키케로 『법률론』의 법론과 법개념

Marcus Tullius Cicero (106-43 B.C.), one of the most influential statesmen of his age, tries to formulate the concept of law in his works, “On Laws” and “On Republic”. It is generally accepted that his viewpoint on law is intensely influenced by the ethics of the Stoics. This ethics originated from Greece inspired intensely the most renowned legal philosopher of Rome in that he could explain the world and, at the same time, law in the world only through the doctrine laden with strictly rationalistic Stoic ideas. But only partially. For other elements of his theory on law were brought about mostly by the consideration of the real circumstances of the late republic. In his work “On Laws”, however, he sticks to the theory of natural law of the Stoics. In his theory of law he terms the intended connotation of natural law lex, not ius. In this context this paper traces the origin of the concept of Roman ius (equivalent of today’s law in general or justice) and that of lex (equivalent of today’s written law or statute), and confirms the historical fact the word ius was primarily used for refering the entitlement of the individual inhabitants of the early Rome to hold their lands. To the contrary, lex was a satute passed in people’s assembly. To formulate his idea on natural law, it was not adequate to apply the word which meant originally the entitlement on properties. Instead lex summa (natural law) has similarities with the statute (lex) in that both are the agreement of the ruler and the ruled and the ruler ought to abide by the decisions once agreed.