Chapter 5 Chapter 1 Legal Theory of Ancient Greece and Rome

All nations and countries in the world have formed certain concepts and ideas about the nature of justice and law in the early stages of their historical development, although the specific content and expression methods of these concepts and ideas may be different.The reason why we examine the evolution of legal philosophy from the legal theory of the Greeks rather than some other nation is entirely because the ancient Greek sages had extraordinary philosophical insights into natural and social phenomena.The Greeks became the philosophical teachers of the Western world through thorough and basic analysis of nature, society and social systems. At the same time, Greek philosophy has also become a microscope for people to examine the philosophy of the entire world.Some of the hypotheses and conclusions put forward by Greek thinkers have not stood the test of time due to later experience and discoveries, but the way these thinkers raised and discussed the basic problems of life in philosophical terms and the various possible approaches to solving these problems method, but it can be said to be long-lasting and effective.In this sense, Friedrich Nietzsche's assertion on this is still true today, "When we speak of the Greeks, we are in fact involuntarily speaking of the present and the past".

We learn about the legal thought of the ancient Greeks through the epics of Homer and the poems of Hesiod.At that time, the law was considered to be promulgated by God, and man learned the law through the revelation of God's will.Hesiod pointed out that the reason why wild animals, fish, and birds kill each other is because they don't know the law; but Zeus, the head of the gods on Mount Olympus, gave the law as his greatest gift to mankind.Hesiod thus contrasts the nomos (ordering principles or laws) of the irrational nature with the rules of the rational (at least potentially rational) world of man.Of course, he was unaware of the skepticism of the Sophists in the future, because these Sophists tried to deduce a right of the weak to the strong from the fact that the big fish eat the small fish in nature.Hesiod believes that law is a peaceful order based on fairness, which forces people to refrain from violence and submits disputes to arbitrators.

In the early stages of ancient Greece, law and religion were largely united.In matters of law and legislation, the canon of Delphi is often invoked—his dictum considered an authoritative statement of divine providence.Religious ceremonies permeate the forms of legislation and justice, and priests also play a vital role in justice.As the supreme judge, the king's duties and powers are also considered to be bestowed by Zeus himself. The Greeks once regarded funerals as the orders of the divine law, and those who violated them would be cursed and punished by the gods.A famous scene in Sophocles' tragedy Antigone vividly describes the irreconcilable conflict between this religious duty and the orders of a secular ruler. .King Creon forbids the funeral of Polyneiks, Antigone's brother, because he violated the laws of the country.Antigone knew that her actions would put her in danger of death, but she bravely challenged this decree and buried her brother according to the ritual prescribed by Greek religion.When King Cleos asks her to explain why, she argues that in burying her brother she is breaking only the laws of Cleos, not the unwritten ones:

They belong neither today nor yesterday Eternally existing: (no one can be sure when they came into existence) i'm not afraid to piss anyone off (Also defying the vengeance of the gods) To defend them. In this famous play we find the earliest historical formulation of a problem that has preoccupied legal thinkers of all ages, namely, the problem of conflict between two legal orders; Express exclusive allegiance to them. In the 5th century BC, a profound change took place in Greek philosophy and thought: philosophy began to be separated from religion, and the ancient, traditional way of life in Greece was thoroughly criticized.Laws have gradually ceased to be regarded as immutable and immutable divine ordinances, but as a wholly artificial creation, made for expediency and convenience, and subject to change at the will of man.Likewise, the metaphysical character of the concept of justice has been rejected and people have begun to analyze it in terms of their psychological characteristics or social interests.

The thinkers who implement and promote this "value transformation" are called Sophists (a translation of wise men - translators), and can be regarded as the earliest representatives of philosophical relativity and skepticism.For example, Protagoras, one of the leading figures of the early Sophists, denied that man had any knowledge of the existence of the gods, and also declared that man as an individual was the measure of all things. For him, "being" is nothing more than a subjectively rendered "appearance".He also argues that there are at least two views on every question, and that it is the function of sophistry to argue a weak argument for a strong one.

