Duhring, like Marx, had studied jurisprudence at university. Unlike Marx, he had practised law for three years. On this basis, in applying his method to this sphere, professes that it is based on the most exhaustive, specialised studies. In which case, Engels notes,
“it must surprise us to find that the critique of private law relationships which is advanced with such confidence is restricted to telling us that
“the scientific character of jurisprudence has not got very far”, that positive civil law is non-law in that it sanctions property based on force and that the “natural basis” of criminal law is revenge
an assertion in which in any case only the mystical wrapping thing of its “natural basis” is new” (p 136-7)
Starting from his two-man basis of society, and its need to posit a third, so as to form majority decisions,
“The conclusions in political science are limited to the transactions of the familiar trio, one of whom has done violence to the others, with Herr Dühring in all seriousness conducting an investigation into whether it was the second or the third who first introduced violence and subjection.” (p 137)
Duhring cites the proceedings brought against Lassalle, for ““inciting to an attempt to steal a cash-box” but that “no court sentence could be recorded, as the so-called acquittal for lack of evidence, which was then still possible, supervened ... this half acquittal”.” (p 137)
The background to this case is given by Engels, who sets out that it occurred in 1848 at the Assizes in Cologne, where French criminal law was in force. The French legal code had no category of “inciting” to a crime, which was a feature of the Prussian Landrecht. In French law, there was only the category of instigating a crime, which, itself, required the use of gifts, payments, promises or threat by the instigator. In the case of Lassalle there was no such behaviour. It was rather like the use of Conspiracy Laws, in Britain, used against trades unionists and others, for example with The Shrewsbury Two – Ricky Tomlinson and Des Warren – who were accused of conspiracy not to commit an illegal act, but merely of conspiracy, which is itself illegal! The current relevance of this is also clear, with the laws in relation to “thought-crimes”. Claims by the police, for example, that merely carrying or displaying a Palestinian flag is “anti-Semitic”, and so on.
“The Ministry of State, steeped in the Prussian Landrecht, overlooked, just as Herr Dühring does, the essential difference between the sharply defined French code and the vagueness and indefiniteness of the Landrecht and, subjecting Lassalle to a tendentious 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 Landrecht form of acquittal for lack of evidence, this half acquittal; criminal procedure under French law knows only conviction or acquittal, nothing in between.” (p 137-8)
It seemed clear, then, that for all his detailed study, Duhring did not understand the Code Napoleon, if he had even read it. Engels turns to another deficiency in Duhring's legal studies. Across Europe, in contrast to Britain and other Anglophone countries, trial by jury was based on majority decisions. Duhring wrote,
“Yes, it will even be possible to familiarise oneself with the idea, which for that matter is not without historical precedent, that a conviction where opinion is divided should be one of the impossible institutions in a perfect community ... However, as already indicated above, this serious and profoundly intelligent mode of thought,, must seem unsuitable for the traditional forms, because it is too good for them” (p 138)
Duhring, therefore, seemed unaware of this difference with English Law, where unanimous verdicts by juries had been required from the 14th century onwards, “not only for convictions in criminal cases but also for judgments in civil suits. Thus the serious and profoundly intelligent mode of thought, which according to Herr Dühring is too good for the present-day world, had legal validity in England as far back as the darkest Middle Ages, and from England it was brought to Ireland, the United States of America and all the English colonies.” (p 138-9)
The proportion of the globe where unanimous jury verdicts were required was far greater than that of the Prussian Landrecht, or all the other places where majority decisions sufficed. So, Duhring, for all his exhaustive study seemed unaware both of French Law as the only modern system of law, and of English Law, itself the only Germanic Law that had developed independently of Roman Law.
“But when a person undertakes to compose a philosophy of law for all worlds and all ages, he should at least have some degree of acquaintance with legal systems like those of the French, English and Americans, nations which have played quite a different role in history from that played by the little corner of Germany in which Prussian Landrecht flourishes.” (p 140)
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