Jherings Mission. Vom Begriffsorganismus zur Zweckmechanik: Die Suche nach einer säkularen Begründung des Rechts

Abstract

Rudolf von Jhering (1818–1892) is widely regarded as one of the most prolific and influential jurists of the 19th century. Drawing on my recently published biography, this article focuses on Jhering’s quest for a ›scientific‹ explanation of law – in his own, quasi-natural-scientific sense. I first clarify that, like the dominant jurisprudence of his day, Jhering did not equate law with the sum of enacted statutes. He presupposed an invisible normative order that precedes and transcends legislation and guides it. Formed by Enlightenment thinking and a Protestant- inflected idealism, he rejected the appeal to God as the ultimate source of this higher law, since it could not count as a scientific explanation.

Fascinated by Georg Friedrich Puchta’s model of a hierarchy of legal concepts, Jhering initially conceived jurisprudence as a kind of ›mathematics of concepts‹. He hoped that a productive science operating with concepts could further develop the legal organism and thereby secure jurisprudence’s independence from written law. A concrete case – concerning the twice-sold cargo of a ship that had sunk – shattered this confidence: Jhering’s trained legal sensibility contradicted the result he had derived by conceptual calculation. He took this as a falsification of the constructive method. No reliable science could rest on the mere ›reckoning with concepts‹.

This experience prompted a radical methodological shift. Convinced that law is made by human beings, Jhering asked what human action ultimately rests upon. Unlike natural events, which can be explained etiologically, human conduct is driven by interests oriented toward ends. From this he concluded that law, as a human artefact, must be explained teleologically. In his formula ›Purpose is the creator of all law‹, he believed he had reached the goal of his lifelong search.