appreciate the significance of the notion of justice as opposed to the notion of utility. Conscious purposiveness or finality (der Zweck im Recht) cannot explain the whole of social life, all the rules of morality and law.
In Part II the author presents his own views. He accepts the historical theory in its main features. The utilitarian doctrine is faulty in that it tries to deduce all individual and social acts from one single principle. It also fails to distinguish between the material and mental phases of existence. Law is the product of both material and mental conditions, of the entire physical and social environment, which latter becomes the predominant factor in the course of time. The object of law is to regulate the mutual relations of men by rules of conduct which are juridically obligatory. These relations are relations of coexistence and relations of cooperation, the former protecting and securing individual interests, the latter collective interests. These interests, which are both material and mental, are always determined by the external conditions of social life, and by the ideal which a community has of life, the social consciousness. The collective consciousness is not to be construed as an entity outside of the individuals; it is a name applied to the sum-total of ideal forces represented in individual consciousnesses. These forces are communicated to individuals by heredity and imitation, by instruction and culture, and by the practices of social life. It is not necessary that they be the property of all, it suffices that they are entertained by the élites.
The idea of evolution is the leading thought of the historical school. Two aspects may be distinguished in it: the continuity and solidarity of successive social states (the conservative aspect); and the progressive development of these states (the progressive aspect, which the founders of the school have neglected). Tanon criticises the evolutional school which bases everything upon the struggle for existence, and which is the laissez-faire doctrine over again. Struggle is not the sole factor of progress, not even in the animal world; the principle of association, the solidarity of living beings, enters into the process. Struggle is not the natural law of human progress; it is conditioned and dominated in humanity by an artificial environment which is the work, not of nature, but of man, and which exercises the deciding influence. The most general index of human progress is the increasing heterogeneity and complexity of individual and social life (division of labor), and the passage from forced coöperation to voluntary coöperation. Juridical rules are originally based, not upon the intrinsic value of their contents, but upon political and religious authority (forced coöperation). Gradually they find their support in the feeling of solidarity, but are still enforced by law (free and legal coöperation). The highest form of coöperation is that which springs from the individual wills and is maintained without legal coercion (free and voluntary coöperation). This is an association of persons, not of capital, and tends not to the enrichment of its members, but to the organization and regulation of economic life in general.
