In this blog post, we examine Jhering’s life and legal philosophy, focusing in particular on how the “interest theory” of rights and the concept of “legitimate struggle”—as articulated in his pamphlet ‘The Struggle for Rights’—had a profound impact on 19th-century civil law and legal thought.

Jhering and His Influence

Few figures in 19th-century German jurisprudence have had as profound an impact on law students just beginning their studies, legal scholars specializing in law—particularly civil law scholars—and legal practitioners as Jhering. Although he was a scholar of Roman law and civil law, Jhering left behind remarkable scholarly achievements in legal philosophy and legal language that greatly influenced future generations; he is regarded as one of the greatest legal scholars of the 19th century. In particular, his pamphlet ‘The Struggle for Rights’ has been translated into dozens of languages worldwide and is widely read; it has also been translated in Korea and has established itself as a recommended general education text at various universities, not only for law students but also for students in other disciplines.
Nevertheless, domestic research on Jhering’s legal philosophy has not lived up to his reputation. Jhering is cited in textbooks on property law and contract law—such as in “Introduction to Law” or the “General Principles of Civil Law”—as a proponent of the “interest theory” of rights, and when explaining the nature of legal persons and agency. His ideas are also introduced in books on the history of legal thought or legal philosophy in connection with interest-based jurisprudence or purpose-based jurisprudence. Nevertheless, detailed accounts of Jhering’s life and comprehensive studies of his overall legal philosophy remain scarce; research on Roman law—which could be considered his early field of study—is particularly sparse.
Jhering defined a right as a “legally protected interest (rechtlich geschuetzte Interesse)” and argued that such rights are not granted without effort but are won through a legitimate struggle against injustice. True to the nickname he earned during his time as a professor at the University of Vienna—“the Prometheus of jurisprudence who brought the fire of law to humanity”—he devoted himself passionately to research for the advancement of jurisprudence and spent his entire seventy-year life immersed in legal scholarship with the goal of transcending the limitations of historical and conceptual jurisprudence. The research achievements resulting from these efforts cannot be underestimated.
First, I will briefly examine Jhering’s life and major ideas; then, I will discuss the main content and significance of ‘The Struggle for Rights’ in the history of legal thought before concluding this essay.

Jhering: A Man of Intense Liberal Spirit

Birth, Education, and Worldview Jhering was born in 1818 in Aurich, East Frisia, in the northwestern corner of Germany, as the son of a lawyer. His family was a typical German middle-class family that had produced many lawyers and civil servants over generations; his great-great-grandfather, Hermann Konring, was a rare realist of his time who played a pioneering role in the fields of political science and economics. After graduating from gymnasium in 1836, Jhering studied law at the universities of Heidelberg, Göttingen, and Munich. He aspired to become a civil servant in Hanover but was unable to realize this ambition due to a regulation prohibiting him from taking the civil service exam because another family member was already a civil servant.
Although he majored in law, he was a versatile individual with outstanding artistic talent. In particular, his piano playing was of such a high caliber that he was often called upon to perform as a substitute at concerts, and he also demonstrated a deep appreciation for literature, even harboring a desire to write plays. In 1840, he moved to Berlin to continue his legal studies. In 1842, under the guidance of Homayer, he earned his Doctor of Laws degree with a dissertation titled ‘De hereditate possidente’, and in 1843, he began his academic career as a lecturer at the University of Berlin. In 1844, influenced by Puchta, he published ‘A Collection of Hermeneutic Studies on General Private Law’ and dedicated the first volume of this work to Puchta.
Jhering’s worldview was shaped by his upbringing at home and in school, his academic influences at the university, and the influence of outstanding jurists of the time—such as Thibaud and Puchta. His intense spirit of freedom and independence, his tendency to value personal integrity, his unwavering professional dedication, and his passion for the law were in harmony with the character of the people of his native Frisia. He strongly opposed oppression or coercion imposed from above and, in his early years, held political views based on idealistic liberalism.
Jhering highly valued a practical and autonomous university administration, a view rooted in his family’s traditions and the conservative academic orientation of the universities of Heidelberg and Berlin. He admired Bismarck and Wilhelm I, supported the establishment of the German Second Empire, and even described himself as a monarchist. During his student years, he showed greater interest in the arts than in religion or philosophy; his friendship with Hebbel fostered his dream of becoming a playwright, and the significant influence of Shakespeare is evident in his writings. This literary background greatly aided his scholarly work as a professor, and his writings are rich in satire, wit, and quotations from novels and plays.
Jhering’s early works were largely positivist in nature, and he espoused a conceptual-juridical methodology and a systematic, purpose-oriented approach. Jhering identified Puchta as the figure who established the system of the Historical School of Law and regarded Savigny as having also played a significant role in its development. The core of Jhering’s legal philosophy can be described as the “discovery of the abstract elements of law.” In other words, in his study of Roman law, he did not limit himself to mere historical positivism but examined institutions and ideas from teleological and cultural perspectives, while also striving to structurally unify common law theory. While acknowledging the importance of practical contributions, he sought to approach the inner spirit of the law through logical expression and structural refinement of the legal system.
From Roman Law to Beyond Roman Law: After being appointed as a professor of Roman law at the University of Basel in 1845 and then at the University of Rostock the following year, Jhering suffered the misfortune of losing his wife and mother while serving at Rostock. Seeking to recover from this shock, he left Rostock in 1849 and moved to the University of Kiel, where he immersed himself in a new research methodology and prepared to write ‘The Spirit of Roman Law’. Invited to the University of Giessen in 1852, where he served for 17 years until 1868, he published the first volume of his magnum opus, ‘The Spirit of Roman Law’, in 1852; after 13 years of work, the fourth volume was published in 1865.
Already in the first volume, it is evident that Jhering’s unique legal philosophy had entered its second phase. In this work, he argued that purely Roman elements were insufficient and that productive scholarly activity responsive to practical needs was required. While emphasizing systematic scholarly activity for specific purposes and criticizing the romantic historicism of the Historical School of Law, he did not completely exclude the historical perspective itself. He sharply pointed out the weaknesses of the Historical School of Law—such as Savigny’s theory that law arises from the national spirit—and these criticisms sparked academic debate at the time.

