by Cicero
The relevance of the Republic to the current political situation was quite real, but it was not of the kind that was likely to have an immediate practical effect. Cicero could do nothing to avert the civil war, which broke out barely two years after the Republic was put into circulation. The murder of Caesar in 44 BC revived Cicero’s hopes; it must have appeared to him that all that he had said in the Republic about the killing of tyrants had suddenly come true. But the sequel did not meet expectations.35 Cicero distrusted Caesar’s heir; he is on record as judging that Octavian could not be a ‘good citizen’ (let alone, one supposes, a type of the ‘best citizen’ described in the Republic)36 Nevertheless, against his own better judgement, he entered into an intrigue with Octavian in the hope that the latter would restore senatorial rule, and courted open hostility to Antony. However, Octavian and Antony at length came to an understanding; proscriptions were instituted; Octavian agreed to Antony’s insistence that Cicero should be outlawed; and Cicero, indecisive as always, failed to escape from Italy and was assassinated. A vivid account of his death is given by Plutarch, who tells how he ordered his litter to be put down and stretched out his neck to meet the murderer’s stroke.37
The Laws
The Laws was begun in the same period as the Republic, at the end of the 50s. Work was suspended when Cicero went out to govern Cilicia in 51, and, whether or not it was resumed in 46 (Fam. 9. 2. 5), it may never have been finished. Though Macrobius refers to a fifth book (Saturnalia 6. 4. 8), nothing survives beyond Book 3, and even that book is incomplete. Particularly regrettable is the loss of the sections on education and the law-courts.
The setting is Cicero’s home town, Arpinum, just over 70 miles (112 km.) south-east of Rome. This choice enabled Cicero to affirm his love of his native district (2. 2–3), to honour his grandfather (2. 3 and 3. 36) as a bastion of local conservatism, to bring in the powerful figure of Marius, on whom he had written a poem (1. 1–2), and to describe the beauty of the countryside (2. 6), which represented a benign nature, corresponding to the nature of God and human reason. The time is a day in late June—an idea derived from Plato (2. 69).
The opening sections on Marius’ oak remind us not only that Cicero was a poet but also that the details of literary works do not have to be historically accurate. The same goes (we are invited to infer) for the Laws, which, though containing real characters and much historical material, does not represent an actual conversation. The sections on Roman historiography also have a preparatory function, in that they establish Cicero as a man with a firm grasp of Roman traditions and also an extensive experience of politics.
The two participants in the dialogue (apart from Cicero himself) are Titus Pomponius Atticus and Quintus Tullius Cicero. Atticus (110–32 BC)38 was a knight who inherited 2 million sesterces from his father and another 10 million from his uncle. Cultivated and charming, he contrived to remain on friendly terms with Marius and Sulla; Pompey and Caesar; Brutus, Antony, and Octavian— an extraordinary feat, which suggests not only a benign and generous peacemaker but also a wily opportunist. He spoke excellent Greek, and spent much of his time in Athens; hence the cognomen Atticus. In spite of his wealth, his life-style was in most respects Epicurean. He avoided public office, and his scholarly research (on genealogy and chronology) was of a kind that involved no political judgements. In a period of drastic change Atticus was a symbol of continuity. His conservative temperament anchored him firmly in the past; unlike his boyhood friend, Cicero, he survived the turmoil of the Roman revolution, and ‘he lived to see his granddaughter engaged to the future emperor Tiberius’.39
Quintus Tullius Cicero (102–43 BC) was Cicero’s younger brother. He was aedile in 65 and praetor in 62 (for these offices see Appendix). He was governor of Asia Minor 61–59, legate of Pompey in Sardinia 57–56, and with Caesar in Gaul 54–51, during which time he took part in the invasion of Britain. He joined Pompey in the civil war and was killed in the proscriptions of 43. Quintus was married to Pomponia, Atticus’ sister, from 69–44. He had literary interests, and is known to have written four tragedies. To judge from the Laws, he held rather narrow oligarchic views (see, for example, his remarks on the tribunate in 3. 19–22). From Cicero’s correspondence he emerges as a conscientious public servant with considerable physical courage but an uncertain temper and unreliable judgement.40
The main phases of Cicero’s exposition are noted in the headings in the text. Here it is enough to make a few general points about the nature of the work, along with its value and limitations, especially in regard to Books 2 and 3. At one point (2. 23) Quintus remarks that Cicero’s proposals about religion ‘are not very different from the laws of Numa and the customs of today’. And it is true that not only those sections but the Laws as a whole lack the innovative quality of Plato’s work, being designed rather to suit a revived version of the Roman constitution described in the Republic. For example, the tribunes’ powers are retained in spite of Quintus’ objections (L. 3. 19–22), and the people keep the right to make laws, elect magistrates, and serve as a court of appeal. Yet some proposals are new. Augurs are to have more power; fetials are given wider diplomatic responsibilities (for these offices see Appendix); and other priests are to be available to advise on private ceremonies. The censorship is never to be left vacant; the importance of the quaestorship is reduced; the aedileship becomes the first step in the cursus honorum and brings access to the Senate. The Senate itself is given greater powers (e.g. the right to appoint a dictator in emergencies); members are required to attend regularly and to make themselves familiar with current affairs. They will no longer have the privilege of ‘free embassies’ (3. 18), and when serving as magistrates they are to be more strictly accountable for their actions. The censors are required to implement these reforms.
