Savigny versus Jhering

Picture two gardeners. The first says: plant the seed in the soil of the nation, water it, and leave it alone; the tree will take the shape its nature gives it, and pruning only harms it. The second says: nothing in my garden grows the way I want unless I fight weeds, pests and drought every season, and I plant each tree for a purpose, for fruit, shade or timber. Savigny is the first gardener. Jhering is the second. Their quarrel marks the passage from the historical to the sociological view of law. Savigny's own theory is explained in Notes 13 and 67; this note concentrates on how and why Jhering turned against it, and how a Savignian might answer.

Figure: Savigny's picture of law as a plant growing silently from the soil of the people, against Jhering's picture of law forged between social purpose and resistance

1. Savigny in Brief

For Savigny, law is like language: the product of the common consciousness of a people, formed first by custom and popular belief and then refined by jurists, through inner and silent forces. Hence his 1814 opposition to Thibaut's plan for a German code, and his view that the jurist's task is to draw out the law already present in the people's life, not to force it. Law on this view has no single author and no deliberate aim; it simply unfolds, and it is peaceful, because it expresses what the people already believe.

2. Jhering's Journey: from Historical Scholar to Critic

Rudolf von Jhering (1818 to 1892) was trained in the historical school and began his career as a Roman law historian. His Geist des römischen Rechts (The Spirit of Roman Law at the Various Stages of its Development), published in parts from 1852, set out to discover the spirit of Roman law in exactly the manner Savigny had taught. But the deeper he went, the more he saw that Roman law was not the silent flowering of a national soul. It was a practical, purposive instrument, shaped by Roman jurists and statesmen to meet Roman needs. The Romans, moreover, spread their law to many peoples, and later Europe received it, which is hard to square with law being peculiar to one nation.

Jhering also turned against the jurisprudence of concepts (Begriffsjurisprudenz), the method of the later historical school which treated legal concepts as if they had a life of their own and deduced rules from them by pure logic, whatever the practical result. In a satirical piece collected in Jest and Earnest in Jurisprudence (1884) he imagined a heaven of legal concepts reserved for theorists, where concepts exist in perfect purity, untouched by the practical life they are supposed to serve. The joke was aimed at his own former self as much as at anyone.

3. The Struggle for Law (1872)

Der Kampf ums Recht began as a lecture in Vienna in 1872 and became one of the most widely translated legal books of the century. Its thesis is that the life of law is a struggle: of nations, of the State power, of classes and of individuals. No important right, whether the abolition of serfdom or freedom of belief, arrived peacefully; each was wrested from those who profited by its absence. New law often has to overturn old interests, and those interests resist. This flatly contradicts Savigny's picture of silent, painless growth.

Jhering drew a moral conclusion. To assert one's right when it is violated is a duty to oneself, because a person who lets his rights be trampled surrenders part of his moral personality. It is also a duty to society, because every right abandoned weakens the law for everyone, just as one soldier's desertion weakens the whole army. The concrete right of the individual and the abstract law of the community stand or fall together. He even read Shylock's defeat in The Merchant of Venice as a denial of law by legal trickery.

4. Law as a Means to an End (1877)

In Der Zweck im Recht, whose first volume appeared in 1877, Jhering built his general theory. The motto of the work is 'purpose is the creator of the entire law'. Every legal rule owes its origin to a purpose, a practical motive. Law is a means to an end, and the end is the security of the conditions of social life. Society, for Jhering, is a partnership in which individual and common purposes must be reconciled, and law is the principal instrument of that reconciliation.

How does society get people to serve its purposes? Through levers of social motion. The egoistic levers are reward (chiefly economic exchange) and coercion (the organised force of the State and law). The altruistic levers are the sense of duty and love. Law belongs mainly to coercion, but works alongside the others; a well-ordered society uses all four.

Jhering's analysis of a right follows from this. In the later volumes of Geist he defined rights as legally protected interests, with two elements: a substantial element (the interest or benefit, the purpose the right serves) and a formal element (the legal protection, above all the action at law). This founded the interest theory of rights, set against the will theory of Savigny and Windscheid (see Notes 29 and 71). The two men also clashed over possession (Note 30): Savigny made the possessor's intention (animus) decisive, while Jhering took a more objective, interest-based view.

5. The Two Compared

They still share a good deal. Both look past the bare command of a sovereign to the social life that law expresses or serves, both reject a purely analytical treatment of law, and both treat law as something that develops through time. The difference is whether that development is unconscious growth or conscious struggle for ends.

6. Influence, the Savignian Reply and Evaluation

Jhering's emphasis on interests passed into the jurisprudence of interests (Interessenjurisprudenz) of Philipp Heck and the Tübingen school, which told judges to decide by weighing the interests the legislator had in view rather than by deducing from concepts. Across the Atlantic, Pound built his theory of social engineering and his classification of interests on the same foundation (Notes 14 and 69).

A defender of Savigny would reply that Jhering describes the surface of legal change, the visible battles over particular statutes, while the Volksgeist explains why some reforms take root and others fail. A right won by struggle survives only if it is accepted into the common consciousness; a law imposed against it remains a dead letter. There is force in this. The fairer verdict is that each captured part of the truth: law often grows quietly as custom and practice, and it often has to be fought for.

7. Indian Illustrations

These cases do not apply Jhering's theory; they are illustrations of rights that had to be fought for.

8. Frequently Asked Questions

Q. What is the main difference between Savigny and Jhering?
A. Savigny holds that law grows silently and unconsciously out of the Volksgeist and should not be forced. Jhering holds that law is made through conscious struggle to secure social purposes, backed by State compulsion, so that purpose, not an unconscious spirit, creates law.

Q. Was Jhering ever a member of the historical school?
A. Yes. His Spirit of Roman Law, published in parts from 1852, was written in the historical manner. His study of Roman law as a purposive instrument led him away from Savigny.

Q. Why is asserting a right a duty, according to Jhering?
A. Because a person who lets a right be trampled surrenders part of his moral personality, and because every right abandoned weakens the law of the whole community.

Q. How is Jhering linked with the interest theory of rights?
A. He defined rights as legally protected interests, with a substantial element (the interest) and a formal element (legal protection). This is the foundation of the interest theory discussed in Notes 29 and 71.

See also: Note 13 (historical school), Note 14 (sociological school), Note 29 (theories of rights), Note 67 (Savigny versus Maine), Note 69 (Pound versus Duguit), Note 71 (will versus interest theory).