This week, we’re taking another trip through an ancient author, in this case looking at a passage from Cicero’s De legibus (“On the Laws”) and discussing Cicero’s vision of the origin of laws and how those ideas have found their way into current thinking.
Cicero was a remarkably prolific author, and a tremendous amount of his work survives, in whole or in part: 52 speeches (a mix of legal and political speeches), 6 works on oratory (of which the De Oratore is the most notable), about a dozen works of philosophy and politics (including today’s De legibus), as well as 37 books of private correspondence (generally divided into four groups, letters to Atticus, to Brutus, to friends, and to his brother Quintus). Given the tremendously wide range of material, it should go without saying that we’re not going to cover anything like all of it, or even the general character of all of it.
Rather, I want to focus on one very particular idea Cicero had, in one particular work: his theory of natural law in his political treatise De legibus.
The Author: Marcus Tullius Cicero was one of the most gifted and successful politicians of his day. Unlike nearly all of his peers in the Roman Senate, his family had not been in Roman politics for generations on generations, but rather was new to it. Cicero’s family was a wealthy one, but hailed from the town of Arpinum, about 60 miles from Rome, making Cicero an outsider to elite Roman politics. He made his name as a legal advocate, rather than (in more typical Roman fashion) as a military man. He was the first of his family to enter the Roman Senate (making him a novus homo or ‘new man’) and was the first such new man to rise all the way to the consulship (the highest Roman office) in thirty years, which should give some sense of the magnitude of that achievement. Moreover, Cicero had managed to get elected in the first year he was eligible, which would have been a banner achievement even for a member of Rome’s traditional upper-class. During that consulship (63 B.C.), he further distinguished himself by foiling a planned coup centered around the influential figure of Catiline (L. Sergius Catilina).
Cicero was a key politician in the Late Republic, but it was his misfortune that his life was spent in an era where words meant less than weapons. He sided with Pompey against Caesar, but was granted clemency after Pompey’s defeat. He was not involved in Caesar’s assassination – he was still too much an outsider for some of the stuck-up Roman elitists who made up the conspiracy (though he correctly pointed out at the time that leaving Antony alive would be a fatal mistake). In the aftermath of the assassination, he identified (correctly) Antony as the key threat to the Republic and worked to discredit him politically in a devastating series of speeches named the Philippics (in honor of a similar set of speeches made by the Athenian Demosthenes against Philip II of Macedon, father of Alexander). Cicero’s political assault on Antony succeeded – his reputation was ruined and his popularity in Rome never recovered – but it cost Cicero his life when Antony, in league with Octavian, moved into the capital and had Cicero murdered. Cicero’s literary legacy survived him, however, in part because it was useful for Augustus’ own political ends (e.g. Plut. Cic. 49.5-6).
Cicero’s position as the most eloquent orator of the Latin language – and probably its best prose stylist – is largely uncontested. It was his speaking skills – honed in the courts – that made him so politically successful. He was also a prolific writer and a tremendous amount of his writings survive, including both legal and political speeches, private letters, handbooks on oratory, and a set of philosophical works. As anyone who has read Cicero can tell you, he also has a deserved reputation for pride and self-aggrandizement. While many of Cicero’s contemporaries and readers down to the modern era have been impressed by Cicero’s thinking and eloquence, I feel confident in asserting no one – alive or dead – will ever be more impressed by Cicero than Cicero was impressed by himself.
The Work: De legibus (“On the Laws“) along with his earlier work, De re publica (“On the Republic“) show Cicero attempting to grapple with the nature of the Roman Republic and the prospect for reform. In a sense, De re publica looks backwards, with the discussion couched in a fictional dialogue set at the tail end of the life of Scipio Aemilianus (185-129 BC), although Cicero intends the subject – a rumination on the nature of the Republic and its proper workings, based on a discussion of its history – to be applicable in his own time.
De legibus is more aggressively forward looking. Set in Cicero’s own time (it is a dialogue between Cicero, his brother Quintus and their friend Atticus), De legibus first sets out a theory for the general foundation of law (the topic we will consider today) to use as the basis for a reformed model of the Roman Republic, which is summarized in the third book. Damage to the text means that De legibus cuts off in book three, and there are smaller gaps and fragments in the earlier books as well.