The sophist Antiphon drew a sharp distinction between nature (physis) and law (nomos).He declared that the order of nature is inevitable and irresistible, while the order of law is arbitrarily formulated by human beings, which is the kind of accidental and artificial arrangement that changes with time, person and situation.He believed that anyone who violated the laws of nature must be punished.However, if a person violates the laws of the country without being caught, then he will not be punished or lose his reputation.Implicit in this argument is the assumption that a human convention is really just a fetter on a natural "right."

Starting from a premise similar to the above, the sophist Callicles also declared the "right of the strong" to be a "natural" law as opposed to "conventional" law. Fundamental.He believed that the essence of animal life and human life is based on the innate superiority of the strong over the weak; most.The law tries to make men equal, but men are fundamentally unequal.Therefore, if the strong man defies popular agreement and frees himself from unnatural legal constraints, he is actually acting according to the laws of nature. Likewise, Thrasymachus preached "might makes right".While he may not have shared Callicles' love of the self-sufficient Superman, he was convinced that laws are made by people and groups in power to advance their own interests.Plato, in a famous passage in his book The Republic, is convinced that Slushmeg gave the following definition of justice, "Justice, I affirm, is nothing but that which favors the strong." Therefore, the just The man who obeys the laws which serve the interests of the ruling group, the unjust is the man who ignores such laws.According to Slushmeg, the just are often worse off than the unjust, since subjects who obey the ruler's orders are in fact promoting the interests of others at their own detriment; therefore, if one can Bypassing the law, then his actions for injustice are worth it. "If injustice is great enough, it will be more powerful, freer, and higher than justice."

In Plato's The Republic, Socrates, when discussing the meaning of justice with Slushermeg, was able to convince his audience that Slushermaggot had "inverted" the definition of justice.This is indeed the cautious evaluation of Socrates and his favorite student Plato (429-348 BC) on most Sophist doctrines: Sophists "inverted" the meaning of truth, and their skepticism and agnosticism had great influence on the meaning of truth. The social welfare and harmony of the republic posed a threat.Socrates set himself the task of overcoming the subjectivism and relativism of the Sophists and establishing a substantive ethical system based on that objectively proven theory of value.But Socrates developed his ideas only in oral debates with his fellow Athenians.As far as we know, he never put his teachings into written form.Therefore, we now only know about Plato's philosophical thoughts from his dialogues.Plato basically agrees with Socrates, so he regards Socrates as the spokesman for clarifying his own philosophy.

As far as Plato's philosophy is concerned, we must draw a clear distinction between his theory of justice and his conception of law.Plato's theory of justice is detailed and clear, and constitutes the cornerstone of his entire philosophical system, and most of the views in it are consistent; Substantial changes took place in the second half of life. In Plato's view, justice means "a man should do the work which his ability puts him in the position of life".He believed that every member of society had specific duties and should confine his activities to the proper performance of these duties.Some have the power to command, that is, to rule; others are capable of assisting those in power in their ends, and are subordinate members of the government; still others are fit to be merchants, artisans, or soldiers.

Plato believed that all men are born unequal.He saw this inequality as a justification for establishing a hierarchy in his republic.He declared: Ru Cao is in a country.Produced from the ground with each other.fellow man.However, it is God who created Ru Cao in the earth.But the way God made Rucao is different. Those who want to rule in the world and have noble honors should be made of gold; those who are assistant ministers should be made of silver; quality.And this kind of class, the boundaries must not be disturbed.Although it has been passed down to later generations for many years.However, if gold and silver are similar in nature, they can sometimes be reconciled.The parents of the gold system occasionally have the children of the silver system, or the parents of the silver system have the children of the gold system.There is nothing impossible about solid balance.There is only one rule, which is affirmed by God, and which must be absolutely obeyed by man, that is, man must always pay attention to the integrity of the blood and blood of his descendants.If there is a man of gold or silver, and there is copper and iron mixed in, he will be lowered and killed.His descendants are artisans and farmers, and are no longer loved by others.If there are people in the bronze and iron ranks, and there are descendants of the gold and silver ranks, they will be promoted to rule or assist the rule.And the reason why there must be such regulations is that God has told people that the country will inevitably perish under the rule of people at the first level of bronze and iron.

