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was not of course peculiar to Cicero. But the difference between Cicero™s
picture and that of Plato or Aristotle is due to a gross simplification
of how cosmic reason is related to its operation in the human world.
The symptom of this simplification is Cicero™s use of the word lex to
describe what Plato called the Forms or Ideas and Aristotle called “first
principles.” By describing the cosmic order as lex, and by refusing to
recognize any distinction or gap between the human faculty of rationality
and the cosmic principle of reason, Cicero evaded the difficulty that
plagued his Greek predecessors, i.e., that of explaining how a purely
spiritual ordering gets translated into human arrangements. Instead, he
bluntly described reason as “the first common possession of man and
God,” and took this to be a necessary implication of recognizing that man
“has been given a certain distinguished status by the supreme God who
created him.” He went on to say with utter confidence that “those who
have reason in common must also have right reason in common. And
since right reason is Law, we must believe that men have Law also in
common with the gods. Further, those who share Law must also share
Justice; and those who share these are to be regarded as members of the
same commonwealth,” a claim his Greek predecessors would certainly
have considered disputable. And so Cicero concluded that “we must now
conceive of this whole universe as one commonwealth of which both gods
and men are members . . . men are grouped with Gods on the basis of
blood relationship and descent.”5 The ground for this blood relationship,

Marcus Tullius Cicero, De Legibus II. iv. 8; II. iv. 10“11, in Cicero: De Republica, De
1

Legibus, ed. T. E. Page, trans. Clinton Walker Keyes (Cambridge, MA: Harvard
University Press, 1928).
Ibid., I. v. 19. Ibid., I. vi. 19 318.
2 3

Ibid., II. vii. 16. Ibid., I. vii. 23“24 321“23.
4 5
Cicero 45
Cicero explains, is that “while the other elements of which man consists
were derived from what is mortal, and are therefore fragile and perish-
able, the soul was generated in us by God. Hence we are justified in saying
that there is a blood relationship between ourselves and the celestial
beings; or we may call it a common ancestry.”6
Cicero was not just arguing, as had Plato and Aristotle, against the
belief, taught by Epicurus, that God does not trouble himself about
mortals. He wholly ignored the mortal element in man. His view of
human reason as identical with the mind of God enabled Cicero to
describe law as an innate idea present in all human beings and identical
with the divine element in human nature. If only men were willing to
consult it, the divinity within them would tell them what to do with
complete certainty. Law need not, indeed could not, therefore be derived
from edicts or from the Twelve Tables, but only from “the deepest
philosophy.”
It follows, Cicero concluded, that there is “only one principle by which
men may live with one another, and that this is the same for all, and
possessed equally by all.”7 This principle explains why love of truth and
independence and propriety are natural and cruelty is contrary to nature,8
and why virtue and vice are “judged by themselves and not by anything
else” in just the same way as truth and falsehood. What confuses us into
supposing otherwise is the variety in men™s beliefs about moral questions.
Because we do not find the same variation in the conclusions drawn from
the senses, we conclude that Nature has made the senses accurate and that
what they tell us is real, whereas those matters about which men disagree
must be unreal. But the explanation for this discrepancy is simply that
“our senses are not perverted by parent, nurse, teacher, poet, or the stage,
nor led astray by popular feeling; but against our minds all sorts of plots
are constantly being laid.” Men™s moral judgments are corrupted not only
by such outside influences but also by “that enemy which lurks deep
within us, entwined in our every sense.” That enemy is “pleasure,” that
“counterfeit of good” and “the mother of all evils.” Men fail “to discern
clearly what things are by Nature good, because the same seductiveness
and itching does not attend them” as the objects of pleasure.9
Because nature is governed by the “might, . . . reason, power, mind,
will” of the gods,10 human virtue consists in living according to human
nature, which is identical with living in accordance with universal reason,


