ch 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, when 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. Where 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 latter case portrays, in the exaggeration of caricature, the
reduction 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 significance and security--all this
makes the legal controversy rest upon a broad basis of community and
consensus between the opponents. It is really a unity of a lesser degree
which is constituted by the parties to a compact or to a commercial
transaction, a presupposition of which is the recognition, along with
the antithesis of interests, that they are subject to certain common,
constraining, and obligatory rules. The common presuppositions, which
exclude everything that is merely personal from the legal controversy,
have that character of pure objectivity to which, on its side, the
sharpness, the inexorableness, and the absoluteness of the species of
struggle correspond. The reciprocity between the dualism and