Roman Law And The Ethical Basis Of Modern Civil Law

This article is aiming to disclose the ethical nature of civil lawful value, and to build up the internal system of civil law on the basis of uniform ethics, from the viewpoint of ethics and judicial methods through thorough analysis to two major representative legal systems—Roman law and modern-age civil law. Furthermore, on the judicial methods, this article using the traditional Roman lawful multi-polarity method, timely draws new social justice belief, answers the changed social ethical inquiries, mollifies the conservativeness and inflexibility of written law, so that the law could accomplish more changes with inherit of tradition, and realize a gradual development. This article is of this opinion, that from such a more inclusive and opening viewpoint, we could supply a new thinking path for the completeness and systematology of civil lawful internal ethical system, for striding over the dilemma between private ruling and governance, individual core and social core, and simultaneously taking the stability and flexibility into consideration.In the first chapter, this article is to make clear that from historical viewpoint, the law developed in a stage-style and cherished different ideal purposes, which need respectively corresponding external forms to response. The external forms of law and its historical fates are not always harmonious. There is a contrary theory in the development: conservativeness and progress, stability and reforms. The two contrary developments are both dangerous and of destructive power. The prevailing positivism of Roman-law system of modern age can not coordinate the relationship between stability and reforms, although it fits well with self-governing theory. Private governing is not the only and supreme guideline. The civil law must draw some important moral requirement into its own system. Therefore, the internal moral system of civil law is opened, and its concept rules and external forms are not logically self satisfied. The law is an art of compromise.In the second chapter, the philosophical foundation of codification movement of Roman law system is analyzed and pointed out, that in the modern age European continental countries, the jurists believing rationalism of Rene Descartes hold that there is a certain permanent guideline system, and from this system and pure logic calculation, a broadly inclusive and perfect legal system could be deduced. It is right this belief which pushed codification movement.