In Plato's Utopia, the golden people should be the rulers, and they must be philosophers (because Plato believes that if the rulership is not combined with philosophy, it is impossible to eliminate evil in the country).The ruler will be granted absolute power, which has enabled him to exercise it rationally and selflessly for the benefit of the country.Men of silver should become soldiers, defending the country and assisting the ruler in fulfilling his duties of ruling.Men of copper and iron will make up the productive class.In order to be able to devote themselves to public duties, the first two estates must renounce family life and private property; all unions of man and woman in these two estates should be temporary, and should be performed by the state according to the eugenic purpose—the reproduction of the best race— - and adjusted; members of the third and most numerous class, however, could found families and own private property under strict government supervision. Each class, says Plato, must strictly confine its activities to the proper performance of the specific duties of that class.In his republic a sharply defined division of labor among the three estates must have been established.Every citizen must fulfill his duties with respect to the tasks assigned to him by the government according to his special abilities and qualifications.Rulers, supporters, farmers and craftsmen must stick to their vocation and not interfere with anyone else's affairs. "Everyone keeps his duty and performs his duties, that is justice." Plato recognized that even in his utopia disputes would arise and that these disputes would have to be decided by government authorities.In The Republic he advanced the theory that the country's judges should have a great deal of discretion in deciding such disputes.Plato did not want them to be bound by fixed and inflexible rules laid down in a code. The state in The Republic is an administrative state, governed by the free wisdom of the best men, not by the rule of law.The administration of justice should be "unlawful." In his dialogues in The Statesman (The Statesman), Plato explained his reasons for not paying much attention to the law.He pointed out in the book, "It is impossible for the law to issue an order that both binds all and is really best for everyone. It is impossible for the law to give to each member of society at any time what is called goodness. 2. What is a legitimate regulation. The differences in human personality, the diversity of human activities, and the endless changes in human affairs make it impossible for people to formulate rules that are absolutely applicable to various problems at any time no matter what technology they have. "Plato believed that the principles of law consisted of abstract and simplistic ideas.However, simple principles cannot be used in any case to solve complex and complicated business situations.Therefore, "the best way is not to give the highest authority to the law, but to give the highest authority to those who understand the art of governance and have great wisdom." Perhaps as a result of his failed attempt to establish a Platonic utopia at Syracuse in Sicily, Plato, in the last decade of his life, began to question the free and unfettered Schemas of state governance are compared with forms of state in which the discretion of the rulers is limited by law.While he still insists that a "non-law" state is the highest and most perfect form of government, he also acknowledges that such a state needs to be run effectively by the most intelligent and infallible Judgmental people take control.Since such people are hard to find, he proposes that a "law state" is a second-best option for human rule.Plato described in detail the blueprint for such a state in his last work, The Laws.This kind of national ruling authority no longer enjoys the power of arbitrary justice in the absence of written codes and legal provisions.They should be servants of the law, obliged to seek guidance from the general laws governing the conduct of citizens, regardless of the human factor. Aristotle (384-322 BC) was educated in philosophy in Plato's academy in Athens, so he was deeply influenced by Plato's thought; but his own philosophy deviated from him in many ways. teacher.Compared with his teacher, he respects the actual situation in the real society more, pays more attention to the defects of people and the system, and uses this to reconcile Platonic idealism and rationalism. Aristotle's realism made him realize that the