It is fair to point out that in his religious measures Cicero is outlining an official system for the country, not a personal creed. We cannot be sure about how much he accepted. He was satisfied, however, that no government could ignore the age-old beliefs and rituals of the people, however much they might be despised by thinkers like Lucretius. Moreover, if the system was properly managed it could contribute significantly to the stability of the state. So much is intelligible. It is disappointing, however, to see a man who could write so eloquently about the majesty of the gods condoning the manipulation of religious laws for immediate political ends (2. 31, 3. 27). In the speeches a certain amount of pious fraud might be expected, but even the letters show some awkward discrepancies. In Fam. 1.1.3, for instance (on the restoration of Ptolemy) Cicero supports a bogus oracle, conveniently discovered by C. Cato. But then in Fam. 1. 7. 4 he suggests ways of circumventing it. His support of divination is based on its political utility.
The political limitations are more serious. Cicero dreams of Rome as she had been a hundred years earlier, before the structure had begun to give way under the strains of empire. Granted, it was too late to save the Republic now; three years later Caesar would cross the Rubicon. But even if, by some stroke of magic, Cicero’s dream had come true, disaster would not have been averted. By the 50s huge problems had developed which could not be solved within the framework of what was, essentially, a city-state. First, an empire of such size and complexity could not be run by a small elite of all-round amateurs, in which within a decade the same man might be expected to manage finances, administer city departments, sit as a judge, and lead a military campaign. The voting-system was over-centralized and out-dated; citizens could no longer be expected to travel to the capital for elections and other meetings of the assemblies. Distance also brought problems of control; governors often exploited the provinces in order to meet their election ‘expenses’. There were also intractable economic problems resulting partly from the decay of smallholdings owing to the absence of farmers on military service, partly from new farming methods (large ranches worked by slave labour). All this led to the growth of a workless and resentful urban proletariat, which could easily be inflamed by
demagogues. That, in turn, contributed to the worst problem of all. Troops were recruited by promises of loot and land. So at the end of a campaign there were thousands of well-trained fighting men in Italy, who depended for their future, not on the Senate, but on the power of an ambitious general. None of these questions is confronted by Cicero. So, whatever his hopes and intentions, there is an air of unreality about the Laws.
Nevertheless, the work contains much of interest in social and political history, in matters of religious ritual, and in a conception of law and nature which recurs again and again in the history of jurisprudence. Finally, the Laws throws further light on the personality of a brilliant and warm-hearted man who, without high birth or a military command, strove by his gifts of persuasion to make the old republican system work—a system which in three centuries had extended Roman power from Egypt to the Channel. Many years later, the emperor Augustus (who had acquiesced in Cicero’s murder) found one of his grandsons with a work of Cicero’s in his hand. The youngster tried to hide the book under his cloak, but Augustus took it from him and read through a large part of it where he stood. Then, handing it back, he said ‘That was a master of words, my boy. A master of words and a lover of his country. ’41
Natural Law
Natural law, as expounded by Cicero in L. i, rests on certain fundamental beliefs.
1. That the universe is a system run by a rational Providence. In L. i. 21 Atticus obligingly makes this concession to enable the discussion to begin. Little is said in the Laws about the rhythms of the natural world, perhaps because the topic has been explored elsewhere.42 But in L. 2. 16 Cicero says we should be grateful for ‘the procession of the stars, the alternation of day and night, the regular succession of the seasons, and the fruits which are produced for our enjoyment’.43
2. That Mankind stands between God and the animals. In virtue of his physical needs, appetites, and mortality, man is part of the animal kingdom. But, unlike other animals, he has been given the power of reason. This enables him to work the land and to use animals for his own purposes (L. 1. 25).44 Moreover, his rational soul, which can survive death (L. 1. 24), makes him akin to God. So, in enacting and acknowledging wise laws he is, however imperfectly, behaving like his creator; for law is ‘right reason in commanding and forbidding’ (L. T. 33).45
‘Nature’, then, can be used in connection either with lower beings (animals and men) or with higher beings (men and gods). In the former context brutish nature may be contrasted unfavourably with the nature of civilized life;46 or corrupt society may be contrasted with the natural life of animals.47 In the second context nature provides a criterion for human laws and customs, which are only good in so far as they coincide with divine reason.48
3. That human potential can only he realized in communities. Why did people form communities? Did they come to realize that only in ordered groups could they protect themselves and provide for their needs?49 Or did God take pity on their savagery and bestow the gifts of respect and justice?50 Or did people form villages, and eventually city-states, because, as Aristotle put it, Man was ‘a political animal’—i.e. he possessed an innate impulse to live in a polis, or city-state, an organization which fulfilled his nature just as an oak fulfils the nature of an acorn?51 Cicero acknowledges the ‘need’ theory, but gives greater emphasis to the view of Aristotle: ‘the primary reason for a people’s coming together is not so much weakness as a sort of innate desire … to form communities’ (R. 1. 39). Such communities, of course, involve government and laws.
