论罗马家庭法的弱伦理性及其意义

亨利·梅因试图以他的精辟论断概括古代法的发展历程,事实上他的学说仍显笼统。所谓“身份”并不能严格限定罗马法下家庭成员之间的权利义务关系,恰恰相反,罗马法下的家庭在人身关系上存在着偏向性,而在财产关系上又颇有个体主义倾向。在家庭中,经济因素在一定程度上将影响人身关系,因此罗马法具有弱伦理性的特点。正是弱伦理性的罗马法使得欧洲的古代法在早期就能走上纯粹规则主义的道路。这也反映出欧洲古代法的发展是以社会基本单位——家庭——伦理关系的淡化为起点的,而法律仅在最基本需求的层面服从道德的命令。 

On the Weak Ethics and Its Meaning of Roman Family Law

Henry Maine tried to generalize the development of ancient law by his penetrating theory which is actually also a little general. The term “status” can not strictly define the relationship of rights and obligations among the family members under the Roman law. To the opposite, there is a partiality in the personal relationship of the family under the Roman law, while there is a tendency of individualism in the property relationship. In a family, the economic factors can influence personal relationship to a certain extent. So the Roman law has the characteristics of weak ethics. It is the Roman law with weak ethics that makes the European ancient law develop along the way of pure regularity in the early times. It also reflects that European ancient law developed on the threshold of attaching little importance to ethic of the social essential unit(the family), while the law obeys the orders of morale only at the level of the most essential need.