Jhering's Heaven of Concepts and Modern Analytical Jurisprudence

The article by Herbert Hart, an English legal philosopher, that is brought to the reader's attention is an eponymous talk he gave at a symposium in Gottingen (Germany) in 1969 in honor of the 150th anniversary of the birth of Rudolf von Jhering. In the first part, Hart tries to demonstrate the influence of Jhering's views on representatives of American legal realism (first of all, Oliver Wendell Holmes and his followers) and of sociological jurisprudence (Roscoe Pound), and also to show that Jhering's legal doctrine is almost a conceptual core of the emerging analytical jurisprudence. At the same time, Hart does not seek to give a complete description of Jhering's legal doctrine, but analyzes only its part in which Jhering attacks the Begriffsjurisprudenz (“jurisprudence of concepts”) fashion, or “conceptualism” in the interpretation of American legal tradition. The viciousness of jurisprudence of concepts, according to Hart, is the belief that legal concepts are fixed or closed in the sense that it is possible to define them exhaustively in terms of a set of necessary and sufficient conditions. However, this belief about the nature of legal concepts is simply wrong. We cannot foresee all possible circumstances that the future may bring and that may affect the content of the formulated concepts. In this sense, legal concepts are “open”, and, when an unforeseen case arises, we must make a fresh choice, and in doing so elaborate our legal concepts, adapting them to socially desirable ends. The second part of the article describes the genesis and distinctive features of analytical jurisprudence and its usefulness for explaining “open” legal concepts. In particular, Hart proposes to distinguish two phases in the development of analytical jurisprudence: the first is associated with the names of Jeremy Bentham and John Austin, the second with Ludwig Wittgenstein and John Langshaw Austin. Further, Hart considers two examples from philosophy, which, in his opinion, underlie this new form of analytical jurisprudence and demonstrate that this form is far from Begriffsjurisprudenz. It is about Porositat der Begriffe (“open texture”) and performative utterances, which, being developed in the framework of the linguistic philosophy of the 20th century, influenced the development of analytical jurisprudence.

Keywords

Authors

References