion.” Truly, we can but hope that in a future edition his “professional occupations” will not prevent Herr Lothar Bucher, the literary heir of Lassalle, from “demonstrating” how the System of Acquired Rights, might have been used or applied during the legislative discussions of recent years. (see the Preface to 2nd Edition.) [The full significance of the latter portion of this note will not be quite grasped by all English readers. It refers to a very dark episode in the history of modern Germany, and I do not propose to wash the dirty linen of others in public. Nevertheless, I feel bound to say in this volume what has just been said, and I must refer the reader who desires more information on the subject to the history of the Protective Duties and Taxation of Spirits in Germany.]
17. Lassalle is here referring to the thirty or more sovereign dynasties then existing in Germany.
18. Of course this relation must not be taken too mechanically. According to the law of action and reaction, all the religions, legal, etc., conceptions, everything, in a word, that one understands by the concept of Volksgeist, may again, in turn, exercise a great influence upon the form of the relations of production, e.g., they can within certain limits hasten or retard its development. And it is mankind after all who make their own history. But here we have to do with the final causes that underlie historical development.
19. A Criticism of Political Economy.
20. In a letter on the 11th September, 1860, he calls it a “masterpiece” that has “moved him to the profoundest admiration.”
Last updated on 21.1.2003