Introduction
It can hardly be claimed that Jhering was the first to raise the enduring problem of legal method, but never before or since has the purely conceptual method been assailed with greater vigor or efficacy. Jhering’s chief merit here lies in his having brought this question into clear relief and in having advanced the teleological factor which resides in all legal rules. Neither the “Geist” nor the “Zweck” contains a minute and thoroughgoing analysis of the problem of legal logic, and the “Scherz” was much too literary in quality to furnish a solution. Jhering combated the over-extension of the conceptual process, but the ardor of satirical attack did not permit him to examine to find the boundaries of its necessary and justifiable operation. Nor does an inspection of the later literature of legal method disclose, in German literature at least, except in a few noteworthy instances, that the weapons of offense have been melted down to implements of husbandry.[1]
- ↑ See in this connection, Gnaeus Flavius (Kantorowicz), “Der Kampf um die Rechtswissenschaft” (1906), and the authorities entered on p. 50. The realistic trend of thought which had its origin in Jhering’s war on the concept jurisprudence is now known in Germany under the name of “freie Rechtsfindung” after Ehrlich’s book of that title. Strangely enough, this tendency in legal method has attracted representatives from the most diverse positions in legal philosophy.
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