Ist Jherings Wiener vortrag ?Der Kampf um?s Recht? auch heute noch eine taugliche Grundlage des Rechtsverständnisses? Gedanken zu Jherings Thesen

Abstrakt

1. It is nothing more than an assertion that legal enforcement is an indispensable and essential condition for both the existence and continued existence of a right enshrined in law. Although it is true that the resolution of conflicts of interest is part of the very essence of the law, this does not however mean it has to occur by means of legal action. It is true that winning a lawsuit strengthens one?s faith in the legal system, but only with regard to the victor, not the loser.
2. Jhering?s argument that the exercise of subjective rights constitutes a moral duty to prevent attacks and that this is a prerequisite for the functioning of the legal system is not convincing. It is not obvious and does not stand to reason that the validity and the continued existence of a right can be said to depend on compliance with a non-legal duty, namely a moral duty. Nor is it the case that a moral duty that is capable of altering, generally speaking, the core properties of the subjective right should be complied with, namely by depriving the beneficiary of his freedom to reach a decision on whether to exercise the right or not. Ultimately, the subjective right would as a consequence be transformed into its exact opposite: any person with a moral compass would be under an obligation to act. He would, so to speak, be required to sacrifice his own well-being, his conviction, for the sake of the law. In so doing, no consideration whatsoever would be given to the question of whether, as
discussed in the teachings of Kant, it is even at all possible for a person to owe a duty to himself.
3. Furthermore, even the reasons that lead Jhering to claim such a moral duty exists are not persuasive. Self-reverence, life circumstances, honour and so on, may be important values for our existence, but they do not provide any justification for the assumption that a beneficiary would owe it to himself to assert his legal rights. 4. The objections to Jhering?s theory, not to mention his vision, are even more valid today than they were during Jhering?s lifetime. This has to do with the fact that nowadays the general public no longer has any understanding of the philosophical foundation underpinning the law, whereas at the end of the 19th century this arguably was the case at least for a certain stratum of the educated classes. Furthermore, very few understand the values that are of considerable importance to Jhering?s legal theory, and they count for less today than they did in the past. In particular, the general public does not accept the imposition of any duties on the basis of these values, nor is the general public inclined to allow their own interests to take second place to the alleged needs of the legal system. It is today?s consensus that if someone?s rights are infringed upon, the decision whether to pursue and enforce these rights is based on that person?s own interest, in particular whether the enforcement of these rights is promising, useful and reasonable. It has been the prevailing opinion at all times that this pertains to the nature of a subjective right.
5. There are numerous fields of law, in particular criminal law, but also constitutional and administrative law, in which the struggle by the individual for his/her rights does not play a major role or indeed any role at all. It is difficult to believe that Jhering wished to deny the legal status of these laws.