It’s important to get a sense of the situation in the 50s B.C. when Cicero is writing to understand why he feels this is necessary. The previous round of civil wars had ended in 82 B.C., with the victor, the arch-conservative L. Cornelius Sulla, imposing a revised republic with shocking brutality and bloodshed. By the 50s, it would have been clear to anyone paying attention that the peace and apparent stability of the Sullan reforms had been a mirage – the disruptions of the 60s (including the Catilinarian conspiracy, foiled by Cicero) were not one-offs, but merely the first rattlings of the wheels coming off of the cart entirely. I don’t want to get too deep into the woods of how exactly this happened; there are any number of good books on the collapse of the Republic which deal with this period (Scullard’s From the Gracchi to Nero (1959) is a venerable and straight forward narrative of the period; Syme, The Roman Revolution (1939) is probably the most influential – reading both can serve as a foundation for getting into the more recent and often more narrowly directed literature on the topic, note also Flowers, Roman Republics (2011)).
It’s in this context – as the Republic is clearly shaking apart – that Cicero is ruminating on the nature of the Republic, how it functions, what it is for, and how it might be set right. Despite this, Cicero should not be taken for a radical, or even really for much of a reformer; Cicero is a staunch conservative looking to restore the function of the old system, in many cases by a return to tradition as much as the renovation of it. Cicero’s corpus is a plea to save the Republic as it was, not to bury it; it was a plea, of course, that would go unanswered. In a real sense, the Republic died with Cicero.
The following is pieced together from a few sections of the first book of De Legibus – as mentioned before, the entire work is structured as a dialogue and I’ve had to jump around a bit in order to keep this short while still hitting the essentials. I’ve included section numbers so you can follow what parts are being excerpted. The translation here is mine.
[1.17] Marcus: For we are not seeking in this conversation, Pomponius, how to protect an interest in court, or how we might respond to a specific legal consultation. That thing may be a great matter […] but we must comprehend in this conversation the whole cause of universal law [universi iuris ac legum], such that what we call ‘civil law’ may be confined to a small, narrow place. We must explain the nature of the law – and this must be sought in human nature[…(1.18)…]therefore it has pleased the most learned men to commence with law – I think rightly, provided that, as they define it, law is the highest reason, instituted in nature, which orders those things which ought to be done and forbids the opposite. That very same reason, when it is strengthened and fully developed in the human mind, is law.
[1.19]…let us begin by establishing justice from the highest law, which was born before any law was written or any cities at all were even founded.
[1.22] This is the relevant point: this animal – forward-looking, sagacious, versatile, sharp, mindful, full of reason and judgment – which we call human, has been created by the supreme god in a certain splendid condition. They alone of all of the species and kinds of animals partake in reason and thinking, which the others are altogether excluded. Moreover what is – I say not only in humans, but in all of the heavens and earth – more divine than reason? When it is grown up and perfected, it is rightly called wisdom.
[1.29] Marcus: For there is nothing so similar, so as one to one, so equal as all of us are among ourselves. For if the perverting of habits, if the variations of opinions did not twist the foolish of mind and bend them from whence they had started, no one would be more similar to himself than to all people. And so whatever is the definition of humans in general, it applies with equal validity to any one person. [1.30] That is enough argument that there is no dissimilarity in our type, for if there was, no one definition would encompass everyone. And of course reason, by which we surpass the beasts, through which we draw inferences, prove, disprove, discuss and demonstration something – it is certainly common, differing in education, equal in the capacity to learn. For the same things are grasps by the senses of everyone and those things which move the senses move them the same way for everyone, and the things that imprint on the mind, which I spoke about before, the basic conceptions, are similarly imprinted on everyone; and speech, the interpreter of the mind, differs in words but agrees in ideas. There is no one of any nation at all, who cannot arrive at virtue when they have found a guide [ducem].
[1.32] Moreover, what nation does not value friendship, generosity, nor a soul that is grateful and remembers those who have done it a good turn? [What nation] does not hate, does not reject the prideful, the wrongdoer, the cruel, the ungrateful? Since, from these things, it can be understood that the whole race of humans is united together in this, the final result is [gap in the text]…and knowing that living rightly makes people better.
[1.45] To think these things to exist in opinion and not be placed in nature is madness. For what is said to be virtue in a tree or a horse (in which case, we misuse the word) is not placed in opinion, but in nature. And so honorable and disgraceful things are distinguished in their nature…virtue is perfected reason which is surely in nature, therefore all honorable things must be likewise.
