耶林

鲁道夫·冯·耶林（Rudolph von Jhering，1818-1892）生于德意志北部的一个小镇上，父亲是一位执业律师。1836年他进入海德堡大学，后又连续在柏林、哥廷根、慕尼黑等大学接受法律教育，而这种游学方式曾一度流行于德国学生之中。耶林获得博士学位后，于1843年在柏林大学通过论文审查获得教职，并于次年在该大学教授罗马法。随后，历任巴塞尔（Basel，1845年）、罗斯托克（Rostock，1846年）、基尔（Kiel，1849年）、吉森（Giessen，1952年）各大学的教授。当时在德国法学界，萨维尼的学说依然具有支配性的影响，因此，耶林在1852-1863年陆续出版的《罗马法的精神》（全四卷）以其卓尔不群为他赢得了巨大声誉。1868年耶林接受了奥匈帝国首都维也纳大学罗马法教授的讲席，在这里的四年之间，他的讲课堂堂爆满，听众中不仅包括固定的学生，而且还包括许多慕名而来的社会各界人士甚至政府上层官员。耶林交游广泛，热爱艺术、音乐，于是他成为了当地法律界、政界以及艺术、社交界极受欢迎的人士。由于耶林对奥匈帝国法律教育的贡献，奥匈帝国遂授予耶林一个世袭的贵族爵位，这是过去在德、奥学术界极少数非因政治或军事贡献，而是因学术成就——尤其是法学和其他人文社会科学，被授予爵位的例子。为了逃避逐渐令人厌倦的社交活动以及过重的教学压力，耶林于1872年返回德国并进入哥廷根大学，在这里他一直工作到去世。在离开维也纳前，耶林在维也纳法学会上发表了一篇演讲——"为权利而斗争"。这篇演讲获得了极大的成功，两年内即印到了十二版，此后又被译为二十多种文字。在他生命的最后二十年间，他又出版了他的宏伟巨著《法的目的》（全二卷）。耶林以其不朽成就，得以与萨维尼、祁克并列，成为19世纪西欧最伟大的法学家，也是新功利主义（目的）法学派的创始人，其思想不仅对西欧，而且对全世界都产生了巨大的影响。

阅读 重温耶林 罗马法精神及其现代意义

下载：耶林 权利的斗争.txt：http://blog.blogchina.com/upload/2005-03-02/20050302141104283908.txt



RUDOLPH VON JHERING (1818‑1882).
Up to the nineteenth century, to study law one studied its historical development, actual or hypothetical. But history by itself cannot give causes. To get at causes you have to approach history systematically. This was not done in a truly modern way until the early nineteenth century, by the "historical school" founded by Wilhelm von Savigny, at the University of Berlin. Savigny was interested in the evolution of Roman law into the law of European nations, and to get at it he recognized he had to have a way of dating texts and ideas. This led him to develop the "comparative method" of historical analysis. When applied to European languages in order to make parallel analyses of European myths by two of Savigny's students, Wilhelm and Jacob Grimm, this produced the "sound law" by which sounds of the Germanic languages could be seen to go through a regular series of changes over the course of time, from strong to weak and then back to strong. In law proper, the primary contribution of the historical school was to show that Roman Republican law, as the law of the Roman civitas, had never died. It had persisted as the law of the Roman cities and colonia and eventually, as the Roman populations merged with the surrounding Germanic populations, evolved into the law of medaevil European cities.


Savigny's successor at Berlin was George Friedrich Puchta, the last historical jurisprudent. Puchta returned to concentrating on the law of Rome itself. He was in turn succeeded by Rudolph von Jhering (also spelled Ihering) from 1842. His work forms the theoretical bridge between the historical jurisprudence and the main line of processual jurisprudence that has replaced it: the line running from the "sociological jurisprudence" of Eugen Ehrlich to modern pragmatism and legal realism. Clarence Morris describes Jhering as "a monarchist, and yet a moderate liberal who developed socialist tendencies." (Morris 1959:397). In understanding this we have to be careful about which assumptions take priority. While a monarchist cannot, in the abstract, be a republican there is nothing in Jhering's arguments to support absolutism or hereditary privilege. On the contrary, Jhering's writings argue strongly for an independent judiciary and equality before the law, and are peppered with asides to underline the impossibility of effective centralized control. The sense that runs through all his arguments is of the incomparable power of free people acting freely according to their lights, conscience, and interests, making law and disciplining themselves and each other in the process. That is, whether he was a monarchist or not his sense of law is thoroughly republican in the Roman sense.


