Rudolf von Jhering: Or Law as a Means to an End

Abstract

HE pioneer of the basic modern trends in jurisprudence was a German, Rudolf von Jhering. He might appropriately be called the Mark Twain of German jurisprudence. Gifted with a rare sardonic humor, he led the revolt against philosophical abstraction and conceptualism in German jurisprudence and the glorification of logic as a juristic method, which enabled the jurists to disguise the law as a system of legal mathematics. It so happened that this attack upon logical method in the law hit the basic evil of all nineteenth-century jurisprudence. The controversy raged about logic, but the real issue was a new social gospel whose acceptance was being prevented by false logic. Socialism was in the air but the jurists remained oblivious even of the need for social legislation which would bring about a socialization of the civil law. They simply persisted in applying logically the basic postulates of the individualist philosophy which had become established with the rise of capitalism. Jhering has been called the German Bentham, but the comparison is not apt for no other reason than that Jhering's creed was a social utilitarianism. He did not share Bentham's passion for codification, taking little or no interest in the drafting of the German Civil Code, which took place during his lifetime. Jhering was interested in function rather than formal definition. It seems strange that a social struggle should have been carried on in terms of a controversy over the place of logic in juristic method, but controversy in jurisprudence is always oblique. The first revival of commerce raised the issue of the reception of the Roman law because that system of law was far more advanced than Germanic law; the rise of capitalism was tied up with the movement for natural law, which afforded a means of rationalizing the Roman law; and it was to be expected that the demand for far-reaching social changes should lead to bitter discontent with a juristic method that was employed to give the basic institutions of the existing order an appearance of eternal and unalterable truth. Logic had always been the chief tool of jurisprudence from Gaius to Blackstone. It served well enough in periods of quietism, when there was no need to question the premises which underlay the logical deductions of the jurists. Logic, however, was bound to become the chief focus of attack in an age of rapid transition and change.