country organized according to Plato's utopia must be smashed in front of the reefs of general human nature.As Plato himself realized after his bitter experience in the Sicilian adventure, "If one manages human affairs without responsibility, then there must be arrogance and injustice." To avoid repeating Plato's portrayal of "the most perfect ’ and a ‘suboptimal’ state blueprint, Aristotle posits a law-based state as the only viable means of achieving the ‘good life’.He believed that the attainment of the good life was the main goal of political organization.He also declared that "man is the best animal when he is perfect, but when he is divorced from law and justice he is the worst animal." Aristotle pointed out that laws made in a proper way should have ultimate and supreme authority.Except in cases where the law fails to make general provisions allowing the rule of man (i.e., the executive), the law should have the highest authority on every question.In general, Aristotle believed that "the rule of law is preferable to the rule of one man." To some extent, he agreed with Plato that if the state If there exists a man who is extremely eminent in both moral and political ability, then this eminent man should be the permanent ruler; but he insists that even this "godlike" man must also be a lawgiver, and Even in a country governed by such a person there must be a legal system. "The law should rule, which is like saying that gods and reason alone should rule; to let a man rule, is to mix an element of animalism into politics, because human desires have such characteristics. Enthusiasm also tends to lead those in positions of power to abuse their power, even though they are the best of the multitude. Law... may therefore be defined as 'reason unaffected by any emotion'." However, Aristotle was aware of the fact that, in judicial practice, situations may arise where the generality and rigidity of a rule of law may prevent a judge from applying that rule to the settlement of individual cases.Aristotle proposed to use the method of equity (eqieikeia) to solve such difficulties.He defined equitable principles as "a correction of the law when it is too principled to solve a particular problem." The law considers the majority of cases, that is, the typical and common situation, but the law cannot Special circumstances are not specified in detail; therefore, the law often fails to deal adequately with unique cases.When such a case arises, the judge can depart from the letter of the law and proceed as the legislator might have dealt with the issue if the legislator had foreseen the possibility of this unique situation. the case. Aristotle drew a distinction between distributive justice and corrective justice, but I intend to discuss this famous dichotomy elsewhere.Aristotle goes further to point out an important distinction between the natural part of justice and the part of justice that must be regarded as customary. "The natural rule of justice is equally valid everywhere, independently of our acceptance of it. It is immaterial that the customary rule of justice may at first be ascertained in one way or another, although once it has Once determined, it ceases to be insignificant. For example, a prisoner's ransom is a starling, the sacrifice is a goat instead of two sheep, etc." While Aristotle's meaning of the term "conventional justice" is fairly clear—the Rules of the Highway are a classic example in this regard—his concept of natural justice suffers from the aforementioned A statement following the quoted text is obscured.In this statement, Aristotle seems to admit the variability of natural law on the one hand, but at the same time admit the constancy of natural law.He even thinks that eternal justice is possible only among the gods; although there is something like natural justice in our human world, all such rules of justice are variable.The original meaning of Aristotle - although this text may have been transmitted to us in a distorted form - may be that what is considered "natural justice" in primitive societies may violate a high degree of justice. Universal conceptions of justice in developing civilized societies.As humanity progresses in mastering its incomprehensible forces of nature, in developing a stronger moral consciousness, and in attaining a greater mutual understanding, so too does the human sense of justice become more refined.Unlike the rules of customary justice, natural justice may prescribe certain forms of social behavior and intercourse for people, and these