Rudolf von Jhering

“ And now, in the modern age, when the State seeks to do justice between the parties, the hazards of litigation have become still more complex and fruitful. The modern court is little like the tribal assembly, and one now will hardly seek the law-courts to vindicate his courage or to promote his honor. ”

“ It should be noticed that when we speak of causality we enter the sphere of the historian and jurist, provinces where Jhering attained his surest fame. It is true that Jhering later attempted the treacherous problem of finality—a problem perilous even for the trained philosopher—but it is believed that if he had restricted himself to his earlier aspirations that his labors would have remained a standing monument of unquestioned juristic scholarship throughout the corroding processes of time. ”

“ Legal humor is an ancient institution; it is the agency which humanizes the bloodless operations of the legal machine. Even the Olympian gods indulged their levities, and did not narrow themselves to councils of lightnings and thunderbolts. ”

“ Personality has never been quite as well protected by the law as the claims of property; but when Jhering wrote, rights of individual persons had already reached their highest point in an evolution of many centuries. If anything can be predicted safely of the future one may, perhaps, say that the individual is again rapidly on the way to the loss of his identity. ”

“ The ascending spiral of evolution of juristic thought is plainly visible, to speak only of recent centuries, in the age of rationalism with its revolutionary by-product which gave way to an era of reactionary conservatism in the Historical School, and which later is supplanted by the epoch of legislation and socialization of the law. ”

“ The modern world with its systems, its efficiencies, and its pragmatisms (and we say it with regret) is crushing down the picturesque freedom and initiative of the individual. It will require another era to restore him to the position to which Jhering would have exalted him. ”

“ If Jhering had not become the most renowned jurist of the second half of the last century, it is not unlikely that he would have gained fame in any other calling where personality, a comprehensive and lively domination of complex realities, or the literary quality might play a part in the attainment of success. The power of his personality is attested by the fact of his great popularity ”

“ The cultivation of Roman law had developed into a deductive process of legal reasoning which sought to make the realities of later centuries and altered circumstances of elapsed time fit arbitrarily the verbal form of ideas of the age of Paulus. [15] But yet Jhering was not the enemy of the subjective in his treatment of legal evolution since this evolution itself is the expression of purpose. Law is not only teleological but psychological. ”

“ If rights are legally protected interests, it follows that the State must determine what interests it will select as fit for protection, and this question then logically develops the further inquiry of purpose in the law, which Jhering stated in the form of the principle, “the object is the creator of the law.” ”

“ This work is considerably used by teachers to good advantage; the present writer has found it useful in examinations in analytical jurisprudence. Jhering’s keen sense of legal realities is here shown developed to the highest degree. No one but a man thoroughly saturated with the feeling of the omnipresence of the law and legal relations would think of raising the question whether a guest at a hotel can take away the candles with which he has been charged, or whether he can put into his pocket fruit served at the dinner table (Goudy’s translation, p. 24) . ”

“ It is perhaps still a question whether philosophies create movements in the outer world, or whether they only reflect or follow these movements; but in any case the social utilitarianism of Jhering came in season to synchronize with the most significant development of the law in modern times — the change from the individual to the social emphasis. ”

“ The dissimilarities are striking in either case whether we consider the contrasted figures either from the point of view of personality, method, or ideas. Savigny, aside from being the leader of a great school, was the greatest Romanist of the first half of the nineteenth century. Jhering at the age of 24 had written a doctoral study, “De hereditate possidente” (Berlin, 1842) , which already was considered a “remarkable dissertation,” and when in 1852 (at the age of 34) he published the first volume of his “Geist,” the star of Savigny’s genius paled in the glare of Jhering’s rising fame. ”

“ He universalized Roman law, approving at once its reception, and the changes which had been made in it in the middle ages, and thus took a middle ground which compromised in effect the rigid nationalism of the Historical School and the patriotic clamors of the Germanists. The Romanists would have imposed upon the country the Byzantine law, while the Germanists would have destroyed it root and branch. Jhering’s attitude in this controversy is shown by the fact that jointly with Gerber, a Germanist, he founded (1856) a journal for the study of the dogmatic of modern Roman and German private law. ”

“ Jhering was a philosopher in the law, if not of the law, and had he been less, it is not unlikely that he would have remained a national factor of limited importance, instead of becoming an international figure. ”

“ We have only to think in this connection, among a number of things, of the dishonored position of the witness which has become a factor of no little importance in making a resort to law unpopular, of the sensational press accounts, and of the machine patterned course of litigation. It is unlikely that any device except a simple reversion to primitive justice could bring out the spirit of self-assertion which has departed from the law and sought other channels of expression. ↑ Even commercial litigation is seeking an escape from the delays and difficulties of justice. ”

“ T is the fortune of the generality of men to follow the beaten path, to use tools already designed, and to think in terms already fashioned. In such lives there is no room for cataclysms, or great events ”

“ Such militant programs to be thoroughly consistent must regard as undesirable all agencies which substitute for the wounds and destruction of the combat. In the struggle for rights, even the State itself, from this standpoint, must be considered a biological obstruction. ”

“ The realistic trend of thought which had its origin in Jhering’s war on the concept jurisprudence is now known in Germany under the name of “freie Rechtsfindung” after Ehrlich’s book of that title. Strangely enough, this tendency in legal method has attracted representatives from the most diverse positions in legal philosophy. ↑ Albany Law Journal, xx, 444 (1879) . ↑ There need no ghost from the grave come to tell us that Jhering’s proposition of a duty to maintain one’s rights before the law has certain affinities with the doctrine that it is the right and the duty of States to make war. ”

“ The present work was a fragment thrown off in the development of the “Zweck.”
Of Jhering’s achievement the “Geist” will no doubt be permanently regarded as his greatest effort. [12] When it began to be published, Rudorff, a civilian of the Historical School, referred to it in terms of reproach in his “History of Roman Law” (1857-59) ; but this reflection was one of the last feeble groans of an expiring and superseded theory of law. How frequently a fond parent is unable to judge impartially and justly of his own children is shown in the history of literature. ”