schränken darf.”270 However, the scientificism and formalism of the fundamental idea and basic design of his theory results in apprehensions that jurists applying it would run the risk of confusing the issues, mistaking the apodictic certainty and systematic validity of jurisprudential constructions for actual legal, practical validity.271 In direct opposition to the doctrine of the Historical School of jurisprudence, Jhering argued that the doctrines of jurisprudence, due to their inherent logical necessity and subsequent scientific validity, gained a direct status of law rather than by reference to the direct practical utility and applicability of jurisprudential doctrine.272According to this view, the findings of jurisprudence are lawby virtue of their actual construction, rather than by their practical applicability or through the existence of an actual need for a certain legal solution to existing problems of law and society.273 Jhering’s overemphasis on scientific consistency as being a necessary criterion for legal validity need not inevitably pose a problem. But since such an overemphasis tends to blur the distinction between those doctrines of jurisprudence that have only potential legal validity with those that have actual legal validity, as well as obscure the difference between those doctrines that fill no practical needs with those that do, his ideas might well pose a problem for any jurist applying doctrine as a source of law.274 For where is the line to be drawn between the so-called lex lata, which bind jurists, and the lex ferenda, which only inform them, if the difference between actuality and potentiality is abolished? To Jhering, the uncertain practical validity of jurisprudential doctrine constitutes a minor problem, as the motives for the legal scholar’s work is intellectual curiosity rather a ca l l f o r s c i e n t i f i c p u r i t y 629 270 Ibid.: p. 18. 271 E.g., Heck,“Die Begriffsjurisprudenz,” pp. 191-200; Fuchs, Die Gemeinschädlichkeit der konstruktiven Jurisprudenz, pp. 255-265. 272 Cf. Heck, “Die Begriffsjurisprudenz,” pp. 191-192. 273 Jhering, Geist 2:II, pp. 409-414. 274 Lundstedt, Rätten och samhället, p. 67; Heck,“Die Begriffsjurisprudenz,” pp. 191-200; Ekelöf, “Ett stycke vetenskapshistoria,” p. 86.
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