Rudolf von Ihering
Caspar Rudolf von Ihering (Aurich, August 22, 1818-Gottingen, September 17, 1892), also known as Caspar Rudolf von Jhering, was an illustrious German jurist, as well as one of the greatest philosophers of European law and continental legal history who inspired several future generations.
At first, a teacher of pandectistic dogmatics, he was later the founder and eminent author of the sociology of law. His theories had great significance and influence in the development of modern legal doctrine, especially in the fields of civil, criminal and constitutional law.
Spelling and pronunciation of the last name
It is not entirely clear whether the surname should be spelled Jhering or Ihering. Ihering himself is not a reliable guide in this regard because he wrote his last name interchangeably in one way or another. For the rest, the surname has survived to this day in both variants. In practice, most German jurists write Jhering with J. Thus, for example, the form with I corresponds to an outdated spelling form.
In a letter of introduction addressed to the German Parliament, Rudolf von Ihering clarified that his surname should be pronounced in three syllables, which would indicate two things: first, that the pronunciation of the surname was not univocal, and second, that the surname should be pronounced with initial vowel sound /I/-/e/-/riŋ/. Because i is a closed vowel, the difference between the pronunciation of the vowel sound and the consonant sound is not relevant in everyday speech. For this reason, German jurists pronounce /Ie/-/riŋ/ or /je/-/riŋ/ interchangeably. On the other hand, they do not follow Ihering's indication regarding the number of syllables, so they pronounce the name in two syllables, that is, forming the initial sounds "Ie" a diphthong.
Biography
Born on August 22, 1818 in Aurich, belonging to the Kingdom of Hannover, he grew up in a family of jurists and justice officials from East Frisia. He received an aristocratic education. Initiated early in reading, he very early oriented his tastes towards history and the world of law.
Her father, Georg Albrecht Jhering (1779-1825), was personal secretary and legal adviser to the Frisian estates. They thought they saw the root of their son's work, since it dealt with the socializing function of the legal norm. He died in 1825, when Ihering was seven years old.
Training
Ihering developed his career during the crisis that occurred in German pandectistic science as a result of the birth of doctrines that tended to analyze the world of law based on social reality, and not the postulates of German legal dogmatics, whose The main basis of analysis was the doctrinal construction of concepts. Thus, the author was formed within the pandectistic school, studying at the universities of Heidelberg, Munich, Göttingen and Berlin.
His Gymnasium teacher (equivalent to high school) was Wilhelm Reuter, grandfather of Ernst Reuter. She wrote about him in Lessings Erziehung des Menschengeschlechts (1881), and praised his "scientific sense" even though she also described him in his classes as an excessively idealistic man.
Pandectist stage
Later, in 1843 he began his period as a researcher and teacher at the University of Berlin. He moved to the University of Basel in 1845, to Rostock in 1846, and to Kiel in 1849. At this stage, his work focused on monographs that show his total belonging to pandectistics, especially highlighting his Abhandlungen aus dem römischen Recht (1844). In 1846 he married Helene Hofmann, whom he widowed in 1848. In 1849 he married Ida Frölich.
He entered the University of Giessen in 1852 and worked as a teacher and researcher for 16 years; at that stage he published his most famous work, Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung ( The spirit of Roman Law in its different stages of development ). He dedicated this work to Georg Friedrich Puchta, continuing in the conceptualist and constructivist line in which he had been trained.
In 1858 he published the second volume of his great work, Der Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung, and despite broadly following German legal dogmatics, a certain change of direction can be appreciated. direction that would mark the beginning of his second stage, moving further and further away from the conceptualist line of the school in which he had been trained and gradually developing his own innovative thinking.
Sociological stage
It will be at this stage when he formulates his most important theses in the history of law. Thus, the turning point between one moment and another will be the publication between 1861 and 1866 of the Vertraulichen Briefen über die heutige Jurisprudenz. Von einem Unbekannten (Confidential letters, in Spanish. Although its complete translation from German would be Confidential letters about current legislation. From an unknown person). Here it can be seen how the sociological conception of Law is imposing itself on the dogmatic conception, until then predominant in it.
In 1866, Ihering ran for the Reichstag for the northeastern cities of Norden, Emden, Weener, and Leer, but was unsuccessful. After an intense electoral campaign, his rival, the Emden merchant Ysaak Brons, defeated him by eight votes in the second round.
