The true function of law is to recognize and determine the relations of life in which the material interests find their surest satisfaction, and to guarantee their peaceful and regular realization by the obligatory force attached to it. This obligation must be provided with two sanctions: constraint and moral assent. The moral assent is in primitive times largely religious; in more advanced times it attaches itself to the contents of law, to the interests whose protection it guarantees.
This little book deserves commendation in many respects. The historical part is clearly presented, and furnishes an excellent introduction to the subject. The views of the most important authorities are given in brief, but intelligible form, and the development of the historical school is traced in a logical manner. The author's own criticisms are usually sound and sensible, and betray maturity of thought. In one point, however, he does not seem to me to do full justice to Jhering's theory. Jhering does not regard conscious purposiveness as the fundamental principle of his system, as Tanon erroneously declares. The Austrian jurist clearly distinguishes between the subjective and objective end, and expressly states that whatever may be the individual's motives, the objective end or purpose of morality is the social welfare. (Der Zweck im Recht, Vol. II, pp. 97 ff, 134ff.)
The constructive part of the work shows the same general clearheadedness, the same soundness of judgment, as the preceding portion. I have no fault to find with the author's views nor with his criticisms, but he does seem to me sometimes to err in ascribing opinions to certain schools which they do not hold. Thus his criticism of the utilitarian theory is founded upon a misunderstanding of the fundamental principles of that much-abused system. The utilitarian theory is not necessarily egoistic, nor does it fail to give proper weight to the mental factor. Utilitarianism, in the broad sense of the term, is the view which sees in the effects of acts, in the end which they tend to realize, the criterion of their moral worth. In the narrow sense of the term, as used by Mill, it is the theory which makes the greatest happiness of the greatest number the end and criterion of morality. Materialism and egoism are not essential phases of the system, as Tanon seems to think. Tanon also uses the term 'struggle for existence' in too narrow a sense. His objections to this principle are perfectly sound if we interpret it in the sense in which he interprets it. But struggle for existence does not necessarily mean struggle for mere physical existence; life does not consist in mere eating and drinking, but in the exercise of both physical and mental, individual and social functions. However, these are merely questions of terminology, after all, and those who are in sympathy with the historical way of looking at things, will agree with the main propositions of the author.
Frank Thilly.
