Jurisprudence of Interests, European

Spread and Development of Jurisprudence of Interests

Sometimes influenced by Jhering, sometimes independently, several scholars in various countries soon expressed similar ideas. In the United States, Oliver Wendell Holmes (1841–1935) propagated the important role of social needs and interests in The Common Law(1881). Arthur Bentley (1870–1957) referred to it in The Process of Government (1907). Roscoe Pound (1870–1964) incorporated the idea into his concept of sociological jurisprudence and Benjamin Cardozo (1870–1938) into his Nature of the Judicial Process (1921).

In France, Franc¸ois Gény (1861–1959) expressed roughly equivalent notions in Méthode d'interpretation et sources en droit privé positif (1899, Method of Interpretation and Sources of Private Positive Law). Gény's thought was also closely related to free law and, more generally, the concept of the law's social function (fonction sociale), much discussed at the time. In Germany, Philipp Heck (1858–1943), Max Rümelin (1861–1931), and others developed their own version of this jurisprudence. Although there were many differences among them, all of these approaches to jurisprudence emphasized the need to pay close attention to social realities (specifically, interests and needs) and, consequently, conceived of law primarily as a social (rather than a logical) science.

When the approach of jurisprudence of interests first emerged, its ideas were almost revolutionary; today, its basic assumptions and postulates have become accepted in most Western legal cultures, albeit to varying degrees. Therefore, it helped to overcome nineteenth-century conceptualism (particularly in the United States) or at least to temper it with a healthy dose of pragmatism (as is the case in most of continental Europe).

German Jurisprudence of Interests

German jurisprudence of interests was part of the broader phenomenon but consisted of a much more specific approach: Interessenjurisprudenz was a distinct method of statutory interpretation and application. Developed in the early twentieth century by the so-called Tübinger Schule (Tübingen School, led by Phillip Heck) and others, it built on Jhering's assumption that law, and especially legislation, reflected the outcome of competition between conflicting interests. Yet, Interessenjurisprudenz proper was neither a general theory of law nor a recipe for lawmaking (as were Holmes's and Pound's approaches).

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