Jhering’s Theory of Development and Roman Law

Jhering’s theory of development differed from the traditional stages of Roman law’s development. He viewed the period up to the middle of the monarchical era as the era of the state’s “strict law,” which he understood to correspond roughly to the late 7th century. During this time, Roman law took the form of the “Law of Nations” and became a universal imperial law, undergoing various transformations over a long period of development.
In particular, during the Classical period—the heyday of Roman law—universally valid, high-level legal principles became widespread. Jhering believed that Roman law today is not unique due to Justinian’s legislative project in the 6th century, which sought to reconstruct Classical-era jurisprudence, and the post-modern efforts to codify Roman law. His view that even laws formed in a manner inconsistent with the purpose of law do not disappear but persist aligns with his understanding that such elements constituted structural and spiritual components of Roman law, which were carried forward into the common law of the 19th century.
Jhering believed that for jurists who understood the codification of Roman law as a phenomenon of legal culture, the question of whether a law was Roman or Germanic was no longer an essential issue. At the same time, he broke away from the Historical School of Law to develop a new understanding of natural law—which had been largely ignored at the time—and this marked a shift in his own thinking. This shift served as a catalyst for legal scholarship to once again focus on establishing the fundamental principles and purposes of law.

Collaboration with Gerber and Scholarly Activities

While writing ‘The Spirit of Roman Law’, Jhering continued to engage actively in research and other scholarly activities. In 1857, he co-founded the academic journal ‘Annals for the Interpretation of Modern Roman Law and German Jurisprudence’ with Karl Friedrich von Gerber, and collaborated with Gerber for many years. Gerber avoided pure legal historicism in order to establish a theory of German law, setting as his goal the “establishment of a legal system for German law.”
However, this effort ultimately led to the denial of the historical form of indigenous German law, as its starting point was derived not from indigenous German law but from Roman law as it had been adopted. The systematic organization of Roman law brought about significant changes for Jhering, and he eventually established a single system aligned with the conceptual framework of Roman law. This Pandectist approach provoked a strong backlash from the early historical school of law and Germanic legal thought.
Gerber’s thought emphasized the need for the German legal tradition to submit to the rationality of Roman law, a position that was later criticized by subsequent scholars. For example, Otto von Gierke criticized Gerber and Jhering’s methods for undermining the German spirit.
The launch of Jhering and Gerber’s journal was motivated by similar factors to those that inspired Savigny’s Historical School to launch its own journal. Jhering later sharply criticized Savigny’s journal, arguing that it was overly focused on individual studies rather than a comprehensive worldview.
Jhering contributed an essay titled “Our Mission” to the inaugural issue of the journal he founded. He bluntly asserted the necessity of studying Roman law, declaring, “To overcome Roman law, we must borrow weapons from Roman law itself. That is the path to liberation. Therefore, we must today raise the motto of our jurisprudence high: ‘Through Roman law, above Roman law.’” This assertion signaled his departure from the Historical School of Law and his shift to a new research methodology.