Ida Frölich, Ihering's second wife, died in 1867, leaving him again a widower, this time with five children. Ihering moved to the University of Vienna in 1868, the year in which he published Ist die Jurisprudenz eine Wissenschaft? ( Is jurisprudence a science? ). In 1869 he married for the third time. His last wife, Luise Wilders, was the teacher of his children.
In 1872, coinciding with the year in which he moved to the University of Göttingen, he published Der Kampf ums Recht, one of the biggest legal bestsellers, of which They went through about 23 editions in German until Ihering's death. There are translations of this little book for practically all the majority languages, and even today, they continue to be reissued in response to the continuous demand from law schools.
Later, in 1877, he published the first volume of Der Zweck im Recht (The End in Law), which would be the beginning of an extensive two-part work. parts and four volumes, in which another of Ihering's great contributions to legal science will be reflected: finalism. In 1882 he published Das Trinkgeld , a book in which another great change in the author's thought can be seen, which now completely renounces the spiritualist idealism characteristic of the legal world until then. The gap that remains is filled by Ihering with naturalistic ideas and theories from social Darwinism.
One year after the publication, in 1883, of the second volume of Zweck im Recht, Ihering gave the famous lecture Die Entstehung des Rechtsgefühles. On the other hand, Scherz und Ernst in der Jurisprudenz. Eine Weihnachtsgabe für das juristische Publikum (Jokes and seriousness in jurisprudence. A Christmas gift for the legal public) was published in 1884, considered one of the most ironic works. and Ihering's mordants. Also in 1884 the first volume of the second part of Zweck im Recht came to light, and the work was finally finished after the publication of the last volume in 1886.
Another work of vital importance in Ihering's thought is Der Besitzwille. Zugleich eine Kritik der herrschenden juristischen Methode (The Will in Possession. Critique of the reigning legal method), published in Jena, in 1889. Despite not making great innovations here regarding what Until then he had exposed, he manages to elaborate a critique of the traditional method of approaching the world of Law, and to clearly state the precepts that would later be followed not only by legal sociology, but also by sociology as a whole.
He died on September 17, 1892, at the age of 74, while he was still a professor at the University of Göttingen. In 1894, two years after his death, Vorgeschichte der Indoeuropäer ( Prehistory of the Indoeuropeans ) was published, a work in which the historical evolution of cultures was analyzed. Indo-Europeans, focusing on their legal evolution. It should be noted that it is deeply influenced by social Darwinism, already evident in the very structure of the work: First book, the Aryan father people; Second book, Aryans and Semites; Third book, the departure of the Aryans from their homeland; Fourth book, emigration. Fifth book, the second homeland; Sixth book, origin of the European peoples; Seventh book, differences between European peoples.
Thought
Origin of the right
Ihering theorized about the nature of law, locating it in part in doctrinal constructions, but above all, affirming that law, ultimately, was the fruit of society. In other words, the social phenomenon gave rise to the production of legal normative sets.
It should be noted that unlike his colleague Friedrich Karl von Savigny, Ihering did not conceive of law as the result of a historical evolution, but rather as the product that a society produces to resolve conflicts among its members. In addition, he distanced himself from the theory of evolution according to the will of the people, or Volksgeist , denying the indifference or quietude to which Savigny's theses consequently led.
Evolution and change of law
Taking into account what was said above, Ihering saw the law as the result of the interrelation of individuals in a society, which is subject to change due to the continuous struggle of the subjects to defend their interests, in what refers to the subjective right, and for eliminating injustice, in relation to the law as a whole.
Thus, Ihering distanced himself in his thought from the doctrine of the historical school of Savigny and Puchta, until then dominant, whose precepts he knew deeply. Faced with the conception of law as the product of the historical evolution of a people, Ihering will establish an active individualistic element, for which, it is not the will of the people (Volksgeist), but the will of « the individuals who fight” the one that makes the law change and evolve.
Objective theory of possession
The author, based on his analyzes of Roman law, will develop the objective theory of possession, as opposed to the subjective theory elaborated mainly by his colleague Friedrich Karl von Savigny. In this way, he denies that possession requires an animus domini , as Savigny thought. Despite this, Ihering admits including the requirement of intentionality within possession, but equates such an element to the spirit that the subject has in mere possession.
Continuing with the reasoning, he will come to the conclusion that this intentional part, or possessory animus, is identified with the corpus, the latter being the externalization of the possessory purpose. Finally, the animus would materialize in the subject's intention to use the thing to satisfy its needs and interests.
