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Introduction
Stufen seiner Entwickelung” (4 vols., 1852-65); (4) “Das Schuldmoment im römischen Privatrecht” (1867); (5) “Über den Grund des Besitzeschutzes” (1868); (6) “Die Jurisprudenz des täglichen Lebens” (1870); (7) “Der Kampf ums Rechts” (1872) (the present work); (8) “Der Zweck im Recht” (2 vols., 1877-83); (9) “Vermischte Schriften juristischen Inhalts” (1879); (10) “Gesammelte Aufsätze” (3 vols. 1881-86); (11) “Das Trinkgeld” (1882); (12) “Scherz und Ernst in der Jurisprudenz” (1885); (13) “Der Besitzwille: Zugleich eine Kritik der herrschenden juristischen Methode” (1889); and posthumously: (14) “Vorgeschichte der Indo-Europäer” (1894); (15) “Entwickelungsgeschichte des römischen Rechts: Einleitung” (1894).[1]
- ↑ Jhering has been fortunate above all his jurist contemporaries in a wide and important extension of his writings into foreign tongues. The “Geist” (No. (3) ), and several of his other works have been translated into French; there has also been an Italian translation of the “Geist,” and further translations based on the French, into Portuguese, Spanish, and Japanese. Although no European jurist is better known in America or England than Jhering, there has unfortunately been no English translation of this work, parts of which are of great importance for what Austin calls “general,” and what Salmond styles “theoretical” jurisprudence. The “Jurisprudenz” (No. (6) ) according to the author’s preface to the eighth edition (1891) had been then already translated into Italian, Hungarian, Greek, and (in abridged form) into Portuguese. An English translation has been done by Henry Goudy (Oxford, 1904). This work is considerably used by teachers to good advantage; the present writer has found it useful in examinations in analytical jurisprudence. Jhering’s keen sense of legal realities is here shown developed to the highest degree. No one but a man thoroughly saturated with the feeling of the omnipresence of the law and legal relations would think of raising the question whether a guest at a hotel can take away the candles with which he has been charged, or whether he can put into his pocket fruit served at the dinner table (Goudy’s translation, p. 24). Dr. Wigmore, dean of Northwestern University School of Law, perhaps, under the suggestion of this notable use of the incidents of everyday life, has published in his casebook on torts a collection of instances very similar in their novelty, interest, and analytical value. The “Zweck” (No. (8) ) has been translated into French and the first volume is soon to be issued [now out] in an English translation of Dr. Isaac Husik of the University of Pennsylvania (“Modern Legal Philosophy Series,” Vol. v), by The Boston Book Company. This translated volume will contain valuable introductory material which the present writer regrettably was not able to consult. Legal humor is an ancient institution; it is the agency which humanizes the bloodless operations of the legal machine. Even the Olympian gods indulged their levities, and did not narrow themselves to councils of lightnings and thunderbolts. Juristic humor, however, is something quite unknown in our literature. The nearest approach, to take a recent example, is Sir Frederick Pollock’s “Genius of the Common Law,” a work dealing with the strains and thrusts of our legal system. The chapter entitled “Surrebutter Castle” shows what a lighter touch may do with such a recondite and bitter subject as special pleading. But Sir Frederick’s humor in comparison with von Jhering’s is always somewhat Saturnine, or, even from another point of view, Euclidean. Jhering’s contribution to this form of writing is his “Scherz und Ernst” (No. (12) ) which is made up of anonymous articles published while he was at Giessen, and “Talks of a Civilian” published at Vienna. The vehicle is one of amiability, but the theme is a serious one for the law. It may be considered a loss to us that this work is not in English, since the problems raised there are just now of special interest in view of the widespread changes which are giving an entirely new character to the whole face of the Common Law. Of the remaining works the “Vorgeschichte” (14) has also been translated into English. This work has not added anything to Jhering’s fame, and it may be questioned whether he had sufficiently familiarized himself with the extensive range of working materials upon which such an ambitious undertaking should of necessity be founded. This work therefore in the field of universal history is defective for the same reason as the “Zweck” in the department of general philosophy, in that it attempted problems beyond the author’s special knowledge and experience.
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