Part Three: Lawyers Defend Rights, Bravely Challenging the Legal Affairs Office — The Ultimate Revelation of the "Sea Palace" Case (Serial 26)
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[2] Asserting rights is a spiritual duty of self-protection; completely abandoning rights is spiritual suicide.
—Jhering, The Struggle for Law
1. Introduction
The German legal thinker Jhering pointed out in his famous work *The Struggle for Law* that all rights face the danger of being violated and suppressed, because the interests asserted by the right-holder often come into conflict with the interests of others who deny such assertions. Therefore, the precondition for enjoying rights lies in being constantly prepared to assert them; to realize rights, one must always be ready to struggle for them. Jhering was deeply averse to the view of another German legal thinker, Savigny, who held that "the formation of law, like the formation of language, occurs unconsciously and develops spontaneously and naturally, without any contention or struggle." Jhering reminds us not to complacently immerse ourselves in the illusion of a so-called "spontaneous and self-generating evolutionary order," but rather to rely on struggle to fight for rights and to summon the law. In a fog of fear and dread, ever more people joining the ranks of struggle is the only way to save oneself and, in turn, to save others. Jhering said, "The goddess of justice holds in one hand the scales, which measure rights, and in the other the sword, prepared for the assertion of rights. A sword without scales is naked violence; scales without a sword signify the weakness and vulnerability of the law. The scales and the sword are mutually dependent—where the goddess of justice wields the power of the sword in balance with the skill of operating the scales, there precisely lies the state of sound law."
Jhering asserts that the struggle for rights is not only the right of any citizen who asserts their own interests, but also a duty of the citizen. In Jhering's view, self-preservation is the supreme law of the entire biological world, and every living being possesses the instinct for self-maintenance. For human beings, self-preservation concerns not only natural life but also moral existence; however, the prerequisite for a person's moral existence is rights, and asserting one's rights is the self-preservation of one's personal morality. It is precisely on the basis of this understanding that Jhering further ardently extols the love of litigation. In his view, a peasant who engages in tedious litigation to assert ownership of even a single piece of land—even if doing so is entirely not worth the cost—deserves affirmation. For the purpose of their litigation is not the object of negligible value, but rather the aim of asserting their complete personality as a free person and their sound "sense of right" (a term Jhering uses to denote a particular attitude of faith in and reliance upon the law). Compared with this purpose, all the sacrifices and toil brought by litigation are utterly insignificant to the right-holder—for the end has fully compensated the means. Even Shylock in Shakespeare's *The Merchant of Venice*, scorned and mocked, becomes, by uttering the words "I want the law," a man "powerful and majestic"!
Moreover, struggling for one's rights is not only a duty of the right-holder to oneself; asserting one's rights is at the same time a duty to the community. This concerns the relationship between rights and law: a concrete right not only derives its life and strength from abstract law, but it also in turn gives life and strength to abstract law. The essence of law lies in its actual enforcement. If, owing to the right-holder's indolence or fear, the rights in a specific legal relationship are left unexercised for a long time and as a general rule, then the legal norm prescribing such rights is itself rendered paralyzed. It may be said that the right-holder, by asserting his rights, upholds statutory law, and thereby, by upholding statutory law, defends the legal order that is indispensable to the collective of humanity.
In other words, it is not impermissible under the law itself for a person to relinquish their rights. After all, rights are merely a freedom of choice, and the party concerned may, based on their own judgment, choose either to abandon rights for the sake of peace or to sacrifice peace for the sake of rights. However, when examined from a utilitarian perspective in terms of social impact, the act of relinquishing rights becomes highly dangerous. For when such conduct becomes a widespread social phenomenon, it undoubtedly condones and encourages illegal behavior, severely challenging the authority of the law itself. The functions of the law will fail to be realized, and social order will be difficult to maintain effectively.
During the compilation of this book, the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China issued a decision to comprehensively advance the rule of law, reflecting the inertial trend of promoting the rule of law from the top down with Chinese characteristics. However, this is merely an outward appearance. What truly drives the progress of the rule of law in China is a social factor: the extensive differentiation of interests in contemporary Chinese society, where these differentiated interests are constantly engaged in intense competition and struggle with one another. The competition and struggle among interests are essentially the competition and struggle between different rights, as well as between rights and power. Fighting for interests is fighting for rights. When lawyers accept the mandate of one party and participate in the competition and struggle among interests, they on the one hand amplify the intensity of such competition and struggle, and on the other hand channel the competition and struggle among mutually conflicting interests onto the track of the rule of law. The mutual competition and struggle of different interests is the true driving force behind the advancement of the rule of law in our society, and lawyers are the key force that can enable this driving force to play a positive and constructive role in the progress of the rule of law.
As lawyers who are important members of the legal community, many of us may have encountered Jhering's doctrine of "struggle for rights" during our legal education and training. However, few lawyers truly grasp the essence of the "struggle for rights" philosophy and unwaveringly practice it in every aspect of their professional life and work. Attorney Wang Tengfeng strictly positions himself as a litigation lawyer, often taking pride in his litigation artistry, strategic acumen, and courtroom advocacy skills, even going so far as to somewhat radically argue that non-litigation work is not the proper business of lawyers. You may consider him somewhat arrogant, or you may think his views do not align with modern legal service awareness, but if you come to understand him deeply, you have to admit that Attorney Wang Tengfeng is an unyielding fighter for rights and a guardian of the law. Struggling for rights is almost his entire life—both for his clients and for himself. Attorney Wang Tengfeng's steadfast and persistent spirit of the rule of law is evident in his service to clients, demonstrating extraordinary "legal power," often turning the tide, rescuing people from peril, and achieving countless victories. When it comes to defending his own rights, he likewise disregards conventional propriety, placing the law above all, and forging ahead without hesitation until rights are vindicated and the rule of law is upheld!
(To be continued)