Jhering does not explicitly identify himself with the historical jurisprudents. His references are few, and most of those concerned with Savigny are critical but technical. His unqualifiedly favorable references are mainly to Newtonian mechanics and Adam Smith's analysis of the division of labor, and he leaves no doubt that he wishes his analysis of law to be seen as their counterpart.

Like Smith, Kant, and Montesquieu, Jhering grounds his analysis directly in social process at the individual level. Two major theses run through his work. The first is that law is created and maintained through self‑interest. The second is that law grows out of the self‑regulation of power. Neither of these sound like Kant's concern with obligation and the golden rule, and Jhering frequently points up the contrast. Yet when understood in the context of the rest of Jhering's argument, his underlying agreement with Kant is impossible to mistake.

Jhering is best known for three major works: The Spirit of Roman Laws (1852‑1865), the Struggle for Law (1915; first published in 1872), and what is translated in English as Law as a Means to an End (1913; vol. 1 first published in 1877, vol. 2 in 1883). Scholars who wish to deny the continuity between the historical school and modern jurisprudence argue that there is a major break between the first and the last. He would not agree. He explicitly described the latter as an offshoot of the former (1913; liii), while the middle book was an intermediate formulation of the central problem: the relationship between subjective rights and objective rights. The later work makes constant reference to the earlier ones, and constantly assumes that Roman law and modern law rest on the same basic conceptions.

Jhering's conception of self-interest evolved steadily. He starts the Spirit of Roman Law taking self interest as a basic postulate that people only do what produces direct personal gain, but by the end of the book he recognizes that such motivation does not operate uniformly and actually would not produce an efficient legal order. In The Struggle for Law, he argues that law, which is established to protect interests, can only do so if people use the law to demand what is due. One has an obligation to fight for one's legal rights even if the cost of doing so exceeds what one will gain from a legal victory (as he portrays the English as doing, to their credit and ultimate benefit, in contrast to Germans). In The Aim of the Law, he comes to see that his analysis will be more consistent as well as more penetrating if he recognizes that interest is not an exogenous principle but is itself socially ordered. It does not just proceed from the individual out, but also comes to the individual from others who make up his context just as he makes up part of theirs.

The Aim of the Law is the most important in relation to subsequent developments. Its argument begins with the distinction between mechanical causality, springing from antecedent conditions, and purpose or final causality, aimed at future conditions. He argues that in all living beings there is "no volition, or, which is the same thing, no action, without purpose" (1913:2, emphasis his). The experimental test Jhering offers for the presence of purpose is whether we can substitute the idea of "in order to" for the word "because" in statements about their actions. When we say, for example, "the dog drinks because he is thirsty," do we mean that thirst is some antecedent condition that mechanically forces the action or do we mean that thirst is a condition that the dog drinks in order to do something about? Jhering thinks it is the latter. He argues that we always can substitute the idea of "in order to" where the idea of "because" itself makes sense. That is, purpose is the only cause we actually recognize for actions of living beings. "Acting, and acting with a purpose, are synonymous" (p. 9).

This is qualified by his notion of action. Most of the time, it is clear that by "action" in this context he does not mean just anything one might be construed as doing. Breathing while asleep is not action. Neither is the beating of one's heart. It means acts in response to choice, volitional acts. Purpose — the "in order to"— is what explains the choice. Yet such action is not restricted to that which is conscious, calculated, and deliberate. He makes a very important point of including all sorts of habitual action, action undertaken for purposes that were conscious once, but have long since become automatic.