Ibid., I. viii. 24 323. Ibid., I. xiii. 35.
6 7
8
Marcus Tullius Cicero De Officiis I, 14. Cicero: De Officiis, ed. G. P. Goold, trans.
Walter Miller, vol. XXI (Cambridge, MA: Harvard University Press, 1913).
De Legibus I. xvii. 45“47. Ibid., I. vii. 21.
9 10
46 Law anchored to a cosmic order

that is to say, with the directing reason of the universe. And this reason
should be called lex because it is the only law by which men are obliged to
be governed. Cicero accordingly derived lex from legere, to choose,
because “Law is the distinction between things just and unjust, made in
agreement with that primal and most ancient of all things, nature; and in
conformity to nature™s standard are framed those human laws which
inflict punishment upon the wicked but defend and protect the good.”11
And he concludes that what men ordinarily call laws, that is to say, “those
rules which, in varying forms and for the need of the moment, have been
formulated for the guidance of nations,” are not really lex. They bear that
title “rather by favor than because they are really such”; they are what the
populace thinks of as law, because the crowds “give the name of law to
that which in written form decrees whatever it wishes, either by command
or prohibition.” But law properly understood is identical with justice:
“every law which really deserves that name is truly praiseworthy,” for “in
the very definition of the term ˜law™ there inheres the idea and principle of
choosing what is just and true.”12
That the laws of the different nations are not all the same indicates only
that they are lacking in justice. Cicero claimed that the failure to identify
law with justice also explains why men wrongly suppose that it is fear of
punishment, rather than an innate sense of justice, that makes men obey
the law. But once we recognize that “true law is right reason in agreement
with nature,” then it necessarily follows that true law is “of universal
application, unchanging, and everlasting,” which “summons to duty by its
commands, and averts from wrongdoing by its prohibitions.” To alter
this law, or to attempt to repeal any part of it, is a sin. In any case, it is
impossible to abolish it, or to free ourselves from its obligations by the
actions of magistrates, senates, or people. And once we recognize this true
law, we see that “there will not be different laws at Rome and at Athens,
. . . now and in the future, but one eternal and unchangeable law will be
valid for all nations and all times” who will thus be subject to the one true
master and ruler, God, who “is the author of this law, its promulgator,
and its enforcing judge.” Human beings need no one to expound or
interpret this law; they need only look within themselves to discover it.
And anyone who refuses to do so is “fleeing from himself and denying his
human nature.”13
At no point does Cicero stop to consider the question that both
Aristotle and Plato addressed with such careful attention “ how in a
mortal world, where both human beings and things are constantly

Ibid., II. v. 13. Ibid., I. vi. 19; II. iv. 11“12.
11 12

De Republica III. xxii. 33.
13
Cicero 47
altering, could unchanging law be equally suitable for all times and places.
He says nothing about distinctions between more and less abstract prin-
ciples, nor could he have done so without qualifying his simple conclusion
that what is true law is absolutely certain and divinely ordained. For if in
law there is a movement from more to less abstract principles, and if that
is not a purely logical or automatic movement but a genuine attempt to
take account of contingent circumstances, then there can be no such
certainty. Nor does Cicero consider the implications of saying that we
need not look outside ourselves for an expounder or interpreter of law.14
For if, as he says, the true law is imprinted on all men, how can there be
false interpretations? In short, Cicero™s identification of law with justice
and nature, and his insistence that the one true law is known intuitively by
all men, takes no account of the mortal character of the human world.
Nor does Cicero attempt to explain why, if true law is imprinted on the
souls of men, there is any need for law in the sense of human regulations
among men who are as good as he exhorts them to be. Although he
suggests that an innate disposition to seek pleasure is what distracts
men into bad ways, he makes no attempt to consider the relation between
this bad disposition and reason, nor to explain why there should be
anything such as senates and magistrates deliberating about legislation
and making judicial decisions, or why there should not be merely a
policing body to administer punishment for violations of what all men
naturally know to be law.
Only in one respect did Cicero pursue the implications of his view of
law. He explicitly recognized that the postulate of believing that true law
is known innately by men is that all men are alike, and that their individu-
ality is merely a perversion of true human nature. The fact “that right is
based, not upon men™s opinions, but upon Nature,” he says, “will imme-
diately be plain if you once get a clear conception of man™s fellowship and
union with his fellow-men. For no single thing is so like another, so
exactly its counterpart, as all of us are to one another. Nay, if bad habits
and false beliefs did not twist the weaker minds and turn them into
whatever direction they are inclined, no one would be so like his own self
as all men would be like all others.” Here the similarity among human
beings described by Aristotle as the possession of the same set of faculties
and the same place on the scale of being has been translated by Cicero
into the conclusion that the same ideas are “imprinted on our minds, are
imprinted on all minds alike.”15 In making this simplistic translation,
Cicero was offering the view of human beings consistent with his view


