Critique of the Pandectists: Naturalist and Marxist Opposition
Some nineteenth-century thinkers were more cautious about excluding human and social conditions from juristic theory or else openly opposed the Pandectists. Among them a naturalistic school of thought urged jurists to take greater responsibility for examining what “nature” knew and produced.
Rudolf von Jhering (1818-92) was a leading figure in this movement. One of his works was a clever and well-received book made up of the “Confidential Letters of an Anonymous Correspondent on Contemporary Juridical Science,” addressed to the editors of the Preussische Gerichtszeitung.[26] These letters were published in book form, along with other pieces, under the ironic tide The Serious and the Facetious in Jurisprudence (Scherz und Ernst in der Jurisprudenz). The work launched a major critical debate on the “dogmas” of the Pandectists.[27]
An example may perhaps clarify the sense of Jhering5S “joke.” Jher- ing imagines a peasant riding on a cart loaded with manure or-hay, and he pictures the man’s joy as he heads for home. What have we “in nature” here, he asks rhetorically, if not the placid presence of the countryman on the cart and the skilled hand that guides the horses. We have, the jurists reply, revealing their different appreciation of the “serious” and the “facetious,” the legal construct of “ownership” or “property,” because one must qualify juridically the relation between the man and his cart and the load on his cart, and one must ascertain whether that cart and that manure or that hay are “the peasant’s” and in what sense they are “his”—by ownership, by possession, or by detention. Animus domini is needed in order to establish that they are “his” by possession; otherwise the construct of ownership cannot become embodied in the real situation under examination.
At this point the jurist risks losing heart, and Jhering makes his point by treating the question as a “joke”: cWhat would you do, on seeing two carts loaded with manure or hay... to discern whether one is guided by a detentor and the other by a possessor!”2* Jhering points out that the question was no joke for “poor Habermaier,” who for lack of unimus domini lost his lawsuit and “373 thalers and small change.”[28] [29]The example illustrates the concerns of a theorist with doubts about the “completeness” of the theoretical legal construct and its adequacy to represent facts taken from nature; a theorist who, without renouncing the use of theoretical instruments (or “seriousness”), nonetheless seeks to use irony and facetiousness to comprehend the “nature” that lies beyond theory. Jhering developed this point of view in two weighty tomes written during the same years,DerKumpfurn's Recht (The Fight for the Law; 1872) and Der Zweck im Reeht (The Purpose of the Law; 1877-84), works that offered “a consideration of the law as an instrument for the affirmation of power and interests”— a dramatic conclusion if we think of the individual who expected guidance and justice from the law.[30]
Jhering5S critique launched a new way of constructing legal reasoning on the basis of an evaluation of the interests involved, henceforth held worthy of inclusion among the things considered juridically relevant, not as the “goal” of the law but as its “object.” The resulting “jurisprudence of interests” became a symbol and a banner for jurists who attempted to give juridical relevance to aspects of reality that the sometimes exaggerated formalism of the Pandectists had excluded from juridical observation.
A reliable hermeneutic criterion for the resolution of problems of interpretation emerged from this new position: beyond the literal dictates of the law and beyond the formal aspects of the legal construct used, one must look to the real interests involved and must evaluate those interests within the context of elements that, because they were juridically relevant, could point the way to a solution.
A second new development was more disruptive because it did not arise from within Pandectist thought and was not an autonomous and critical stage in the development of that thought. As a theoretical position that denied and radically contested the entire panorama of the dominant juridical culture, including both Pandectist thought and the critique OfPandectist thought, it found expression in the Zur Kritik (Ur Politischen Okonomie (1859) and Das Kapital (1867-72) of Karl Marx (1818-83), the fundamental texts of Marxist thought, which had been preceded (in 1848) by the famous CommunistManifesto of Marx and Friedrich Engels.
Marx stated that the entire sector of private law was destined to dissolve because the state must penetrate and regulate private life, thus blocking the autonomy of the private individual and eliminating the entire network of private-law institutions that typified that autonomy and also eliminating “freedom” of choice and the power connected with freedom of choice. For Marx, liberty and power were mere abstractions, since both “liberty” and “power” either meant something totally different in the abstract and in the real world or had no concrete existence. This was a direct challenge to the legal constructs that were both paradigmatic in the Western tradition and fundamental to the juridical structure willed and defended by the triumphant bourgeoisie in the nineteenth century: private property, the contract and legal transactions in general, obligations entered into voluntarily and by negotiation, the regime and the very idea of succession mortis causa, and the entire field of commercial law.
Anatole France gave a clear illustration of how, in Marxist thought, “freedom” and “power” (to transact, to exercise real rights, to inherit, and so forth) must be negated conceptually as inadequate to represent reality, and how they must even be considered as dangerous for the dominated classes as they were useful for the dominant class.[31] He had a revolutionary poet comment sarcastically that the new laws guaranteed “the majestic egalitarianism of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread”—a highly ironic statement, given the improbability that any rich man would have the least desire to sleep under a bridge (even in Paris) or to beg in the streets for his daily bread.
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