forms are also considered mandatory rather than accidental or morally insignificant.Aristotle may also have meant that human effort can to some extent affect the operation of natural law, and therefore, in this sense, natural law is mutable.He thus states, "The right hand is naturally stronger than the left, but it is possible for any one man to make the right hand equally strong." Attempts to elucidate his ideas have turned into a kind of hit-and-miss guesswork. Aristotle did not answer the question about the legal consequences of the conflict between the rules of natural justice and the positive law enacted by the state.He explicitly recognizes the possibility of "unjust" laws, such as a statute passed by the majority that distributes the property of the minority among the members of the majority.He also noted that other oppressive edicts—whether by the people, by tyrants, or by the rich—are also “vile and unjust.” As noted, Aristotle also taught Laws properly enacted (rather than laws themselves) should have final and supreme authority.But he does not express his opinion as to whether the judiciary must in all cases enforce diabolical laws or the people must obey them. The founder of the Stoic school of philosophy was the Semitic thinker Zeno (350-260 BC).Zeno and his followers put the concept of "nature" at the heart of their philosophy.The so-called nature, according to their understanding, is the ruling principle (ruling principle), which pervades the entire universe, and is regarded by them as gods in a pantheistic way.This governing principle has an essentially rational character.Zeno believed that the whole universe is composed of one substance, and this substance is reason.Therefore, in his view, natural law is the law of reason (law of reason).As a part of the nature of the universe, man is essentially a rational animal.In obeying the dictates of reason, man arranges his life according to laws consistent with his own nature.The Stoics taught that man should live free from emotions and subjective passions, and should make himself independent of the external world, free from the domination of worldly things, and rule his instincts in a rational way.One should be fearless, be content with the inevitable fate, and strive hard to achieve complete spiritual balance and harmony. The Stoics believed that reason, as a universal force pervading the universe, was the basis of law and justice.They believe that divine reason resides in all human beings, regardless of nationality or race.Thus, there is a common law of nature based on reason, which is generally valid throughout the universe.Its requirements are binding on anyone anywhere in the world.The Stoic philosophers also taught that the human world should not have different city-states because of different systems of justice.They created a cosmopolitan philosophy based on the principle of equality of all men and the universality of natural law.Their ultimate ideal is to establish a world-state in which all people live in harmony under the guidance of divine reason. Cicero (106-43 BC) was a great Roman jurist and statesman.He was heavily influenced by the views of the Stoics.Like the Stoics, he was inclined to equate nature with reason, and to conceive of reason as the dominant force in the universe. True law is a just reason consistent with nature; it is of universal applicability and is immutable and eternal.By way of commands, this law calls men to perform their duties; by its prohibitions, it keeps men from doing wrong.Its orders and prohibitions have always affected good people, though not bad ones.It is an evil to try to change this law, it is impermissible to try to abolish a part of it, and it is impossible to abolish it altogether.  …The laws of Rome are not different from the laws of Athens, and the laws of today are not different from the laws of tomorrow, because there is only one eternal law, which must be obeyed by any people at any time; , human beings have only one common master and ruler, and this is God, because it is the maker, issuer and executive judge of this law. When Cicero endowed the law with "natural force", he clearly stated that the rationality and thoughts of wise men should be the standard for measuring justice and injustice.It is characteristic of the rational man to give everyone his due according to reason, and Cicero equates this attitude with justice.He points out that this attitude may at first be confined to family, relatives, and friends; but as civilization expands, it must extend to