oa Fundamina : A Journal of Legal History - Rudolf von Jhering (1818-1892) - lewe en werk van 'n groot Duitse juris en sy invloed ook op die Suid-Afrikaanse reg
Von Jhering's work bears the overall mark of a critical fundamental legal thinker who excelled in clearly defining the formulation of fundamental principles of the law and consequential reasoning along those lines. The reasoned balancing of the opposing interests of all concerned is at the centre of legal reasoning. Without hesitation he dismissed accepted doctrine when it could not stand up to the test of the fundamental laws of legal logic. He was, however, the first to acknowledge when his own previous reasoning faltered and to offer a better reasoning. A lifelong conviction that legal theory alone has no justification caused him, as part and parcel of his analytical reasoning, to use examples taken from seemingly well-known practice to expound very complex legal reasoning to great advantage of those addressed - students and seasoned lawyers alike. His two principal works are Geist des römischen Rechts and Der Zweck im Recht, but the work that led to his instant fame also outside the borders of the German legal landscape was his Der Kampf um's Recht (1872) that developed from his farewell speech on his departure from Vienna. Von Jhering's clear formulation of the minimum requirements for a legal curriculum is still valid. The non-fulfilment of those requirements lies at the root of many of the less fortunate decisions that have lately been reported from our higher courts. It is no coincidence that the first reference to his thinking in the South African law reports concerned his reasoned qualification of what a qualified lawyer should be able to understand before cloaking himself with the title of a jurist.
Article metrics loading...