His Time at the University of Vienna and the “Struggle for Rights”

After experiencing personal misfortune and the death of his wife in Giessen, Jhering moved to the University of Vienna in Austria in 1868.
Vienna provided him with great cultural and artistic stimulation; it was there that he remarried and his lectures reached their peak. His lectures drew hundreds of students, and several distinguished guests, including the Crown Prince of Russia, attended as auditors. One student praised him highly, calling him “Prometheus, who brought the fire of jurisprudence to humanity.”
For his work in Vienna, Jhering was even awarded a title by the Austrian Emperor. Before leaving Vienna in 1872, he delivered a farewell lecture at the Vienna Bar Association; this lecture was published as a book titled ‘The Struggle for Rights’, which brought his name to international attention. In this book, he declared that the purpose of law is peace and its means is struggle, and argued that “you must find your own rights through struggle.” He also emphasized that the struggle for rights is a duty both to the individual and to the social community.
According to the Roman law scholar Franz Biacher, the four years in Vienna were a decisive period during which Jhering’s thought shifted from Pandectist conceptual jurisprudence to interest-based jurisprudence. ‘The Struggle for Rights’ clearly reflects this conversion and shift in Jhering’s thinking. He no longer viewed rights in the subjective sense as mere “force of will,” but rather understood them as a means of asserting power and interests.

The Completion of Purpose-Oriented Jurisprudence and the Göttingen Period

In 1872, Jhering was invited back to the University of Göttingen in Germany, where he remained until his retirement and published another major work, ‘The Purpose of Law’. In the preface to this book, he declared, “Der Zweck ist der Schöpfer des ganzen Rechts” (“Purpose is the creator of all law”), thereby announcing the founding of purpose-oriented jurisprudence.
He viewed law as a means to achieve a purpose and developed his legal theory in a highly practical and political manner. His philosophical methodology was based on the theory of psychological causality, and he understood that human beings are guided by certain concepts of purpose. The essential force driving human will is interest, and interest is an indispensable condition in all actions.
For Jhering, law was not an organization that sets the limits of abstract numbers, but rather an organization that reconciles conflicting interests. Legal concepts possess no productive power in and of themselves and are not ultimate. Therefore, he believed that jurists must abandon the attitude that legislators must blindly respect legal concepts. He argued that one legal rule cannot be deduced from another through simple deduction alone, and criticized the blind faith in the strict principles borrowed from mathematics as dogmatic.
Jhering believed that the world of legal concepts created by legal professionals could not be independent or self-sufficient in and of itself. Society does not wait for interpretations tailored solely to the needs of legal professionals, and people should not become complacent within the framework of legal concepts. Legal principles should not be extended solely through simple analogy; they only have meaning when they accurately resolve actual legal conflicts. A judgment should not merely be the act of forcing a case into a legal category, but rather a decision that takes concrete interests and purposes into account. His conclusion was that a judge is not a being who mechanically renders judgments based on established legal principles, and that justice, too, is not a fixed standard but a concept that varies according to proportionality and circumstances.

