Chapter 32: Rudolf von Jhering (1818-92) and the economy of justice
J.L.M. Elders Rudolf von Jhering was a German legal scholar who departed from the dominant legal science of his time. His first writings were still influenced by the conceptualist jurisprudence in his country, the so-called ‘Begriffsjurisprudenz’. In his main work, Der Zweck im Recht, however, published in two volumes between 1877 and 1883 and translated into English under the title ‘Law as a means to an end’, von Jehring developed a social utilitarian principle, maintaining that purpose in law is as important as cause in the physical world. While, according to the 19th-century historic school of jurisprudence, law has to be regarded as a mainly irrational code of conduct, law was found, not made, and legislation was less important than custom, von Jhering stressed the fact that man, in order to survive, needs assimilation. In his famous study about the spirit of Roman law (Geist des romischen Rechtes) von Jhering defined Roman law as the system of disciplined ego(t)ism, a concept that was to be developed further in his last work as we will see. The main thesis in his last study is that purpose has to be regarded as the source of all law. Therefore, the legal system has to deal with social reality. In this connection we can also mention the proposition of H.S.A. Hart in his The Concept o Law (Oxford, 1961), where he says: ‘Given survival as an aim, f law should have a specific content’ (p. 189)’. Von Jhering based his theory...
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