Jhering's Philosophy of Authority

This article offers a critical reassessment of the jurisprudenceof Rudolf von Jhering. During the 20th century, Anglo-Americanlegal philosophers who drew inspiration from Jhering's workusually lauded him either as a German forerunner to Americanlegal realism or as an early proponent of a jurisprudence ofinterests. These representations of his work do not do justiceto Jhering's jurisprudential project. This study demonstratesthat he sought to explain how legal systems originate and howthey maintain authority. It is shown that his explanation oflegal authority depends not only upon familiar jurisprudentialnotions such as reciprocity and positional duty, but also uponthe concept of Rechtsgefühl—namely, the idea thatauthority is conditioned by citizens’ feelings of whatis right or just. Jhering, it is demonstrated, believed thatthe authority of a legal system depends very much on its abilityto negotiate and accommodate struggles based upon feelings ofright—struggles between citizens, between citizens andState, and between States. It is also argued that the mannerin which Jhering relies on the idea of Rechtsgefühl underminesthe received wisdom that he was an interest theorist.