Jhering's concept of purpose is neither hedonic nor reductionist. It is social, or rather socialized. It differs from Bentham's "happiness principle" (to which it has been often compared) in two fundamental respects. For Jhering what is valued is to be defined by the actor, not the outside analyst, and there is no prior stipulation that only some purposes, ends, or goals will be considered real or legitimate. Jhering is not making a statement about an outer force or calculus that can or should control behavior, but about its actual inner impetus. Moreover, he argues that what an individual seeks involves complex and far reaching patterns of learning and habit formation. What distinguishes humans from animals is that animals for the most part can obtain information on what will satisfy their purposes only from their own experiences. Humans can learn from the experiences of others, and in this way come to embody the experiences of others, public and social knowledge, in their own most personal activity. In addition, however, humans pursue purposes that are not personal at all, but are socially established and recognized. These may be non‑organized (such as research in a scientific discipline) or organized (as in a political party) (p. 31).

Consideration of purpose brings Jhering to compare his outlook directly with Kant. Any theory that recognizes self-interest must reconcile or qualify this with an analysis of self-denial, both because it exists and because it is an obvious requirement of ordered social relations. Jhering's argument includes some quotations from Kant that show the relationship between them in a way particularly pertinent to developments in ethnology and sociology as well as law. He says that:

<>Kant's postulate of duty contains the postulate of absolute self‑renunciation; man must fulfill his duty without any reference to himself. . . . Kant's categorical imperative, upon which his whole ethics is based, makes the demand upon the will that it set itself in motion without any interest; its movement is to be caused solely "by a formal principle of volition in general, which alone must serve the will as its principle" . . . The moral law must "not be sought for in the nature of man (subjective), nor in the circumstances of the world (objective). Not the least thing must be borrowed from the knowledge of man, i.e., from anthropology" . . . (Jhering p. 38)."


This, Jhering argues, is admirable but unrealistic:



"You might as well hope to move a loaded wagon from its place by means of a lecture on the theory of motion as the human will by means of the categorical imperative. If the will were a logical force, it would be obliged to yield to the power of a concept, but it is a very actual existence which you cannot budge by purely logical deductions, and one must have actual pressure to set it in motion. This real force which moves the human will is interest." (p. 39)



The argument was not aimed only at Kant. It was probably more important as Jhering's way of separating himself from the popular neo‑Kantianism of Rudolph Stammler (1856‑1938). Stammler had focussed on the categorical imperative to argue that no one should be subject to the arbitrary power of another. On this basis, he produced a system of laws that Jhering and most others regarded as shallow, nominally relativistic but really absolute, and dangerously unrealistic.

With respect to Kant himself, however, the disagreement Jhering describes is unreal. Kant did not say that the will was a purely logical (rational) entity, and did not deny that human behavior was self‑interested, as I hope I have made clear. But, consistent with an experimental method, he was particularly concerned to analyze those instances that appeared to be exceptions.

Kant took it as a fact that people sometime recognized a difference between what was in their interest and what was morally obligatory. The sense or idea of duty, as we have it, seems to preclude self-interest and vice versa. His problem was to explain this. Obviously such a tension could not develop if judgments of morality depended only on self-interest. His argument was that such choices arose because we were rational and could recognize reciprocal consistency. The sense of what was obligatory was grounded in reason precisely in Montesquieu's sense: in our ability to recognize that the maxim of an action could be commended to all without contradiction. Thus the categorical imperative, for Kant, was not a characterization of action but an impulse toward action, what Kant usually called a "motive," of a particular kind[1].

Assuming that Kant explained selflessness by postulating a pure good will, Jhering argued that such a postulate is unnecessary. What really follows is that selflessness arises from selfishness. It is selfishness tamed and channeled by the inescapable need to pursue one's interests in cooperation with others. While people do indeed sacrifice themselves for others, even give up their lives to save others known or unknown to themselves, they do not do so indiscriminately:

<>"I make sacrifices for my children, for my friends, for a common purpose. But not for the Shah of Persia, not for the building of a temple in India. My self‑denying motive is not impelled blindly, finding every purpose equally acceptable; for it criticizes and discriminates between purposes. They must all have some definite reference to me if I am to warm up to them." (p. 39)


This leads in turn to the fundamentally Kantian formulation that we live through others. We seek our ends through others, and our interaction with others occurs through the institutions which allow us to do so and which teach us how to do so. Every person is "a collaborator in the cultural purpose of humanity" (p.60).

