Ihering's Theory of Purpose: Zweck im Recht
Exam Snapshot
Rudolf von Ihering's Theory of Purpose (Zweck im Recht) is a cornerstone of sociological jurisprudence. He argued that purpose is the creator of law. Focus on law as a tool for social engineering and contrast this with Savigny's Historical School.
Core Concept
Ihering rejected the idea that law evolves unconsciously (as in Savigny's Volksgeist). Instead, he viewed law as a conscious, willed instrument created by the State to secure social interests. Law balances individual egoism and collective welfare through two levers:
- Reward: Positive reinforcement.
- Coercion: Negative reinforcement/sanction.
Nepal Law Anchors
Ihering's principles are reflected in modern Nepali legal frameworks that aim for social welfare.
- Constitution of Nepal: Preamble objectives like justice, social harmony, and prosperity reflect a purposeful legal system.
- Muluki Civil Code, 2074: Provisions on family and property law are designed to maintain social order and resolve disputes for specific social purposes.
- Muluki Criminal Code, 2074: Criminalizes acts detrimental to society, using coercion (punishment) to deter crime and maintain order.
Confusable Terms
| Concept | Ihering's Theory of Purpose | Savigny's Historical School |
|---|---|---|
| Nature | Conscious tool for social purpose | Unconscious growth of people's spirit |
| Source | Purpose (Zweck) | Volksgeist (National spirit) |
| State Role | Active creator of law | Codifier of existing custom |
MCQ Traps
- Volksgeist: Attributing "unconscious growth" or "Volksgeist" to Ihering. (That is Savigny).
- Rejection of Purpose: Assuming Ihering rejected the concept of purpose. (He centered his theory on it).
- Normativity: Confusing Ihering's focus on purpose with Kelsen's focus on normativity.
Example
The Contract Act, 2056 facilitates fair transactions and enforces promises. This serves the social purpose of trust and economic stability. By enforcing contracts, the State balances individual freedom to contract with the collective need for reliable trade.
Memory Hook
Think of Ihering as an "Engineer" of Law. Just as an engineer designs a bridge with a purpose (to cross), the State designs laws with a purpose (to achieve social goals).
Quick Revision
- Core Idea: Law is a means to a social end (Zweck).
- Rejects: Savigny's Volksgeist (unconscious growth).
- Emphasizes: Law as a conscious, willed tool.
- Mechanism: Reward and coercion to balance interests.
- School: Sociological Jurisprudence.