The Roman world epoch contains a major advance in the legal-political consciousness: both the idea of ​​the purely legal order which, while determined by moral ideas, cannot be skewed by moral motives in individual cases, and the idea of ​​entitlement (law in the subjective sense) which here is not thought of as in our time, as a notion of human rights (either in the true or the false sense of the word), but manifests itself merely as a notion of the acquired right of the person, of a right warranted by the legal order. But nevertheless, the Roman world epoch contains no progress in the awareness of the deeper reasons and ideas of law, no progress in the philosophy of law. Herein, the Romans merely appropriated the products of Greek culture. Cicero, the main writer in this field, borrowed all his terms and principles from Plato and Aristotle, without any significant new thoughts. He does not even bring to scientific acknowledgement that which lived in the national consciousness – subjective entitlement – and is not even aware of its opposition to the Greeks. The studies in his jurisprudential and political writings[1] revolve broadly around two issues: the existence of a natural moral law and the best state constitution. He asserts the existence of a natural law (lex aeterna), as was already done by the Greeks, especially with respect to the denial of Carneades; But he likewise stops short at the general notion that ethics [die Sitte] is true, independent, not a product of prudence at all, and does not go further, occupying himself with the existence of a natural law [Rechtsgesetzes], which was so close to the Romans. His investigations into the Roman constitution rest on the basis of Greek political science, with the difference that Cicero, in accordance with patriotic sentiment, comes to the conclusion that the mixed constitution, which he holds the Roman to be, is declared the most perfect. Even Stoic ethics received more a peculiar strength of operation than a peculiar scientific version from the Romans, and it more concerns the aspect of morality than the order of the social condition, the jurisprudential or political problems. One can only emphasize in it the element of common humanity, which spread in the mind especially later (e.g., Seneca, Marcus Aurelius); but this did not become form-giving for legal and governmental institutions, neither in life, nor in their own teaching.

Much more important for the world-historical progress of legal ideas than the philosophical and political writers among the Romans, therefore, were their legal arrangements themselves, and in part their conceptualization by practical [positive] jurists. This has been dealt with in detail in other places of this work, particularly in the appendix to the volume on private law. Therefore we may here proceed directly to the following period, which really does provide new scientific ideas, the legal philosophy of the Middle Ages.

Previous Next


[1] In particular, Cicero’s de republica and de legibus.