IHERING’S SOCIAL INTEREST THEORY: A CRITICAL STUDY

IHERING’S SOCIAL INTEREST THEORY: A CRITICAL STUDY

INTRODUCTION:-

        Ihering was educated at berlin in Germany. He was professor at Basel. His spirit of law was published in four volumes during 1852-1865.later,he published his principle work which translated as ‘Law As Means To An End ‘in 1913.In this work he criticised the nation of individual freedom and liberty as advocated by Kant and Bentham as they had divorce legal theory from social realities .He thus opposed the doctrine of individualism which ,in his view was incompatible to the cause of social justice.Ihring opined that social interest of the society must gain priority over individual interest and the purpose of law should be to protect the interest of the society. His legal philosophy on sociological aspects of law.[1]

         Ihering laid the foundation of modern sociological jurisprudence by this insistence on treating law as one of the important factors to control the social organism .According to him i)Law has a coercive character ;ii)it has only a relative value; and iii)it has to be evaluated in the social context .Thus he treated law as an effective instrument for the attainment of social purpose. But the Ihering‘s legal theory has been criticised for two reasons, firstly, Ihering’s theory is that it points out only the problems and not the solutions. He say that the task of law is to reconcile the conflicting interest but he does not say in which direction it should be done.

Secondly, some jurists have criticized his theory by saying that law protects the ‘will’ and not ‘purpose’ as stated by Ihering.

SOCIOLOGICAL SCHOOL:-

        Sociological school of Jurisprudence has emerged as a result of synthesis of various juristic thoughts .The exponent of this school considered law as a social phenomenon. They are mainly concerned with the relationship of Law to other contemporary social institutions. They insist that the jurist should focus their attention on social institutions. They insists that the jurists should focus their attention on social purpose and interest served by law rather than on individuals and their abstract rights .According to this school, the essential characteristic of law should be to represent common interaction of men in social groups, whether past or present, ancient or modern.

               Rosco pound ,Ihering,Enrlich,Duguit are the jurist of Sociological school and they linked ,Law with other social science disciplines and treated it as a synthesis of psychology ,philosophy, economics, political science,sociology,etc. According to them, Law was an applied science employing functional methods of investigation and analysis for solving the social and individual’s problems. In their view, law is concerned with its effect on society and therefore, it would be erroneous to treat it as a mere command or God’s will or the people’s conscience.

           In 1981 Ihering formulated the basic underlying relation of this school in these terms-‘formerly there was high valuing of property and lower valuing of person .Now there’s lower valuing of property and higher valuing of person’.

IHERING THEORY OF LAW[1818-1892]:-

         According to Ihering ,law is a part of human conduct and in the idea of purpose, Ihering found the mainspring of laws, which are only instruments for serving the needs of society. The problem of the society is to reconcile selfish with unselfish purpose and to suppress the former when they clash with the lattes .Ihering stressed that law does not exist for the individual as end in himself, but serves his interest with the good of society in view. Man as a social animal stands on a superior plane to man simply as an animal. For example, Property is both a social and individual’s rights. In order to reconcile the individual with society ,it is necessary to balance various interests, into three categories:-

1) Individual interests

2) State interests, and

3) Social interests.

Ihering says that the social activities of people need to encouraged, and this is accomplished by means of the ‘principle of the leavers of social motion’. There are four principles which direct men towards social ends or to engage in social activities:-

1) Principle of Reward

2) Principle of Coercion

3) Principle of duty ,and

4) Principle of Love.

Ihering theory develops aspects to austinian positivism and combines them with the principles of utilitarianism as established by Bentham and developed by Mile.

According Ihering ,the development of law like its origin is neither spontaneous nor peaceful .It is result of constant struggle or conflict with a view to attain peace and order .