Jhering’s Perspective on the Purpose of Law and the Creation of Law

From a legal perspective, humans are selfish, but they also possess the capacity for altruism. The primary means devised by humans to solve social problems are reward and coercion. Jhering understood law not as an absolute end in itself, but as a means for the existence of society.
Much like Darwinian evolutionary theory, there is a view that one purpose necessarily arises from another. Just as causes influence the formation of matter, purposes exert a powerful influence on the formation of law through the act of willful creation. Law is always defined by these purposes and does not make sudden leaps, as nature does. Therefore, a preceding element must exist before a higher-order element appears, and where the former exists, the latter inevitably emerges.
Through a process of conscious or unconscious abstraction from the synthesis of all particular things, universal concepts—such as legal concepts, legal institutions, and the meaning of justice—are created. It is not a sense of justice that creates law; rather, law creates a sense of justice. Therefore, the source of law can be understood as the actuality of a single purpose.
This is precisely the evolutionary process of purpose observed in the history of law, and rationalist thought underlies the concept of purpose presented by Jhering. Teleological jurisprudence views the development of legal concepts as grounded in the evolution of purpose, and Jhering sought to break away from traditional conceptual jurisprudence through this logic. He devoted his entire life to legal scholarship and died in Göttingen in 1892.

The Rationale for the Existence of Law and Rights

Founding Teleological Jurisprudence

Jhering’s legal philosophy is evident in major works such as ‘The Spirit of Roman Law’, ‘The Struggle for Rights’, and ‘Purpose in Law’, as well as in numerous articles. His philosophy can be summarized in a single phrase: “teleological jurisprudence” or “interest-based jurisprudence.” Jhering defined a right as a “legally protected interest” and argued that one must struggle to defend such rights, and that rights and the law are secured through this struggle.
He viewed the law not merely as an abstract concept but as a living force, and in the preface to ‘The Struggle for Rights’, he stated that the purpose of publishing this expanded edition was to urge a practical and courageous attitude rather than to present an academic argument. Throughout the work, he explains the raison d’être of law and rights in a passionate tone befitting the title “Struggle.”

The Origin and Purpose of Law and Rights

For Jhering, the ultimate purpose of law is peace, and law—as a means to that peace—requires struggle. Since the unjust infringement of laws enacted to maintain peace will continue as long as the world endures, the struggle cannot cease as long as such infringements persist. The life of the law is struggle, and the law is maintained through the struggle between nations and state power, as well as between social classes and individuals.
Jhering’s central argument is that when laws or rights are unjustly infringed upon, they must be preserved through lawful struggle. All laws are won through struggle; nothing is simply given. Important legal provisions are generally the result of being wrested from the hands of those who oppose them.
Whether individual rights or national rights, rights are not guaranteed on their own; asserting them requires constant preparation and effort. Law is not merely an idea but a living force. In the metaphor of “Lady Justice,” both the scales in one hand and the sword in the other are necessary. A sword without a scale is merely physical violence, and a scale without a sword is a powerless law. Only when the scale and the sword are used in harmony can a complete state of law be realized.
Therefore, Jhering argues that maintaining the state of law requires constant struggle and labor, and that peace without struggle or pleasure without labor cannot exist in reality.

The Individual’s Struggle for Law and Rights

Jhering declared as the motto of this book, “You must find your own rights through struggle.” This refers to lawful resistance against unlawful infringements of rights; it is not merely an encouragement to file lawsuits. The struggle for rights is intended to achieve the ideal goal of protecting the right-holder’s personality and their personal sense of justice.
To shirk the struggle for rights is to abandon the duty one must fulfill as a human being. For the law to endure, courageous resistance to illegality is necessary, because the surrounding environment often tempts people to cowardly flee from illegality.
Jhering firmly asserted that it is the duty of the rights holder to resist illegal acts that infringe upon their person—that is, infringements that disregard rights or take the form of personal insults. This is because it is a command of moral self-preservation. Furthermore, this struggle is not merely an individual duty but also a duty of the social community.
If an individual neglects their rights even when they have been infringed upon, it is not merely a problem for that individual; it also infringes upon the rights of neighbors and the community who find themselves in the same situation. An individual’s renunciation of rights is tantamount to a renunciation of their duties as a member of society. The assertion of rights is a matter of moral self-preservation corresponding to the self-preservation instinct of all living beings, while the renunciation of rights can amount to moral suicide.

