The Incident[1]

With a desire to remain faithful to the facts, I shall strictly adhere to what is contained in a work by Emilio Broglio entitled The Life of Frederick the Great, 2 vols., Milan-Naples 1874. Written with considerable literary panache and stylistic pretensions, the author intended it to be a tribute to the House of Savoia which was for him very closely associated with the House of Hohenzollern. This work contains the story of the miller Arnold Sanssouci and his struggle to obtain redress for the abuses that he had suffered at the hands of a certain nobleman, and it is here that we find the exclamation “there is still a judge in Berlin!” We are, therefore, dealing with a real matter which occurred during the reign of Frederick II of Hohenzollern, called the Great.

The mill where Arnold worked had been rented to his family for many generations and it belonged to the Count of Schietta. One day in 1770, Baron Von Gersdorf decided to build a fish tank and in order to do so he siphoned off a great part of the water that ordinarily went to operate the mill. As a consequence, the miller could no longer grind his wheat nor pay the rent for the mill and his family fell into indigence and faced possible starvation. In his desperate state, Arnold turned for help to various judges of different rank, but they all applied, as I shall explain below, the then existing norms in a blindly rigid manner – motivated probably by the hope of gaining special favors or gifts from the owner of the property – and always sided with the Baron. So, Arnold decided to turn to the supreme judge of the land, Frederick II, and made the long trip to Berlin. After examining the case, Frederick pronounced sentence in favor of the miller and condemned the previous judges to jail, although the accusations against them were never explicitly spelled out: incompetence or corruption.

A Possible Interpretation and an Invitation to Reflect

However, in the first place and with the intention of objectively weighing the above-mentioned facts, one cannot overlook the truth that the various judges who heard the miller’s case were really doing nothing more than applying the law as it existed back then and which can be summarized in the classic Latin principle neminem laedit qui suo iure utitur (he who exercises his own right does no harm to anyone). This means, essentially, that nobody can be held responsible or considered guilty on a civil or criminal level in the usual exercise of his rights even if by so doing he causes damage to someone else. On this basis, the judges decided that the Baron who owned the property was doing what the law permitted and that, therefore, the miller had no case against him. Hence, from the record, it “seems” that the King, in making his decision about the controversy, did not in this specific case submit himself to any existing principle or written juridical norm; rather, he acted quite “arbitrarily” or wrongly – at least in respect of the prevailing positive law – even though his decision was the correct one. This at least “seems” to have been the majority opinion at the time. At this point, however, the reader might rightly ask: on the basis of whom or what can we conclude that the King’s decision was correct?

It was correct for two reasons, both objective and verifiable from the actual record. The first reason can be found in the Roman law itself, which placed a limit on how far someone could exercise his rights; this limit was expressed in another very important legal axiom known as neminem laedere (do not harm to anyone) which, therefore, prohibited every abuse even when exercising one’s own right: qui iure suo abutitur alterum laedit (whoever abuses his own rights harms another). Precisely for this reason ancient Roman law also provided for what is known as exceptio doli; that is, an exception whereby a defendant can raise the defense that the plaintiff has not acted in good faith (this exception is found implicitly in the Italian Constitution, arts. 2 and 41). It was, perhaps, because of the non-application of this legal principle by the various judges to the miller’s case, that Frederick II came to the conclusion that they were corrupt. How else could they all have ignored such a principle and its connection with the others? The second reason, which in a way establishes and justifies the first reason on a moral level (apart from and with all due respect to the Kantian school), consists in the fact that, in reality, there is a hierarchy of rights belonging to persons. It is impossible not to acknowledge this hierarchy, even if we prefer to remember it only when it is necessary as has happened in some very interesting cases during the twentieth century. In fact, in the case which interests us here, the miller, lacking a source of income for his family, was unable to provide a decent life for himself and his loved ones without taking certain risks. On a moral level, therefore, as the right to life, in those days exactly as today, prevails over the right to private property, this latter right has to give way to a superior right which was and still is the right to life of a human person.