Now let’s spell out what Cicero is saying here. Cicero can be hard to follow, especially in translation; a lot of what he’s saying in Latin is easy and eloquent in the original, but it gets muddled in English (especially in my English!). Compounding this problem is the structure of this argument as a dialogue and the digressions and notes inherent in that style. So let’s walk through this step by step.
First, we lay out the topic, which is to puzzle out what the nature of laws are and what good law is. Cicero contends that to really grapple with that topic, you must begin by asking what the law is itself, and he’s playing a bit of a careful word game between two Latin words here: ius and lex (pl. leges), both of which we might translate to ‘law’ in English. But ius – the root of our word, ‘justice’ can also mean justice or right (in the sense of the ‘Bill of Rights’). Put simply, the distinction is between a transcendent sense of right and wrong, appropriate and inappropriate – that’s ius – and written law, the law as practiced, which is lex. Cicero argues that to talk De Legibus – on the laws, as written, we must essentially begin by discussing justice generally (ius), from its foundation. Only then can we usefully discuss the laws (leges) in a specific context (the Republic).
Cicero then proceeds with two key ideas, neither of which is necessarily new to him (both are deeply rooted in yet older Greek Stoic philosophy), but the two of which, when put together are quite remarkable:
- First, human beings are defined by reason and
- Second, reason is the foundation of law (ius)
Let’s start with the first of these two.
Cicero begins this discussion by laying the groundwork with the nature of reason (Latin: ratio). Cicero traces the emergence of reason to a divine act of creation – a “splendid condition” created in humans by the ‘supreme god’ (an aside: the phrase ‘supreme god’ here should not be taken for Cicero flirting with monotheism, rather this is a bit of philosophical verbiage that goes back to Platonism; he was an enthusiastic practitioner of polytheistic Roman religion and a member of the college of augurs – Cicero actually begins this line of argument by asserting the existence of the gods, plural, as a starting point…and making fun of Epicureans along the way). Human reason, Cicero argues, is something that separates us from other animals, but which we share with the gods, and as such, the capacity for reason is what defines human beings.
That idea – humans as uniquely reasoning animals – is common enough, but Cicero carries it forward: if humans are defined by reason, then all humans must possess reason, or at least the capacity for it (Cicero, coming from a very patriarchal society, might well intend ‘all men’ rather than all humans, but his Latin, which reads homines – ‘men/women/humans’ depending on gender (rather than viri ‘men’) – leaves us free to read ‘all humans’ if we like (and I do, the author in this case is – quite literally – dead; fight me) since a masculine plural in Latin may signify either a group of males or a group of mixed gender; homo, hominis used of women by Cicero, cf. Cic. Clu. 70.199). After all, a thing must possess the capacity for its definitional attributes, that’s what makes them definitional. Consequently, all humans must have an equal capacity for reason. Note – as we’ll get to – this does not mean an equal ability to reason, merely an equal potential for the development of reason.
Moving to the second point, Cicero argues, that, with reason it is possible to figure out for yourself the law (ius, in this sense) – as he puts it, ‘what things ought to be done and what things ought to be forbidden.’ This thought was not new to Cicero – it is readily apparent in Greek philosophy rolling around ideas of justice (Greek dike). Reason, I should note, forms half of a two-part ancient conception of the mind: the mind is divided into our reason and our passions. The law is thus found in what you think, not what you feel. This is why Cicero specifies that finding out the law requires learning, it requires a trained or perfected reason – not only so that thoughts are clear, but also so that the passions and their distorting influence might be excluded. Reason is an innate human ability – like, say, running – but it must nevertheless be trained to reach its full potential.
It is at this point that Cicero begins using virtue (virtus) in a particular way. We tend to think of virtue – in English – through the lens of Christian thought about the virtues (humility, charity, chastity, etc), but this is not its original sense in Latin. The word derives from Latin vir (man, as distinct from a woman, or a mere human male) and originally covered the sort of virtues – bravery, strength, determination, a sort of heroic recklessness – which made one a good, aggressive soldier. Cicero is bending that definition in a more philosophical direction – virtue here has the sense of Aristotle’s golden mean: virtue is acting in right relationship with the world (hating what is hateful, cherishing what is adorable, etc). Since Cicero has defined justice already as ‘doing what ought to be done and not the opposite,’ virtue then becomes ‘acting in accordance with justice.’ Thus – not quite contrary, but also not quite exactly as either our meaning or the older Latin meaning – Cicero’s virtue here is the practice and quality of acting in accordance with the law that arises from reason.