The People’s Sense of Justice

According to Jhering, the motivation for the struggle for rights begins with simple self-interest, progresses through a struggle for personal dignity and ethical conditions of survival, and ultimately reaches the stage of realizing the ideal of justice. Since the benefits of this struggle extend not only to private rights but also to all rights, including public rights, it applies to the entire legal life of the people.
Since the people are merely the sum of individuals, if the legal sensibility of the individual is dull, cowardly, or insensitive, the legal sensibility of the people as a whole cannot develop freely under its influence. If legal sensibility is suppressed and people come to accept a state of lawlessness, they will not be prepared to react immediately and sensitively when political freedoms are infringed upon or the constitution is overthrown.
How can a person who lacks the habit of courageously defending their own rights in private life be willing to sacrifice their life and property for the rights of the whole? A person who views rights solely as a measure of material gain will find it difficult to feel differently when the rights and honor of the people are threatened.
Jhering viewed judicial life as the true school of political education for the people. The sense of rights sown like seeds in judicial relations bears fruit in constitutional and international law. By observing how each individual asserts their rights in private life, one can discern how a nation will defend its political rights and international standing in times of crisis.
A nation that seeks to be respected internationally and to occupy a firm position domestically must thoroughly protect and encourage its citizens’ sense of justice. Such protection and encouragement constitute a vital task in political education, and a nation’s strength is ultimately sustained by its citizens’ robust sense of justice. The struggle for rights stems from a sense of justice that transcends self-interest, and the strength of a nation or people derives from this sense of justice.

The Issue of the Struggle for Rights in German Common Law

Jhering devoted a chapter to expressing his views on the common law school—specifically, the Pandectist school—which dominated the German legal community in the mid-19th century. In his work, he offered an overall negative assessment of German common law.
According to him, Roman law at that time was far removed from the legitimate demands of sound legal sentiment. The reason for this was not that German common law contained various forms of inaccuracy, but rather that the dominant method of study failed to conform to the essence of sound legal sentiment.
Considering the idealism that views a violation of rights not merely as an attack on the object of the right but also as an attack on the person itself, Jhering believed that German common law did not support such idealism at all. He criticized German common law for using only material value as the yardstick for measuring all violations of rights, arguing that this amounted to nothing more than dry and mundane materialism.
Jhering viewed Roman legal sensibility as having developed in three stages. The first was the era of ancient Roman law, when its scope and control were still inadequate; the second was the period of Middle Roman law, when legal sensibility possessed legitimate force; and the third was the late imperial era—particularly the era of Justinian—when legal sensibility declined and contracted.
As a result of his analysis of these developmental stages, he pointed out that the history and efficacy of Roman law had placed simple legal doctrines in a position of superiority over all other factors—such as the legal sensibilities of the people, legal practice, or legislation—that shape the formation and development of law. In German common law scholarship, Roman law—written in a foreign language—was introduced by scholars, and since only they could fully understand it, two entirely different legal systems emerged from the outset, sometimes in opposition to one another or as alternatives.
Jhering believed that a pure and natural historical understanding of the law benefited its practical application and development. However, regarding foreign law written in a foreign language, the legal practice community lacked the power to fully master the source materials, falling into an immature state of continued subordination to theory, while factionalism in the judiciary and legislature remained at a stage too weak and underdeveloped to achieve centralization. Consequently, he argued that a persistent gap existed between the public’s sense of justice and the law in force; the public did not understand the law, nor did the law understand the public.
Jhering identified two major errors on the part of common law scholars. First, they overlooked the fact that, in cases of rights infringement, the issue of compensation was not limited solely to monetary value. Second, there was a fundamental flaw in the theory of proof established by modern jurisprudence.
Regarding the first error, Jhering pointed out that although Roman law adhered to the principle of rendering final judgments solely in monetary terms, it also recognized ways to protect not only monetary interests but also other legitimate interests—such as compensation for the infringement of legal sensibilities—when applying monetary damages. Monetary compensation was a civil enforcement measure designed to ensure compliance with the judge’s order, and the defendant’s liability for nonperformance also had a punitive character that could not be discharged by mere monetary compensation alone. The effect of such a lawsuit provided the plaintiff with ethical satisfaction that, in some cases, was far more valuable than money.
The concept of such ethical satisfaction was virtually absent from Roman law theory at the time, and that theory did not fully grasp forms of compensation for breach of contract other than monetary value.
As a second error, Jhering viewed the modern legal theory of proof as having been misunderstood as a tool to render rights hollow. People believed that this theory of proof was overly formalistic and thus failed to effectively protect creditors. Jhering criticized that the absurdity of this theory of proof reached its peak in actions for damages and actions for profit.
He paradoxically argued that in German common law scholarship and practice, it was not the creditor but the debtor who was actually protected. In other words, he observed an attitude that deemed it preferable to tolerate a result that clearly disadvantaged hundreds of creditors rather than treating a single debtor strictly.
The core argument Jhering put forward in this book can be summarized as the concept of a legitimate struggle against unlawful infringements of rights. He viewed this legitimate struggle as the eternal labor of the law. Just as there can be no property without labor, neither the law nor rights can exist without struggle. Just as the principle “You shall not eat bread without the sweat of your brow” holds true, the truth that “You must claim your rights through struggle” aptly represents his philosophy.