Ihering, for all these reasons, will affirm that the only requirements for possession will be the material relationship and the desire to continue with that relationship. In this way, a priori, he equates mere possession with possession. However, he establishes that interdictal protection is not applicable to mere possession, with which the requirement of causa possessionis continues to exist, which both cases meet, but he affirms that attention must be paid to details of such a requirement. In this way, when the causa possessionis has certain features, such as possession in the interest of another, it corrupts the figure of possession, and reduces it to a mere seizure for which there is no interdictal protection..
This difference is of great importance when establishing who has processed the load of the test, so that the supposed holder will only have to prove the material relationship, while the opposite party will have to prove that the Cause Possessionis concrete belongs to the category that does not enjoy interdictal protection.
Pre -contractual responsibility
Ihering is the doctrinal creator of culpa in contrahendo, stating that there are many possibilities that can give rise to pre-contractual liability, that is, liability in the moments prior to the conclusion of a contract.
The author will conclude that a priori there is no relationship whatsoever before entering into the contract, but that in certain cases, in which the absence of good faith or, more precisely, the existence of fault in the production of damages to the other contracting party, incurring liability for culpa in contrahendo. Such an approach has been reviewed, for example, by León (2006) and Saavedra (2011).
Theory of interest
Faced with the voluntarist theory of Savigny and Bernhard Windscheid, Ihering will develop the theory of interest, which proposed a new conception of subjective right, whose fundamental element will be the interest that motivates the legal system to grant guardianship and protection.
According to Ihering, the voluntarist theory would be excessively abstract, and would pay too much attention to the formal aspect of the will. According to his thinking, a realistic turn of the doctrine was necessary, so that the doctrinal theses followed the day-to-day legal practice, and not the other way around, as proposed by the Savignian theory.
It should be noted that a conceptual division of the subjective right is proposed, which will result, on the one hand, a material element, which is the satisfaction of the interest, and on the other hand, a formal element, which is constituted by the decision that the legal system takes to apply its protective or protective powers.
Right as a fight
This theory is published by Ihering in Der Kampf ums Recht (1872) or (The Struggle for Law). According to his approaches, Law is an idea that starts from its own antithesis, that is, on the one hand it has the objective of achieving social peace, and on the other it is essentially the fight against what disturbs it. Thus, the Law would be in charge of dictating norms that regulate relations within a society, and at the same time, it would be in charge of fighting against the legal injustice.
Ihering would go so far as to affirm that the Law that did not fight against injustice would deny itself. According to him, all subjective rights are the result of a struggle, of a social friction, and that therefore comes first the struggle and then the Law. In this way he affirms in Der Kampf ums Recht that “every Law in the world had to be acquired through struggle”.
The concept of «struggle» that Ihering uses has profound connotations in terms of the active position of the individual in the construction of Law, and is in contrast to the theses defended by Friedrich Puchta, Gustav von Hugo and Savigny, who, as was said Previously, they conceived the Law as the manifestation of the history of a people, completely unrelated to the active intervention of man, or to the combative attitude of the individual.
The struggle in the moral field
Following his conception of Law as a constant struggle of the individual, Ihering comes to speak of the struggle as an ethical duty of the individual himself, in such a way that he manages to link the legal normative field with the moral normative field. Thus, the ultimate origin of Law would have an ethical motivation, that is, starting from a moral norm for which individuals fight, a legal norm would end up being established.
In addition, Ihering will present a series of features of this struggle to impose the moral principle of the individual, according to which, the person has an ethical duty to attack injustice, understanding the concept as an original guilt (Schuld) for which the individual has to answer before society and before himself. Thus, injustice must be repudiated and attacked by the person, whether it is an injustice committed against him or an injustice committed against other people.
It should be noted that many authors have pointed out that the key element in Ihering's reasoning is to understand justice and injustice from a moral point of view, and not a legal one, so that in essence, the individual must be indifferent to whoever injustice is or is not reflected in the legal bodies.
Thus, the concept of moral struggle for Law and against the unjust de facto or de iure, will be at the same time the link between Law and morality, as well as the engine of change and evolution of Law.
Finalism
Starting from the theory of sufficient reason, according to which there is no causa sui, Ihering will fully adopt the law of causality and apply it to the will of the person as well. According to this reasoning, the will acts due to a motivation, always presenting a cause, a "sufficient reason."
He will also distinguish the two faces of causality. He will affirm that there is, on the one hand, the "mechanical cause", that is, that which is physically the efficient cause of a certain event (the stone falls due to gravity). But on the other hand, he speaks of a "psychological cause", which would be the one that Ihering identifies with the "final cause", affirming that it is the only reason that moves the will to act.
