The jurisprudence of interests

If Savigny was the most eminent German jurist of the first part of the nineteenth century, Rudolph von Jhering (or Ihering, 1818-92) was probably the most eminent jurist of the second part of the nineteenth century.

The revival of Roman law 103 originally a pandectist, Jhering moved away from pandectism to provide a sociological explanation of the evolution of Roman law.

A native of Aurich in Frisia and professor of Roman law in Giessen (1852), Vienna (1868) - where the emperor knighted him - and Gottingen (1872-92), among others - Jhering represents a radical and innovative methodological turning point from conceptual imagination to social realism, especially in relation to the doctrines of Savigny and Puchta. An energetic man with great intuition and a deep sense for the practical role of the law, Jhering attracted the general public with enthusiastic lectures and provocative contributions in journals on legal current issues. In one of his masterpieces, Der Geist des romischen Recht [The spirit of Roman law, 1852-65], Jhering rejected the notion of the Volksgeist as the only explanation of the origin of the law, as well as the jurisprudence of concepts, which had become pointless and unrealistic. The Roman elements coexisting in German law were incompatible with the idea of a law derived only from a national consciousness. According to Jhering, a well-balanced legal system should be able to assimilate ideas from outside, as Roman law did. On the other hand, Jhering also argued that the desire for logic so characteristic in the jurisprudence of concepts arises from a misunderstanding of the law. Concepts should be subordinate to life, and not life to concepts. Law is a result of social relations, not of concepts. For this reason, legal concepts have no meaning outside of the social relations they regulate. Roman law was not just based on moral principles but on a social and economic reality, which supported a jurisprudence of interests but not a jurisprudence of concepts.

In Der Kampf ums Recht [Struggle for law, 1872], Jhering argued that rights and laws are a product of the reality of society and should be considered the means of experiencing power and fulfilling the satisfaction of interests. For this reason, law should be explained in terms of human purposes, interests, and desires, not concepts, and the judges, in their decisions, should be con­cerned with the social purpose of the legislation and the competing interests of the parties. According to Jhering, it is not possible to establish a clear wall of separation between the public and the private because the state should be interested in all activities that contribute to the development of the political community. Jhering is considered the founder of the jurisprudence of interests, as well as one of the founders of the sociology of law. Jhering was widely read in the United States by leading American legal scholars: Oliver Wendell Holmes Jr. (1841-1935); Roscoe Pound (1870-1964); Karl Llewellyn (1893-1962), and Jerome Frank (1889-1957), among others.