The analysis of institutions comes next. The reasoning begins with the observation that nature economizes with the use of pleasure and pain. For animals, and for us as animals, pleasure and pain provide incentives to do things that are in our interest but which we might not know to be so. But all things which are in our interest are not pleasurable, nor are all things painful which are dangerous to us. We do not need to find pleasure in breathing or having our heart beat (although he notes that if we try to stop breathing we experience discomfort immediately), because we do them without having to make a specific choice. We do find pleasure in sexual intercourse because, in a teleological sense, it is in our long run interest to engage in it but without the incentive pleasure provides we might not do so.

As cultural institutions extend our animal experience of what will help or hurt us, so judicial institutions extend the experience of pleasure and pain. Commerce and non‑commercial systems of mutual reward extend the idea of pleasure. Coercive institutions extend the idea of pain. Neither comes into play in all action, but only in some. But — in another point where Jhering seems at first to be abandoning the optimism of Montesquieu and Kant — the mechanics of reward has to be supported by the mechanics of institutionalized coercion. Rewards are offered mutually where there can be even or better than even exchanges. In such cases there is no need for coercion. Coercion is necessary only when such exchanges are not even.

Jhering argues that all or almost all exchanges that are not immediate become uneven over time, for two main reasons. People may change for reasons extrinsic to the exchange, so what was formerly desired or feared may not remain so. Or imbalance may arise because of the sequence of deliveries in the exchange itself. If a person contracts with another to deliver a service in exchange for a payment, it will be in his personal interest to deliver the service in order to receive the payment. But once the service is delivered it is no longer in the purely personal interest of the one who has received it to make the payment. The presence of a mechanism capable of providing an appropriate threat corrects the deficiency and, ultimately, sustains the entire system.

The necessity for coercion may seem to be in conflict with the common‑sense idea that good laws should be obeyed without compulsion, and that compulsion is the very opposite of law. If all laws must be coercive, why bother to make laws on the Kantian model, laws that embody principles people would willingly follow — laws in their interest? This is the fine point of the difference between tough-minded republicanism and even the most genteel imperial visions. The answer is the self-discipline of force. It is not that all moral rules must be backed by coercion, but that all socially salient coercion must be backed by morally acceptable rules. To be expressed, the coercive power must be stated as a "norm," which regularizes and disciplines it. You cannot respond to a threat without knowing when it will apply. Moreover, self interest assures that the coercive power will be given this form. A person with the means to exercise coercive force willfully or capriciously would not find it in his own interest to do so — because in posing a danger to everyone else he ultimately also poses it to himself. In this sense while despotism does not provide "the assured order of civil society," it still contains "the germs of law" (pp.262‑265).

This is the foundation of Jhering's system. On it, he builds a view of the life of the human species as the system of human purposes and a detailed social and juridical analysis of interactions. It is, he says, a social mechanics, an exposition of the "levers" by which the parts of the social machine are interconnected, the levers by which we move each other to our purposes and are moved in turn. Purpose, ultimately, comes to motivate the entire movement of culture and to integrate all human activity into a single world society, and no act is insignificant in the process.

Jhering makes no reference to the folk-psychology of Wilhelm Wundt, but his treatment of the development of cultural forms from the mutuality of individual purposes closely parallels Wundt's Ethics (1886) and Jhering's emphasis on habit formation was consistent with contemporary psychological studies of the neurological bases of learning. Jhering also recognizes the difference in perspective between Smith's skeptical relativism, influenced by Hume and Montesquieu, and Ricardo's attempt to treat economic institutions and laws as a priori absolutes that do not develop out of and reflect the ideas and purposes of those who use them (Jhering p.150, note.) With such linkages, however arrived at, Jhering provided a powerful post-Kantian legal philosophy that was also a social theory in every sense.

Kant's major critiques (if read apart from his anthropology) had held up a liberal romantic vision of a world of good laws, obeyed spontaneously and voluntarily by good people. Jhering showed sanctions and rewards were not accidental or temporary measures until the art of legislation could be perfected. They were an essential part of the process of human self‑development, and would always be so.