fellow men and political allies, and eventually to all mankind.Cicero argued that while a sense of justice can be developed and improved, it is a universal quality shared by all rational beings. "Because men have a common intelligence, which makes many things known and clarified in their hearts, people regard righteous actions as good and dishonest actions as evil; only a madman can come to the conclusion that these judgments are a matter of opinion rather than nature a priori." Justice is thus inherent in nature (understood as human nature) and, as a necessary condition of the collective happiness of human beings, justice It must not be separated from the utility (and this separation is what some Sophists are trying to achieve). Cicero believed that "the most stupid idea" is to believe that everything in the laws or customs of a country is just.He asked: Are the laws made by tyrants just?Can a law be considered just which states that a tyrant may (even without a trial) execute at will any citizen he wishes?Can theft, adultery, forged wills be sanctioned by the decree of the ruler or the law passed by the legislature?According to Cicero, the answer is self-evident.He emphasized that "pernicious" regulations enforced by the state are, of course, unworthy of being called laws, since such regulations are no different from the rules that a gang of bandits might make within their own group.Cicero thus seems to subscribe to the view that laws that are wholly unjust have no legal nature. In the classical period of Roman law (from the 1st century BC to the middle of the 3rd century AD), many famous jurists were similarly influenced by Stoic philosophy.However, the work of these scholars was largely a practical one, so they had little opportunity for abstract theoretical discussions of questions about the nature of law and justice.Although legal textbooks in the classical period of Roman law are full of discussions on natural law (Jus naturale), natural reason (naturalis ratio) and natural reason (natura rerum), the "natural law" explained in these books is usually not Western law. The kind of universal and eternal law that Cerro discusses reflects rather a way of solving a case proposed by people that is consistent with the way Roman society expects people to behave or is consistent with a certain way of doing things. consistent with the justice inherent in a particular factual situation.As Ernst Levy puts it, "For them, 'nature' is not only what is produced by the physical properties of people or things, but that which, within the framework of (legal) institutions, seems to be compatible with a conforms to a normative and rational order of human interests, and is therefore one that needs no further proof." Sometimes, the concept of natural law used by ancient Roman jurists is somewhat closer to Cicero's definition of the term.For example, the ancient Roman jurist Gaius (Gaius) declared in his "Institutes" (Institutes), "Where countries rule by law and custom, they use partly their own laws, Laws common to the whole of mankind. Any law that any people makes for itself is law peculiar to that country; it is called civil law (jus civile), because it is peculiar to that country. Natural reason is in the whole of mankind. What is established, is observed equally for all mankind; it is called the law of peoples (jus gentium), because it is the law applicable to all nations". The civil law Gaius was talking about was a law that applied only to Roman citizens, while the gentes was a system of rules that applied in disputes involving non-Roman citizens.The law of peoples is made up of practices, rules, and principles that reflect common elements in the legal systems of the foreign nations with which Rome interacted.Whenever a custom or rule practiced by many other peoples was observed by the Romans, it was incorporated into the law of nations.Since it is a general or extremely general system of rules, Gaius considered it to be jus natural. However, another concept of natural law appeared in ancient Roman jurisprudence, but its significance is not particularly great.Ulpian, a Roman jurist in the 3rd century AD, believed that "natural law is the law common to all animals. This law is not unique to humans, but belongs to all animals living on land or in the sea , also belongs to the birds that fly in the air. Hence there arises the union of a man and a woman which we call marriage, and hence the problem of reproduction. In this regard, we may say that all animals, even beasts, know this kind