The author will deeply analyze the concept of "will", attributing it to all animals, and describing the influence that experience has when setting decisions in one direction or another. Specifying already in the assumption of the will of men, he affirms that the human "will" has some particular conditions that are not manifested in the rest of animals. In this way, he will affirm that the law of the finality supposes the mental figuration of a future situation that can be more or less attractive for the subject, and that will move him to act in one way or another.
Jurisprudence of interests and jurisprudence of concepts
The complex conceptual constructions of the German pandectistic doctrine give rise to the conception of «concept jurisprudence», which focuses on establishing a coherent legal body based on the logic of Law. The main means of construction and doctrinal elaboration consists of the deduction of ideas from pre-existing legal concepts.
Ihering, after distancing himself from this doctrine, will point to a «jurisprudence of interests», whose primary object of study would be the real interests that society contemplated, as well as the regulation and management of these by the legal system. Thus, the existence of an "abstract will of the Law" to which the different legal norms should be directed is completely ruled out. Failing that, a new center to which the legal norms must be oriented is highlighted, which is precisely the set of interests of a society, which must be guaranteed by the legal system.
In this way, Ihering will say that Law must have a social purpose as its objective, disdaining the importance that pandectistics gave to the formal aspect of legal construction. The concept of "social purpose" is connected with the finalist theory of the author.
Unlawfulness
According to his approaches on «Law as a struggle», and being coherent with his concept of subjective right and with his finalist theories, he comes to the conclusion that there are human actions that produce a disturbance of social peace by attempting against legally protected interests.
He attributes an “unlawful” character to these disturbing situations, that is, he highlights their harmful nature for the legal rights that the legal system protects. The concept of illegality will have great relevance when analyzing a certain action or conduct.
The application of the figure of illegality will be extended in the civil sphere and especially in the field of criminal law, where it is included within the theory of crime as a necessary element for the typical action to be considered criminal.
Rationalism and Dialectic
After having denied the irrationalist spirit of the historical school, Ihering approaches Hegelian rationalism. However, his position differs from the "logical dialectic of the concept" defended by Hegel's approach to idealism, in such a way that he applies his finalist theory to dispossess the concept of an active role in the historical evolution of Law.
In its place, it introduces a «compelling practical dialectic of the end», thus establishing a doctrine that is based on the purpose of the subject, in such a way that it moves away from the marked philosophical character that the Hegelian explanation entails, and opts for a path in which the historical and sociological foundation predominates in the analysis of legal development.
Works
- Abhandlungen aus den römischen Rechts (1844)
- The spirit of Roman Law in its different stages of development (Geist des römischen Rechts auf den verschieden Stufen seiner EntwicklungVol.I 1852, vol. II 1865): Define subjective law as a legally protected interest.
- Confidential letters (Vertraulichen Briefen über die heutige Jurisprudenz. Von einem Unbekannten1861-1866):
- Is jurisprudence a science? (Ist die Jurisprudenz eine Wissenschaft?1868)
- Ueber den Grund des Besitzesschutzes: eine Revision der Lehre vom Besitz (1869).
- The struggle for law (Der Kampf ums Recht, 1872): Develops the theory that the legal norm comes to be an imposition that is achieved through struggle. "Right is imposed through struggle."
- The End in Law (Der Zweck im Recht, vol.I 1877): Affirms that the aspect of the conduct to which the law should pay attention should be the objective that such conducts persecute. "The purpose is the configurator element of legal institutes."
- Lessings Erziehung des Menschengeschlechts (1881).
- The End in Law (Der Zweck im Recht, vol. II 1883).
- Das Trinkgeld (1882).
- Bromas and you will see in legal science (Scherz und Ernst in der Jurisprudenz. Eine Weihnachtsgabe für das juristische Publikum Archived on 7 June 2007 at Wayback Machine., 1884)
- Die Entstehung des Rechtsgefühles (1884): Conference in which Ihering would participate, and of whose intervention a book would be extracted. The latest edition was made in 1986 by Neapel.
- The Will in Possession. Criticism of the prevailing legal method (Der Besitzwille. Zugleich eine Kritik der herreschenden juristischen Methode 1889)
- The Right to Everyday Life (Die Jurisprudenz des täglichen Lebens 1891).
- Prehistory of the Indo-Europeans (Vorgeschichte der Indoeuropäer 1894): Posthumous work that analyzes the historical evolution of the Indo-European peoples.