Conclusion … In Order to Continue to Think

From what we now know, the intervention of Frederick II raised quite a few eyebrows at the time and, as usual, public opinion was divided between those who accused him of acting illegally and arbitrarily, and those who praised him as an “enlightened monarch”, a champion of justice against corrupt or, at least, ignorant and obtuse judges. In truth, Frederick II resolved the miller’s case in a most competent fashion, in the light of those juridical principles that are simply the manifestation and the translation of a need of human nature, regarding the life, dignity, and freedom of one’s neighbor. Beyond all this, however, what lesson can we learn today from the case that I have tried briefly to explain? I can offer only what I have learned personally and what I have taught my students about the philosophy of law in these past twenty-three years. Law and justice are not abstract, bloodless concepts. They are born from a passionate concern for man, they touch the quality of people’s lives; they are not mere logical or calculating systems which require unbending fidelity to venerable axioms and rigid proceedings. They require attention to the true good of the person who lives with his equals in that social dimension which is proper to all of us. In a very real way they are “self-imposed”. Only in this manner can we recognize the needs and the principles which regulate human living as well as the rules which are consequently understood and followed for what they really are: the possibility for me to freely inter-act with others while respecting their and my own dignity. This attention has always been a distinctive note of canon law tradition according to that aequitas which finds its justification in the Gospel (Matt. 7:12; Mk. 2:23-28), not limiting itself to the old “to each his own” or to the old “mine and thine”, but entering into an “I and you” relationship. It is not simply a question of a frigid and correct way of proceeding, a disincarnate application of norms without any due distinctions and without linking them together according to concrete cases and persons. The foolish ethical and juridical subjectivism of our day must not forget that the sacred freedom of every person has an impassable physiological limit which cannot be ignored regarding the duties of that person towards others, his so-called social interests which are common to everybody, even to those who wish to delude themselves into thinking otherwise. This is why no principle or natural law recognized by the Constitution of any nation may ever be invoked to nullify another right of equal or superior value.

We must all undoubtedly deepen our knowledge of these arguments, trying not to listen to our gut (or even some other “part of the body” as somebody once told me), but rather trying to honestly discover what is the right thing to do, not only for me but also for my neighbor. We must make an effort to overcome that adolescent attitude which sees freedom, the law, everything that is said or every rule and norm as an imposition or as a diktat that coerces one’s liberty. We must enter finally into adulthood where we will discover that we can truly be free only with and for the others, that the rules exist for the good of everyone, and that if we live together with the others we cannot do so without showing respect to them, beginning with the respect for the truth about ourselves, of whom we are mere stewards. This mental change, though, in thinking about the law implies a “crisis” or suffering similar to what happens in the physical life of a girl who becomes a woman or a boy who becomes a man; a change which is not merely a question of chronology or biology, but which consists above all in the ability to assume one’s responsibilities and discover that one not only possesses rights, like small children who sometimes irrationally pretend that everything is due to them, but also duties, the fulfillment of which constitutes true adulthood.

These are somewhat intricate considerations which, however, interest all of us and deserve constant reflection. For the moment, I think that this is sufficient in order to become better aware of the need for a real judge not only in Berlin, but always and everywhere. And, in the end, there will appear a Real Judge who will surely not be an executioner, but a “Parent”. This, though, is a story for another day.

Basilica Shrine of Santa Maria del Sasso, Bibbiena (AR), January 27, 2022

Fr. Bruno, O. P.

Sincere thanks to Fr. Alfred White, O. P., for the English translation and to Dott. Maurizio Ragazzi for the help.

[1] The affirmation “There is still a judge in Berlin”, of the miller who hoped that someone would render him justice is one of those many “urban legends” which today – thanks to its constant evolution and diffusion like wildfire on the internet – we quite rightly call fake news and which, at least in the beginning, almost everybody believes. The same is the case for another affirmation which is known, perhaps, only to very few people: “Repeat a lie a hundred, a thousand, a million times and it will become the truth“. This well-known aphorism has always been falsely attributed to Joseph Goebbels, but it was most probably used originally by The Office of Strategic Services of the United States, in order to create a psychological profile of Adolph Hitler who was convinced that: “concentrate on one enemy and blame him for everything that goes wrong; people will believe a big lie sooner than a little one; and if you repeat it frequently enough people will sooner or later believe it”. In fact, “There is still a judge in Berlin” is certainly the fruit of a literary invention, which has been falsely attributed to B. Brecht because of another false attribution on the part of the German writer P. Hacks, who declared himself to be inspired by the author of The Life of Galileo (written by Brecht in 1938-1939) when in 1958 he wrote his Der Muller von Sanssouci: ein burgerliches Lustspiel (The Miller of Potsdam: a middle class comedy), which was the basis for the silent film: The Miller of Sanssouci in 1926.

In any case, what interests me here is not so much the historical veracity of the story, but the desire to propose it – as is generally done when teaching the philosophy of law – with the intention of underlining its importance for every person who lives in our society and in order to correctly understand the meaning of its various juridical norms. This is necessary for its rational application on an individual and communitarian level, and for its relevance not only regarding those who are interested in it as ex professo jurists, but also regarding those ordinary citizens of this world who are interested in its value – today more than ever – for extricating themselves from populist diktats, which declare that each individual has an unlimited, infinite and justicialist freedom which is itself nourished by a rather myopic juridical formalism and which negatively conditions individuals and communities. We have only to think of the Nuremberg trials or the sentences handed down by the International Criminal Tribunal for the former Yugoslavia, for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, and today regarding the problems of the pro-vax versus anti-vax; and there are cases that directly concern individuals, but that also indirectly carry social implications such as the very recent case of the Serbian tennis player Novak Djokovic. It seems to me that we are forced to agree with the French philosopher G.E. Debord (1931-1994) when he writes that our epoch is witnessing more and more in the personal lives of people (not to mention their public ones…) an unpleasant show, in a world that is being rapidly transformed into a theatrical stage.