The idea of equality, both in its bourgeois and in its proletarian form, is therefore itself a historical product, the creation of which required definite historical conditions that in turn themselves presuppose a long previous history. It is therefore anything but an eternal truth. And if today it is taken for granted by the general public -- in one sense or another -- if, as Marx says, it "already possesses the fixity of a popular prejudice", [52] this is not the effect of its axiomatic truth, but the effect of the general diffusion and the continued appropriateness of the ideas of the eighteenth century. If therefore Herr Dühring is able without more ado to let his famous two men conduct their economic relations on the basis of equality, this is so because it seems quite natural to popular prejudice. And in fact Herr Dühring calls his philosophy natural because it is derived solely from things which seem to him quite natural. But why they seem natural to him is a question which of course he does not ask.
XI.
MORALITY AND LAW.
FREEDOM AND NECESSITY "I n the sphere of politics and law the principles expounded in this course are based on the most exhaustive specialised studies. It is therefore ... necessary to proceed from the fact that what we have here ... is a consistent exposition of the conclusions reached in the sphere of legal and political science. Jurisprudence was my original special subject and I not only devoted to it the customary three years of theoretical university preparation, but also, during a further three years of court practice continued to study it particularly with a view to the deepening of its scientific content... And certainly the critique of private law relationships and the corresponding legal inadequacies could not have been put forward with such confidence but the consciousness that all the weaknesses of the subject were known to it as well as its stronger sides" {D. Ph. 537}.
A man who is justified in saying this of himself must from the outset inspire confidence, especially in contrast with the "one-time, admittedly neglected, legal studies of Herr Marx" {D. K.
G. 503}.
And for that reason it must surprise us to find that the critique of private law relationships which steps on to the stage with such confidence is restricted to telling us that "the scientific character of jurisprudence has not developed far" {D.
Ph. 222-23}, that positive civil law is injustice in that it sanctions property based on force {219} and that the "natural basis" of criminal law is revenge {224}, -- an assertion of which in any case the only thing new is its mystical wrapping of "natural basis". The conclusions in political science are limited to the transactions of the famous three men, one of whom has hitherto held down the others by force, with Herr Dühring in all seriousness conducting an investigation into whether it was the second or the third who first introduced violence and subjection {265-66}.
However, let us go a little more deeply into our confident jurist's most exhaustive specialised studies and his erudition deepened by three years of court practice.
Herr Dühring tells us of Lassalle that he was prosecuted for "inciting to an attempt to steal a cash-box"but that "no sentence by the court could be recorded, as the so-called acquittal for lack of evidence , which was then still possible , supervened ... this half acquittal" {D. K. G. 510}.
The Lassalle case referred to here came up in the summer of 1848, before the assizes at Cologne, [53] where, as in almost the whole of the Rhine Province, French criminal law was in force. Prussian law had been introduced by way of exception only for political offences and crimes, but already in April 1848 this exceptional application had been abrogated by Camphausen. French law has no knowledge whatever of the loose Prussian legal category of "inciting" to a crime, let alone inciting to an attempt to commit a crime. It knows only instigation to crime, and this, to be punishable, must have been committed "by means of gifts, promises, threats, abuse of authority or of power, culpable incitements or artifices" ( Code penal , art. 60). [54] The Ministry of State, steeped in Prussian law, overlooked, just as Herr Dühring did, the essential difference between the sharply defined French code and the vague indefiniteness of Prussian law and, subjecting Lassalle to a tendentiously conducted trial, egregiously failed in the case. Only a person who is completely ignorant of modern French law can venture to assert that French criminal procedure permitted the Prussian legal form of an acquittal for lack of evidence, this half acquittal;criminal procedure under French law provides only for conviction or acquittal, nothing between.
And so we are forced to say that Herr Dühring would certainly not have been able to perpetrate this "historical depiction in the grand style" {556} against Lassalle if he had ever had the Code Napoléon [55] in his hands. We must therefore state as a fact that modern French law, the only modern civil code, which rests on the social achievements of the great French Revolution and translates them into legal form, is completely unknown to Herr Dühring.
In another place, in the criticism of trial by jury with majority decision which was adopted throughout the Continent in accordance with the French model, we are taught:
"Yes, it will even be possible to familiarise oneself with the idea, which for that matter is not without precedent in history, that a conviction where opinion is divided should be one of the impossible institutions in a perfect community {D. Ph. 402} ... This important and profoundly intelligent mode of thought, however, as already indicated above, must seem unsuitable for the traditional forms, because it is too good for them {D. Ph. 403}.
