Jhering, Rudolf Von (1818–1892)

Rudolf von Jhering was one of the most renowned German Pandectists in German-speaking lands, teaching at several German universities as well as in Basel and Vienna. His life spanned the nineteenth century, from the peaceful Biedermeier period to the industrialization of Germany, unified by Otto von Bismarck as the German empire in 1871. He believed that for a society undergoing such sweeping political and social changes, Roman law was insufficient; the usus modernus pandectarum could no longer remedy the revealed gaps in the law.

Such historical changes led Jhering to replace the systematic reconstruction of Roman law, typical of the Pandectists, with a realistic consideration of law. Therefore, the shift from the “early” to the “late” Jhering marked a paradigmatic change in German legal science. The “jurisprudence of concepts” advocated by the Pandectists (suitable for an agrarian society) was superseded by sociological jurisprudence, which focused on the needs of the industrial society that had emerged. This connection between law and society is the aspect that has preserved today's interest in the “late” Jhering.

His change was radical but not abrupt. Some scholars tend to underline Jhering's continuity rather than his breaks. He had two visions of the law, however, and for this reason, some make a distinction between the early and the late Jhering. These different evaluations depend on the methods used in studying Jhering. If one considers his works from a historical viewpoint, they reveal a troubled and gradual evolution, a migration from the “sky of concepts” to the real world. However, if one considers them from a synchronic or analytical viewpoint, the change in paradigm appears to be obvious.

Because of this change, his major works remained unfinished. Jhering's projects were grand, but he often had to finish a publication whose theoretical basis was no longer acceptable to him. His main work on Roman law,Geist des römischen Rechts (Spirit of the Roman Law), ran to four volumes, on which he labored from 1852 to 1865. During those years, Jhering gradually developed his new vision of the law. Therefore, the work contains both praise for the Pandectists' systematic “construction” and radical criticism of such a position, one that Jhering abandoned completely in 1865. He then wanted to devote himself to a theory of Darwinian inspiration. The result was Der Zweck im Recht(Law as a Means to an End), written in the years 1877 to 1883. It is another unfinished work, especially in its treatment of the core concept of an “end.”

In 1857, Jhering, together with Karl Friedrich Gerber (1823–1891), started editing the journal Jahrbücher für die Dogmatik des heutigen römischen und deutschen Privatrechts. His opening article, entitled “Unsere Aufgabe” (Our Task), outlined the program of “naturalistic jurisprudence” (naturhistorische Jurisprudenz). Jhering wrote this manifesto of sociological jurisprudence while he was working, with increasingly less conviction, on the second volume of Geist.

One of the few books that Jhering completed bears the Darwinian title of Der Kampf ums Recht(The Struggle for Law, 1872). His core thesis was that one should never waive any right, even the smallest one, because only by fighting for one's own rights could one affirm those same rights for others. Some misunderstood this work, maintaining that it favored aggressiveness and approval of the human inclination to fight that was typical of European dictatorships. Other scholars felt that that the work was a stimulus to [Page 840]fight for the rule of law and against the arbitrary approach of dictatorships.

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