Jhering's Philosophy of Authority

Abstract

This article offers a critical reassessment of the jurisprudence of Rudolf von Jhering. During the 20th century, Anglo-American legal philosophers who drew inspiration from Jhering's work usually lauded him either as a German forerunner to American legal realism or as an early proponent of a jurisprudence of interests. These representations of his work do not do justice to Jhering's jurisprudential project. This study demonstrates that he sought to explain how legal systems originate and how they maintain authority. It is shown that his explanation of legal authority depends not only upon familiar jurisprudential notions such as reciprocity and positional duty, but also upon the concept of Rechtsgefuhl—namely, the idea that authority is conditioned by citizens’ feelings of what is right or just. Jhering, it is demonstrated, believed that the authority of a legal system depends very much on its ability to negotiate and accommodate struggles based upon feelings of right—struggles between citizens, between citizens and State, and between States. It is also argued that the manner in which Jhering relies on the idea of Rechtsgefuhl undermines the received wisdom that he was an interest theorist.