De Legibus I. x. 30.
14 15
Ibid.
48 Law anchored to a cosmic order

of law as one with nature and justice. Although Plato and Aristotle also
regarded human individuality and mortality as a defect, they nevertheless
recognized that the differences among human beings are an intrinsic
quality of their humanity which made it unavoidable that even good
men might disagree about what is right here and now. Both were seriously
concerned with explaining how the variety in the laws suitable for the
human world is related to the eternal, natural principles inherent in the
cosmic order. No such concern appears in Cicero™s discussion, which only
reiterates, in different words, that law commands and prohibits what all
men know innately to be right.
None of this is put in question by what is commonly described as
Cicero™s “skepticism.” He denied the Stoic view that the relation between
man and God, as he described it, could be demonstrated to be necessarily
true by a formal argument. Theology is not a substitute for natural science,
he said, and to base one™s belief in God on dialectic could only weaken the
case; the belief in God is too precious a possession to be imperilled by
founding it on false dialectic. But though Cicero was in this sense a
“skeptic,” he nevertheless believed the truths that the Stoics tried to
demonstrate, and he believed that those truths were manifest. He did not
in the least doubt that the human soul is of divine essence, and that human
reason is one with the divine reason that ruled the universe. In short, Cicero
was not at all a skeptic in the sense of denying that human beings had
access to indubitable truths. On the contrary, he was a much more thor-
oughgoing pantheist than his Greek predecessors, because he recognized
none of the difficulties with which Plato and Aristotle struggled in their
efforts to reconcile pantheism with the concrete contingent reality of the
human world.
The simplistic pantheism of Cicero accounts for his reputation as the
father of natural law. But it is a false reputation, because the foundation
for natural law theory is as much present in Plato and Aristotle as in
Cicero, and the doctrine was elaborated only much later, above all by
Aquinas. It is true, however, that Cicero is the founder of what in the
twentieth century is commonly taken to be the doctrine of natural law.
For it is in Cicero that we find a totally unqualified identification of law
with justice, reason, and nature, and a complete disregard for human
individuality and the contingency of human existence, which characterizes
the currently popular versions of natural law.
The simplistic character of Cicero™s identification between law and
justice is displayed, above all, in his complete indifference to the dis-
tinction that plays so important a part in Aristotle™s view of law, the
distinction between practical and theoretical reasoning. Cicero identified
practical reasoning with fixed precepts of conduct for ordinary men
Cicero 49
telling them what to do in order to be good. His skepticism about
theoretical proofs for God™s existence and His dominion over the universe
did not prevent Cicero from being completely dogmatic in the practical
sphere. If he denied the possibility of producing logical proofs of ethical
truths or of achieving certainty through dialectical reasoning, he did
not deny the possibility, nor even the necessity, of maintaining certainty
about what it is good to do. There is nothing in Cicero about the limita-
tions on practical reasoning imposed by the contingency of the human
world that Aristotle stressed. Nor is there any attempt to relate practical
precepts to more abstract principles. Although Cicero links his study of
duty in De Officiis with his study of telos and the summum bonum in De
Finibus, he offers no understanding of how that link operates in practical
reasoning. For Cicero™s picture of knowledge contains no modulations,
only a collection of manifest and certain truths, both about how things
are and about what men ought to do.
What makes Cicero™s neglect of practical reasoning especially striking is
that his reflections on law are shaped by practical concerns much more
exclusively than were the reflections of his Greek predecessors. Their view
of law was an intrinsic part of a coherent philosophical theory and
remained so even when their discussion of law included a response to
the political events of their day. But Cicero, like many of those now
concerned with reviving natural law, was interested only in persuading
his contemporaries to adopt certain policies. He phrases the issue as a
question about whether utility is the only criterion for law, or whether law
need also be “just.” And he connects “utility” with “self-interest,” from
which it follows that the only question to ask about law is whether it
serves “self-interest” or “justice.” But Cicero does not explore the charac-
ter of self-interest nor indicate how the relation between law and various
sorts of interests should be properly understood.
Instead, he concentrates on denying that the principles of justice are
founded on the decrees of peoples, the edicts of magistrates, or the
decisions of judges. If this were so, he argues, then “Justice would sanc-
tion robbery and adultery and forgery of wills, in case these acts were
approved by the votes or decrees of the populace. But if so great a power
belongs to the decisions and decrees of fools that the laws of Nature can
be changed by their votes, then why do they not ordain that what is bad
and baneful shall be considered good and salutary?”16 This concern of
Cicero™s echoes one that appears also in both Plato and Aristotle, the
concern to combat an infatuation with democracy that leads men to