It is the combination of these ideas where the intellectual fireworks start: if everyone has access to reason, and reason is the foundation of this most fundamental law (ius), and virtue – right conduct – consists of acting in accordance with that law, then all humans are fully capable of virtue, with proper training. If Cicero stopped there, this claim of the universality of reason would already be significant (cf. Aristotle’s assumptions about the different virtues available to different sorts of people), but what I find most striking here is how Cicero wants to confront us with the necessary corollaries: “There is no one of any nation at all who cannot arrive at virtue, when they have found a guide.” He goes on to clarify that this capacity applies even to strange foreigners he does not like – the Egyptians, who he describes as “those who worship dogs and cats” – an example he chooses because of how silly and superstitious Egyptian religion seemed to the Romans. In essence, picking the strangest foreigners he could think of, Cicero says, “yes, even them.”
Moreover, if the rules about what is right and wrong, what is virtuous and what is shameful – if those rules derive from a quality (reason) which all humans share, then all humans must share those rules too, meaning that the law (ius) applies equally to everyone, with no one living outside of its strictures, or its protections. Indeed, Cicero (1.23) takes this to a stunning extreme: since the gods have reason, and reason produces the law (ius), then even the gods must be subordinate to the law, or as he puts it, “such that now we must suppose there to be as one community [civitas, lit: city or citizenship] in common between gods and humans” (1.23).
This foundational law – what Cicero keeps terming ius – is the product of reason, which is in turn a fundamental facet (indeed, he argues, the fundamental facet) of human nature. Consequently, the law is not subject to opinion, or custom, or even divine diktat (since the gods too, possess the reason which gives rise to it) because it is as much a feature of the natural world we live in as what we would call things like the laws of physics. It bubbles up from our very nature, rather than being imposed from above us by some outside authority. It is in this sense – a law of conduct which arises directly out of human nature, and thus is universal to all humans – that we call this idea natural law, or in Latin, ius naturale.
This understanding of the origin of law, while not entirely new to Cicero (he is borrowing it, as I noted, from the Stoics) does represent an important departure from other theories of law. Greek writers (I think, in particular, of Aristotle and Herodotus here) often saw law as a something decidedly culturally contingent; one culture has one custom, another culture another custom; such a vision leaves no space for a truly universal code of rights by which a human law code may be judged. Alternately, one might insist – as Hammurabi does in the epilogue of his famous law code – that laws were handed down from the gods through mortal agents, and thus had divine authority.
Which finally bring us back to laws as we encounter them: written laws. Written laws – the sort enforced by courts – are, at least when everything is working properly, supposed to be the product of the effort to take that natural law and translate it into clear rules, systems and punishments for society. Indeed, Cicero argues that ‘laws’ which are conceived for any other purpose are not laws at all, for “even if a people accept as law something destructive, it is not any kind of law among the people (2.13).” Which is a fancy way of saying that natural law creates a standard against which human law may be judged and found wanting – since natural law exists before, outside and beyond the authority of humans and thus of human states, it is not open to amendment by them, any more than we may, by legislation, change the law of gravity.
Then to sum up the argument:
- Reason is the defining attribute of human beings, thus
- All human beings possess reason (as a consequence of divine action), and
- The law (ius) derives inevitably from reason, thus
- All humans have the capacity to determine and attain virtue (= acting in accordance with the law) and
- The law (ius) applies to all humans equally such that
- The law (ius) is a fundamental component of human nature, thus
- Written law ought to merely codify the natural law and
- Written law can only contradict, but never overturn the natural law.
Now, I want to clarify for a moment what Cicero is not saying. Cicero is not suggesting that all human beings are fundamentally equal, except in so much as they have the capacity for reason. It is abundantly clear from his writings he does not believe that; Cicero quite honestly assumes that rich men are better in ability and morals than poor men, that men are better in ability and morals than women, and that free people are better in ability and morals than unfree people. Of course those assumptions – especially as it pertains to moral worth – are quite at odds with Cicero’s thinking above; he would be far from the first thinker who didn’t quite reach all of the morally necessary conclusions from his ideas, or who feel sadly short of his ideals.