Jhering’s Influence on Later Generations

Impact on Legal Methodology

The legal methodology proposed by Jhering in the 19th century is widely regarded as having contributed significantly to the establishment of 20th-century legal methodology. While scholars of the Neo-Kantian school were actively conducting research on legal methodology in the early 20th century, Jhering was already recognized as having pioneered the field.
The focus of his methodology lay in legal cognition—that is, the construction of legal concepts and their relationship to the realm of real-life materials preceding the study of law. Jhering viewed legal concepts as distinct from pre-legal concepts of nature, pre-legal concepts of culture, and those derived from purely legal constructs; he referred to the process by which various pre-legal concepts are absorbed into legal concepts as the “precipitation of legal principles into legal concepts.”
He argued that through this process, legal thought forms an independent world distinct from both the natural world and the specific commands of the legislator. At the same time, he believed that the logic of legal thought cannot guarantee logical purity because it is constrained by the functional aspects of law—namely, its applicability and practicality. Consequently, Jhering opposed the conceptual-juridical position, advocated for teleological jurisprudence, and called for methodological self-reflection within jurisprudence.
Jhering both fulfilled and transcended the program of the Historical School of Law. He persuasively demonstrated—through the spirit of Roman law—the connection between law and national spirit, a connection that the Historical School had merely asserted without specifying concrete objectives. He argued that the assessment of other nations’ legal systems should be judged based on their purposefulness rather than viewed as a matter of national character, and sought to observe Roman law as a cultural phenomenon.
Furthermore, while he replaced the Historical School’s irrationalism with rationalism, he sought to shape jurisprudence not as philosophy but as a theory of historical sociology—based on the perspective of a practical, irresistible dialectic of purpose, rather than Hegelian conceptual-logical dialectics.

Impact on Civil Law

Through his research on new legal concepts and institutions in civil law, Jhering exerted a significant influence on the compilation of the German Civil Code and the interpretation of positive law. He identified or developed new concepts that were previously absent from German civil law scholarship at the time, as well as clarified ambiguous concepts.
Among his most notable achievements was the discovery of the concept of the assignment of the right to claim restitution of property (Vindikationszession). Although this concept, first proposed by Jhering, was not immediately ready for inclusion in German civil law without further research, it played a crucial role as foundational research for subsequent legislation. Originally, the assignment of the right to claim restitution of property was a concept unknown even in Roman law.

Agency (Acts of Agency) and Jhering’s Perspective

Second, agency (Stellvertretung) can be cited as an area similar to the function of creating new legal concepts. Two issues arise in the field of agency. The first is whether to accept the principle of abstractness—which was completely rejected by Paul Laband in the context of power of attorney—and the second is the issue of the principle of nominalism, clearly stipulated in Section 164 et seq. of the German Civil Code, which states that “an agent must exercise the power of attorney in the principal’s name.”
Jhering essentially narrowed the concept of agency. He advocated the “theory of representation” (Repraesentationstheorie), holding that while the agent is the legal actor, the legal effects are directly attributed to the principal through the agent’s legal effects. He viewed the substantive point at which legal effects arise as always lying in the agent’s expression of intent. This theory is highly regarded for enabling a unified understanding of voluntary and statutory agency, clearly distinguishing between agency and mission (代理), and upholding the principle of nominalism. In Korea as well, this view holds the status of the prevailing doctrine.