4. That Man is a distinct species. The similarities of human beings—in physical and mental powers, in feelings, values, and aspirations, as well as in defects and vices—far transcend their differences in nationality, custom, religion, and social organization.52So, for all his diversity, Man represents a single concept, embraced in a single definition (L. i. 29–32). In virtue of this unity, he is subject everywhere to the same natural law, which stands above all codes of positive law and governs his survival and welfare. This momentous insight was elaborated by the Stoics with their concept of oikeiosis, a process whereby a living being becomes attached to everything that shares its nature. This idea of affinity or kinship lies at the heart of humanism. Its implications for colour, sex, and class are still being worked out, slowly and painfully. Even slavery has not yet been abolished, in spite of the fact that in the fourth century BC Alcidamas of Elis in his Messenian Oration said, ‘God has sent forth all men free; nature has made none a slave.’53 A thousand years later, Justinian’s Digest, incorporating the formulations of Ulpian (early third century AD), says ‘all men by natural law were born free’54—an assertion memorably echoed by Rousseau.
5. That law is based on nature, not on opinion. ‘Nature’ here means the condition of man as it actually is, within the cosmos. So the law based on this objective nature will be a set of general principles, providing a criterion for the laws of diverse communities. Such laws are not necessarily good. Since all men are fallible and many are wicked, ‘it is foolish to imagine that everything decreed by the institutions or laws of a particular country is just’ (L. 1. 42). This recalls a passage of Aristotle where he distinguishes specific law enacted by various communities from general law, which is based on nature (kata physin). He goes on to cite the famous clash between Creon and Antigone in Sophocles’ play (in particular, lines 456–7). Antigone, he says, appeals to what is just by nature (physei dikaion) in burying her brother, even though that has been forbidden by the ruler.55
Unless a law is contrary to nature (in which case it is a bad law, or, as some argued, not a law at all), a citizen has a duty to obey it, whether or not it is in his selfish interests to do so, and whether or not he can get away with ignoring it (L. i. 40–1, 43–5). Here Cicero is in line with Plato, who goes to much trouble to refute the idea that the sensible man will aim at a reputation for justice but will behave badly when he can escape detection.56 Justice, then, like the other virtues, should be sought for its own sake, and vices should be shunned because they are bad in themselves (L. 1. 48–52).
This is not the place to follow the theory of natural law through the centuries.57 It is worth pointing out, however, that in the 1940s the appalling, but legally sanctioned, excesses of Nazism and Communism led to a revival of interest in natural law: surely there had to be some criteria, however general, by which evil laws could be judged and condemned. At the end of the war, Jacques Maritain published his essay The Rights of Man and Natural Law. Though Maritain was a Christian, he called his political philosophy ‘humanist’ (29), and conceded that non-Christians might share it. The point here was that, from at least as early as Hugo Grotius in the seventeenth century, it had been recognized that, even if the whole theological dimension were removed, natural law could be seen as a set of principles without which civilized society could not survive. From the other direction the distinguished positivist, H. L. A. Hart, discerned ‘a core of good sense’ in the doctrine of natural law58—a step welcomed (with qualifications) by A. P. d’Entreves.59 This was the sort of thing that Dennis Lloyd had in mind when he said ‘One of the most significant contemporary characteristics of jurisprudence is the coming together of positivism and natural law’.60 Nevertheless, many problems are still the subject of strenuous debate, including the basic ‘Is-Ought question’, that is, can ‘ought’ ever be reduced to, or derived from ‘is’? Is it logically legitimate to say ‘She is your sister, therefore you should treat her kindly’?61
Such problems, of course, are usually discussed in the general context of moral philosophy. But many would think it reasonable to relate them to the idea of natural law. For example, like every law, ‘thou shalt not kill’ admits of exceptions—as in self-defence, in a just war, and possibly in the case of an intolerable tyrant. In antiquity suicide, too, was permitted in extreme circumstances, not only by Epicureans but also by the Stoics, who believed in natural law. What, then, of voluntary euthanasia for a person suffering from an incurable illness? Though no
t new, the problem has now become urgent as a result of modern techniques of prolonging life. Again, procreation (within marriage) was approved of for centuries as fulfilling natural law, and contraception was condemned for violating it (as it still is by the Roman Catholic Church). But before Malthus very few foresaw that overpopulation would become a serious threat to human survival. Or again, until very recently, most people agreed with Cicero and the Stoics in assuming that man’s dominion over animals (including birds and fish) was in accordance with natural law. But no one envisaged that man would ever be in a position to treat some species as machines and hunt others to extinction. And what of inanimate nature? Does natural law have nothing to say about the squandering of resources and the pollution of the planet? If natural law is relevant to such matters, does that mean it has to be changed or extended? Or has it always included certain qualifications—qualifications which are now being discovered by the light of experience? For these and similar questions Cicero’s observations are still a good starting point.