Page:American Journal of Sociology Volume 9.djvu/527

Rh does not serve the ends of conflict; whereas, otherwise, even in the most savage struggles, something subjective, some pure freak of fortune, some sort of interposition from a third side, is at least possible. In the legal struggle everything of the kind is excluded by the matter-of-factness with which the contention, and absolutely nothing outside the contention is kept in view. This exclusion from the judicial controversy of everything which is not material to the conflict may, to be sure, lead to a formalism of the struggle which may come to have an independent character in contrast with the content itself. This occurs, on the one hand, in the legal cabalistic, in which real elements are not weighed against each other at all, but only quite abstract notions maintain controversy with each other. On the other hand, the controversy is often shifted to elements which have no relation whatever to the subject which is to be decided by the struggle. In case legal controversies, accordingly, in higher civilizations, are fought out by attorneys, the device serves to abstract the controversy from all personal associations which are essentially irrelevant. If, on the other hand, Otto the Great ordains that a legal controversy shall be settled by judicial duel between professional fighters, there remains of the whole struggle of interests only the bare form, namely, that there shall be struggle and victory. This alone is, in the latter case, common between the struggle which is to be decided and the fighter who is to decide it. This latter case portrays, in the exaggeration of caricature, the reduction and limitation, here in question, of the judicial conflict to the mere struggle element. But precisely through its pure objectivity, because it stands quite beyond the subjective antitheses of pity and cruelty, this unpitying type of struggle, as a whole, rests on the presupposition of a unity and a community of the parties never elsewhere so severely and constantly maintained. The common subordination to the law, the reciprocal recognition that the decision can be made only according to the objective weight of the evidence, the observance of forms which are held to be inviolable by both parties, the consciousness throughout the whole procedure of being encompassed by a social power and order which are the means of giving to the procedure its