Individualistic and collectivistic law systems
Historians tend to assume a process of increasing individualism through history, while economists presuppose the autonomous individual throughout time. Sax draws a somewhat different picture.
History deploys a general process of the increase of individualism as well as collectivism, but more important is a sequence of cycles in which once individualistic and then collectivistic structures prevail. This picture of long-term cycles resembles Pitirim A. Sorokin's model (1937, 1953). Law is part of the framework that shapes the periods in question.Individuals start living in tribes. The hardship of their fight against nature and against other groups demands that they join closely to secure food and defence. With increasing civilization, the need for collective strictness decreases. People gain increasing knowledge about how to use nature, states are consolidated and fighting becomes rarer. They have the chance of more individualism which is also promoted by property and the division of labour. Some peoples curb this process, for instance by developing caste systems; but there is a general tendency towards more individualism which eventually deploys egoism and degeneration. The sudden change comes with Christianity proclaiming general altruism, and youthful peoples contribute their more collectively oriented law systems. (Collectivistic) Germanic law replaces (individualistic) Roman law. Stronger ties lead into the Middle Ages, and people are strictly placed into collectivities again. But tendencies towards individualism start moving again, and they become mighty in the age of the Renaissance and Reformation. This is also the age of discoveries and innovations, of a rising monetary economy, and finally the age of traffic and technique. Again the individualistic Roman law is used, and the rule of law with its guarantees of liberties becomes anchored in constitutions. Thus the period culminating in the nineteenth century is an individualistic epoch.
But Sax observes that, again, as time passes, collectivizing elements start gaining strength. Probably once more a more collectivist age is dawning.There has been a long discussion about the nature and the genesis of the state. Sax criticizes individualistic theories which are trying to dissolve the peculiarity of the state, but he is equally critical of idealistic theories which shroud the state (as the realization of moral aims) in beautiful words or organistic theories which metaphorically equal the state to human bodies. Sax is also dissatisfied with realistic models, like the theory of Ludwig Gumplowics, which links the existence of states to occupation and the exploitation of groups (Sax, 1884, pp. 28ff.; 1887, pp. 106ff.). The economic theories of the state - exchange theory, consumption theory, productivity theory, capitalistic theory - are not convincing. Sax acknowledges merits of the new production theory, offered by Adolph Wagner, and the reproductivity theory, offered by Lorenz von Stein, but he again finds some flaws in them.
States are organizations for balancing individualistic and collectivistic impulses, attitudes and functions, and it is necessary to analyse the economic and legal background. There is one general historical tendency: the centralization of collective functions, ‘a concentration of purposes from smaller to larger associations’ (Sax, 1887, p. 424). The law of the expansion of collective functions which Sax borrows from Wagner shifts collective purposes from local to central authorities, from kinship, neighbourhood and community to region and, further, to the centralized state (ibid., p. 69). However, most economic considerations about collective institutions remain valid for all kinds of associations.