The Nature of Possession

Third is the issue concerning the nature of possession. Originally, possession refers to factual control over a thing, and this factual control signifies an objective relationship. In 19th-century German civil law scholarship, there was a fierce debate over whether possession is established by an objective relationship alone or whether subjective requirements are also necessary.
Regarding the theory of the nature of the right of possession, Jhering adopted a position closer to the objective theory. He held that possession is sufficient with the organic element (corpus) alone and does not require a separate psychological element (animus). However, while he did not consider a specific intent to be necessary as a psychological element, he maintained that for the organic element to be established, an intent to exercise actual control over the thing—that is, an intent to possess the thing—is required.

Negligence in the Formation of a Contract (Culpa in contrahendo)

Fourth is the establishment of the concept of negligence in the formation of a contract. This concept originated in Jhering’s 1861 essay, “Liability for Negligence in the Formation of a Contract, or Damages in the Case of a Void or Unenforceable Contract.” Jhering criticized the prevailing common law view at the time—that “no liability is imposed on the parties when a contract fails to be validly formed”—and argued that damages resulting from the belief that the contract was valid, namely, the benefit of reliance (passive contractual interest), should be compensated.
However, Jhering did not comprehensively analyze all matters that are today addressed under the issue of culpa in contrahendo. He focused primarily on analyzing the liability of a party who made a declaration of intent based on mistake after exercising the right of rescission, the liability of an unauthorized agent, and the liability of a seller who sold a non-existent item. In these cases, he argued that the party exercising the right of rescission, the unauthorized agent, and the seller must compensate for damages that would not have occurred had the contract not been concluded—that is, negative damages. This view was reflected in certain provisions of the German Civil Code. Although no separate general provision regarding negligence in the conclusion of contracts was established, the fact that his theory was incorporated into the Civil Code serves as a testament to its excellence.

Conclusion

We have briefly examined the life of Jhering, who is regarded as the Prometheus who kindled the flame of legal scholarship, and his philosophy centered on the “struggle for rights.” His legacy as a scholar, who devoted his entire seventy-year life to legal research, will continue to shine brightly for generations to come.
As evident in the many books and papers he left behind, Jhering possessed exceptional linguistic skills and adeptly expressed the core of his legal philosophy through wry humor and concise slogans. For example, his statements—“Through Roman law, above Roman law” regarding the necessity of studying Roman law; “Purpose is the creator of all law” regarding teleological jurisprudence; and “You must discover your own rights through struggle” regarding the assertion of legitimate rights—summarize his legal philosophy. As these expressions reveal, Jhering rebelled against the metaphysical abstraction and conceptual games that dominated German legal scholarship at the time; he overcame historical and conceptual jurisprudence to found teleological jurisprudence. Furthermore, through his research on civil law, he devised new concepts and institutions.
Jhering rejected the view that law arose spontaneously through history and emphasized that law is a purposeful entity whose purpose is always achieved through struggle. In particular, his perspective—that law was created for social purposes and should be understood as a means of safeguarding individual interests only to the extent that they are socially approved—opened new horizons of understanding in an era dominated by an individualistic view of law.
Jhering’s concept of the “struggle for rights” emphasizes that asserting one’s legitimate rights is a duty both to oneself and to the community. However, such a struggle is justified only when opposing unlawful or unjust infringements on legitimate rights; it does not imply an unlawful struggle against the restriction or limitation of legitimate rights. This is by no means an endorsement of litigation.
In modern society, following democratization and the establishment of freedom of the press, the slogan “struggle” is widely used and can be seen wherever there are disputes and conflicts—such as in the workplace, at street protests, or at redevelopment sites. Even without explicitly using the slogan “struggle,” behaviors interpreted in the same vein—such as “squatting” or collective, self-interested “tantrums”—are easily found. Many of these intense struggles are far removed from the “struggle for rights” described by Jhering.
The illegal and unjust claims to rights or struggles that are rampant in our society must be condemned, if only for the sake of communal peace. This is because unjust claims to rights directly infringe upon the legitimate rights of neighbors or other rights holders. At times, we see instances where public authority is ignored or violated, and it is common to observe that when the law proves powerless, yet another struggle is sparked.
In ‘The Struggle for Rights’, Jhering warned against unjust claims of rights just as much as he advocated for legitimate ones. His warning serves as valuable advice for modern Korean society as it strives to develop into a late-industrial society. We hope that Jhering’s assertion—that while we must constantly struggle for legitimate rights, unjust struggles against the lawful enforcement of the law or the exercise of legitimate rights must be thoroughly condemned—will be realized in our society.