of law".This kind of legal community composed of humans and animals is not only unheard of for Cicero and Stoic scholars, even modern scholars do not think this view is a representative view among classical jurists. An important element in the Stoic conception of natural law was the principle of equality.The Stoics were convinced that all human beings are essentially equal and that it is unjust and contrary to natural law to discriminate against people on the basis of gender, class, race or nationality.This Stoic idea of ​​the equality of all men earned a place in political philosophy and jurisprudence during the Roman Empire.Of course, the influence of Stoic philosophy was only one of many factors that contributed to some of the larger tendencies toward social equality that were prominent in the latter part of the Augustan dynasty.However, due to some great emperors of the time, such as Antoninus Pius and Marcus Aurelius, and some jurists, such as Papinian and Paul (Paul) and others were all greatly influenced by Stoicism, so we should not underestimate the causal connection between this philosophy and the humanism and egalitarianism of the Roman Empire.Various efforts have been made by commentators to bring positive law into conformity with the requirements of Stoic natural law, although these efforts have involved only certain specific measures and have not affected the subject of Roman law and its system.However, the dissemination of this new theory of equality had an impact on slavery, especially on the family system. Regarding slavery, we can find the Stoic idea of ​​equality for all in the definition of slavery in Justinian`s Corpus Juris Civilis.The jurist Florentinus taught during the reigns of Marcus Aurelius and Commodus.He defines slavery as follows, "Slavery is an institution of the law of peoples--an institution which is contrary to nature--for by it one man is compelled to become the property of another." This Crucial to the defining feature is the statement that slavery is "against nature."The premise upon which this definition is based is the existence of a natural law which asserts that all men are equal.Urpian expresses the same opinion in the following text, "As regards civil law, slaves are not regarded as persons; but according to natural law, the situation is different, because natural law regards all men as equal" .In the above narrative, the influence of Stoic thought is evident.Although this supposed principle of equality was never put into practice in the Roman Empire, it was probably part of the legal reforms through which the status of slaves gradually improved.罗马的斯多葛派哲学家萨尼卡（Seneca）以极大的勇气要求对奴隶制度做更加人道的调整；一些皇帝也采取了一些实际措施，并使奴隶的法律地位和社会地位得到了一定的改善。克劳迪尼斯（Clauduius）国王裁决道，因年迈或患病而得到释放的奴隶当可以成为自由人。哈德良（Hadrian）禁止奴隶主不经过地方法官的判决就处死其奴隶。他还禁止在没有事实证明被指控者有罪的情况下对奴隶刑讯逼供，禁止私人监禁奴隶。另外，他还制止了那种把男女奴隶出售给伙食供应者作角斗表演的做法。安东尼厄斯·皮厄斯国王规定，受奴隶主虐待的奴隶可以向地方法官提出控诉。他还强令残酷对待奴隶的奴隶主卖掉奴隶。当然，实行这些保护性的措施在某种意义上讲也有经济上的考虑。奥古斯都（Augustus）平定罗马帝国以后，奴隶的人数开始减少，保护残剩奴隶劳动力便成为一种必要。但是，人道主义思想对上述方面的发展，也产生了非常重大的影响。 在一定程度上源于斯多葛派关于自然法和平等观念的那种人道主义思想的发展，也同样可以见之于罗马家庭法律制度的发展之中。首先，它影响了罗马家庭妇女的法律地位，并有助于这些妇女从丈夫的独裁权力的支配中慢慢地解放出来。在早期的罗马法中，正式的婚姻都伴附有夫权；根据这种婚姻形式，妻子必须服从丈夫专制的统治。他操握着她的生杀大权，可以卖掉她或贬她为奴隶。妻子不能拥有任何独立的财产，没有权利同丈夫离婚，而丈夫却有权同妻子离婚。除了这种严格的正式的婚姻形式以外，当时还存在一种自由的婚姻形式，根据这种自由的婚姻形式，妻子可以保持其人身和财产的独立。但在罗马共和国早期，夫权婚姻（the marrige with manus）乃是婚姻生活的一种习惯形式。这种情形以及已婚妇女的法律地位和社会地位，却在罗马共和国晚期和皇帝们的统治时期发生了变化。夫权婚姻越来越被自由婚姻所代替。在罗马共和国的最后一百年中，自由婚姻已经占据了主要地位，虽然夫权婚姻还有残存，但已成了一种例外。奥古斯都所颁布的《关于通奸的法律》（Iex Julia de adulteriis）取消了夫权婚姻中丈夫对妻子的生杀权。到了查士丁尼（Justinian，公元483～565年）时代，夫权婚姻已完全消亡，而且法律也不再承认这种婚姻形式。在帝国时期，罗马的已婚妇女实际上已独立于其丈夫，而丈夫也很少能够或已完全不能控制其妻子的行为了。妻子可以自由地、很容易地同丈夫离婚。从某些方面看，当时的妇女甚至要比当下大多数文明国家法律下的妇女获得了更大的解放。 其次，父母与子女之间的法律关系也同样采取了较为人道的形式，尽管此一发展过程是渐进的和非常缓慢的。罗马家庭中的一家之父对子女的人身和财产的专制控制从来没有被彻底取消过，但是通过一系列具体的法律措施，这种状况逐渐得到了缓和。卡拉卡拉（Caracalla）规定，除了在极为贫困的境况下，否则不得出卖孩子。哈德良规定，如果一家之父滥用权利而杀死自己子女，就必须受到惩罚。安东尼厄斯·皮厄斯和马库斯·奥里利厄斯国王则取消了父亲强迫自己成年的子女与其自由结婚的配偶离婚的权利。帝国后期甚至还规定了父亲在抚养子女方面的义务。父亲处置其成年儿子财产的绝对权力，也逐渐受到了限制。在奥古斯都统治时期，处于父权之下的士兵已有权独立地使用其在服役期间获得的财产（军功特有产）。经过一段时间以后，一家之父的处置权又受到了一些限制。 值得人们注意的是，我们绝不是说在上述整个发展的过程中斯多葛派自然法观念的影响是首要的因素。众所周知，历史上的每一发展都是由许多同时发生、相互影响的因素决定的，而且要衡量其中某个具体因素所起的作用，往往也是很困难的。因此，我们只能说，在罗马共和国晚期和帝国时期，政治和法律生活中的许多领袖人物都受到过斯多葛派哲学的影响，以及这种人道主义哲学很可能在罗马这一历史时期的社会和法律改革中发挥了某种作用。我们也必须认识到，在那些可以解释斯多葛派哲学为什 么会降落在罗马这块沃土上的社会学因素中，有一种因素颇为重要，即朝世界帝国发展的趋势，这种趋势在罗马共和国晚期趋势明显，并且导致了罗马帝国的诞生。斯多葛派在自然理性基础上所提出的只有一种共通的公民资格和一种共通的法律的世界国家的那种观念，在上述发展趋势中获得了一种极为真实且非乌托邦式的意义。由于公元212年大多数罗马行省的国民都获得了公民权，所以建立一个文明人类（civitas maxima）的共同体的思想——同早些时候小城邦的狭隘观念相对立——也几近完全实现了。正是在这种情势下，并在基督教思想日益兴起和广为传播的支援下，斯多葛派的哲学思想自然而然地对罗马帝国的政治发展和法律发展产生了重大的影响。