Rudolf von Jhering?s ?struggle for law? ? the rejection of alternative forms of dispute resolution?

Abstrakt

Rudolf von Jhering?s famous lecture entitled ?The Struggle for Law? which, since its first publication in 1872, has counted among the most frequently translated papers in jurisprudence ever, contains two main theses. One is devoted to explaining the creation of law. In contrast to Friedrich Carl von Savigny, the founder of the Historical School of Jurisprudence, Jhering ascribed the creation of the legal order of his time to the state legislator when viewed from the perspective of the sources of law and to whichever individual or group interests emerged victorious from power-political struggles when viewed from the perspective of its content. With this thesis, Jhering drew on a view that was beginning to emerge in the mid-19th century society which, in a manner that pointed to the future, saw the source of law as being rooted in the struggle for power of different interest groups within society. Jhering?s second main thesis transferred this view onto the process of the application of law in court. He maintained that since all dictates of justice, as resulting from this struggle for power, were nothing more or less than interests with legal protection and since the law only became real when it was actually applied, a person fighting for their legal right in court was not only fighting for their own right but also for the law in general and thus for justice. However, according to Jhering, the creditor?s duty to society to rigorously enforce their claim against the debtor, albeit not by force but exclusively by legal means, only applied in cases where the rights of the creditor and, therefore, the legal order as a whole were specifically questioned by the debtor because he denied the claim against his own better judgement. By making this important qualification of his second main thesis, Jhering acknowledged that in certain specific cases the creditor could indeed have legitimate reasons, for instance of a moral or economic nature, to decide not to insist on enforcing his rightful legal claim
against the debtor. Therefore, modern mechanisms of dispute resolution such as arbitration, which Jhering would have been familiar with based on his knowledge of the Roman arbiter, or mediation, are not contradictory to Jhering?s theses on the ?struggle for law?. However, like many of
his contemporaries who praised the theses of his lecture, Jhering, in his idealising and moralising the pre-capitalist view of the enforcement of law, was solely focused on the personal relationship between the creditor and the debtor, and not on legal disputes in the anonymous world of publicly traded companies which were already beginning to emerge in Jhering?s lifetime in the western European heavy and transport industries.