Ihering takes law as a means to an end. The end of law is to Serve purpose .This purpose is not individual but social purpose when individual purpose comes in conflict with social purpose,the duty of the state is to protect and further social purposes and to suppress those individual purposes which clash with it.This end may be served either by regard or by coercion and it is the later which is used by the state. Therefore law is a coercion organized in set form by the state. But it should not be gathered that law is the only means to control the social organism ,or it alone can protect further all the social purposes .Law is only one factor among many others.[2]

JURISPRUDENCE OF INTERESTS:-

       Rudolph Von Ihering legal philosophy is known the ‘Jurisprudence of interests ‘which emphasises sociological aspects of law .The main tenets of Ihering’s jurisprudence of interests are as follows:-

          Law is result of constant struggle:-Ihering’s pointed  out that the origin of law is to be found in social struggles ,he accepted that the role of is to harmonise conflicting interest of individuals for the purpose of protection of the interest of the society as a whole.

          Law is to result of Constant Struggle:-Ihering considered law as a means to an end. The ultimate end of law is social purpose are not the individuals for the purpose of protection of the interest of the society as a whole.

          Law is to serve a social purpose :-Ihering considered law as a means to an end. The ultimate end of Law is social purpose are not the individual purpose or interest. It is the duty of the state to promote social interest by avoiding a clash between the individual and social interest .He even justified coercion by the state for the purpose of protection of the social interest.

Law alone is not a means to control the society:-Ihring made it clear that law alone was not the means to control the social organism .There are some other conditions such as climate, topography etc. However there are certain aspects of social life which can be regulated and controlled exclusively by the intervention of law ,such as raising of taxes and revenues. Like Bentham ,Ihering also defines ‘Interest’ in terms of pleasure and pain, that is pursuit of pleasure and avoidance of pain may be called as’ Interest’. It is mainly for this reason that Ihering’s theory has been called as “social Utilitarianism”. He considers punishment as a means to a social end. He is opposed to retributive penal policy.

IHERING’S CONTRIBUTION:-

        Ihering’s Contribution to the science of Jurisprudence has been acknowledged by Friedman who calls him the ‘father of modern Sociological jurisprudence’. Ihering traced the development of various legal systems by adopting comparative method of study and came to the conclusion that law develop by conscious efforts .He was a critic of savigny’s historical theory and natural law theories propounded by his predecessors.

Ihering laid the foundation of modern sociological jurisprudence by this insistence on treating law as one of the important factors to control the social organism .According to him i)Law has a coercive character ;ii)it has only a relative value; and iii)it has to be evaluated in the social context .Thus he treated law as an effective instrument for the attainment of social purpose .His theory was later developed by Dugit,Rosco pound and others.

CRITICISM AGAINST IHERINGS THEORY:-

         Ihering‘s legal theory has been criticised for two reasons, firstly, Ihering’s theory is that it points out only the problems and not the solutions. He say that the task of law is to reconcile the conflicting interest but he does not say in which direction it should be done.

Secondly, some jurists have criticized his theory by saying that law protects the ‘will’ and not ‘purpose’s stated by Ihering.

But this criticism has not attracted much attention because many jurists including Korkunov believe that law seeks to protect ‘purpose ‘and not the ‘will ‘of the society. Ihering theory was mainly based on the Bentham principle of utilitarianism and he sought to reconcile competing social and individual interests.

CONCLUSION:-

        In the conclusion as per Ihering, law means those rules which secure the conditions of social life by state through coercion .Law always has a purpose .The purpose is to protect and further social interests. Ihering defines interests as to pursuit of avoidance of pain.

        The true position as per Ihering is that law is a process to achieve a proper balance between social and individual interests .Thus law has a purpose to promote social interest and as such there can be no law which does not owe its origin to a definite purpose .Ihering’s theory of purposive law inspired subsequent jurists, notably Roscoe pound to develop of his theory, social interest and social justice in subsequent years.

---

[1] Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, Central Law Agency, Allahabad, 8th edition2016,

[2] Dr.Sanjeev Kumar Tiwari,Jurisprudence legal theory and elements of law,Samudhvab,Kolkata,2012