Moreover, Cicero is much more focused on the idea of the law as establishing demands for certain kinds of behavior – what to do and not to do – than he is on the idea that the law might establish certain universal rights – what may not be done to you. He hints at the latter in several passages, but the idea remains frustratingly underdeveloped, because he is much more interested in the idea of the law as something that guides your actions, a teacher of virtue, rather than something that restricts the actions of the state.
I should also note that while Cicero’s thoughts on the nature of law permeated the thinking of the later Roman jurists and the application of Roman law during much of the imperial period, they largely didn’t see or didn’t care to resolve the clear contradictions in the previous two paragraphs either. The Romans had a concept of the ius gentium – a set of laws and rights binding on all peoples and even all states, distinct from the ius civile (civil law, applying only to the citizens or residents of a state) – even before Cicero. There isn’t space here to get deep into Roman legal thought, but I think it is necessary to note that Cicero’s high-minded ideals were imperfectly realized both by him and subsequent Roman legal scholars – which is not the same thing as saying they were completely unrealized, but Roman law rarely lived up to the ideal Cicero has set out here. It frequently did not try.
Cicero’s thinking on natural law never goes away completely, but its greatest significance is probably in the place it holds as one of the foundational tenants for modern liberal (in the historical sense, not in the modern American political sense) political theory. Cicero’s concepts of natural law were picked up by both Thomas Hobbes and John Locke. Locke represents something of a key inflection point, as he, in his Two Treatises of Government re-frames the natural law from a code of conduct for the achievement of virtue (as in Cicero) or a set of rules to be enforced by the state (as in Hobbes), but rather as a set of natural rights which – because they derived from natural law, which in turn derives from universal human reason – might apply to all humans equally.
Thomas Jefferson was a reader of both Locke and Cicero, and the idea of natural law appears – declared as “self-evident” – in the preamble to the United States Declaration of Independence, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” That trio of rights at the end is a rewording of John Locke’s formulation of the rights of “life, liberty and property” which in turn, in his thinking, are an unavoidable consequence of the existence of a natural law.
The insistence that such rights as found in natural law are unalienable – or in the later wording of the Universal Declaration of Human Rights, inalienable – is to be found right in Cicero, as the fundamental law preexists, underlies and thus cannot be altered by subsequent human law. Rights thus contained in natural law cannot be granted or removed, only recognized or abridged. Of course, just like Cicero, these later natural law thinkers did not full realize the radical morality of their philosophical vision; Jefferson, despite insisting so brilliantly that all men were created equal, held people in cruel bondage.
I do not want to get too deep into theology here, but I would be remiss if I did not also note that natural law is foundational to much Christian legal and ethical thinking, filtered though St. Thomas Aquinas in the Summa Theologiae, with an ironically strong influence from the (pagan) Cicero. Aquinas’ views on natural law are, to my understanding, still strongly held Catholic doctrine, but have also found increasing purchase among many other Christian denominations, particularly through the writing of C.S. Lewis, whose Christian apologia, Mere Christianity (1952), is fundamentally based on an argument from natural law, as well as his earlier essay series, The Abolition of Man (1943); both works are quite popular, particularly among American evangelicals.
Why does this all – the intellectual history of ideas – matter? In an immediate sense, of course, De legibus matters, because it is a link in an evolving chain of ideas which begin with the stoics, pass through Cicero, are picked up by early modern thinkers and have become, in the modern era, the foundation for our concept of human rights – you will permit me to assert that universal human rights are, without qualification, a good thing. At each stage the ideas changed and expanded, representing what I think may be fairly said to be an improved moral understanding. In short, to understand an idea like human rights, it is necessary to understand where it came from and how it evolved.
But that understanding can look forward too. Because each idea in that chain was predicated on the conclusions of the previous one, the whole edifice stands by the strength of its foundations. Too often, we forget that to reject the foundations – or even simply to forget them – is to reject the conclusions, at least assuming we can find no other basis to reach them. Both Nietzsche (in On the Genealogy of Morals) and C.S. Lewis (in The Abolition of Man) recognize this; the former greets it with glee and the latter with horror the idea that destroying the reason and natural law that sits at the intellectual base of our system of human rights must topple the whole thing. It can be no accident that totalitarian ideologies seeking to undermine the human rights of their victims found Nietzsche’s philosophy seductive.
If we lose sight of the foundations of our most cherished ideals, we damage our ability both to understand them and (perhaps more importantly) to defend them.
And that is one of many, many reasons to avail yourself of a trip through Cicero.