Ibid., I. xvi. 43“44.
16
50 Law anchored to a cosmic order

conclude that the only standard for law is whatever the majority finds
desirable. But the elaborate arguments and distinctions considered rele-
vant to this question that appear in Plato and Aristotle are not to be
found in Cicero. He simply insists that the only escape from the whims of
the mob is to recognize a natural, universal, eternal standard of justice.
In saying so, Cicero jettisons the rule of law in the sense valued by the
Greeks. Although he recognizes that law is commonly identified with
written rules, he refers to that identification only in the most condescend-
ing and disapproving manner: “But since our whole discussion has to do
with the reasoning of the populace, it will sometimes be necessary to
speak in the popular manner, and give the name of law to that which in
written form decrees whatever it wishes, either by command or prohib-
ition. For such is the crowd™s definition of law.”17 Given this view, it is not
surprising that the opposition between law and custom, which is so
essential for the Greeks, is denied by Cicero. Instead he identifies custom
with natural law. At the source of law, he says, is what our ancestors
considered good; the custom of our ancestors is one with law and virtue.
Whereas the Greek emphasis fell on the contrast between government
by steady, effective rules and arbitrary government, Cicero emphasized
rather the contrast between human judgments and nonhuman stand-
ards in order to establish that unless men rely on nonhuman standards,
there can be no order. His fundamental distinction is not therefore
between rule under law and rule without law, but between “just” and
“unjust” governments. By “unjust” government, or when he speaks of
tyranny and despotism, Cicero means nothing more than governments
that do the wrong things. When he denies the “title of commonwealth” to
a government in which “everything is subject to the power of the multi-
tude,” and likens it to the tyrannies at Syracuse, Agrigentum, and Athens,
he does not dwell on the arbitrariness of mob rule and its similarity to the
arbitrariness of tyrants, as did Aristotle, but emphasizes rather the desire
of the multitude to do what is unjust and, in particular, to confiscate
property: “For in the first place a people exists only when the individuals
who form it are held together by a partnership in justice. . . Nor indeed is
it right . . . that an insane multitude should be left in uncontrolled
possession of the ˜property of the people™.”18 When he argues that it is
unimportant whether one, few, or the many rule, he does not say, as did
Aristotle, that what really matters is whether whoever rules is subject to
law, but rather “if wisdom rules the State, what difference does it make
whether that wisdom is the possession of one person or of several?”19

Ibid., I. vi. 19. De Republica III. xxxiii. 45.
17 18

Ibid., III. xxxv. 47.
19
Cicero 51
Nowhere does Cicero recognize that a degree of rigidity is inseparable
from law and that this accounts for both the benefits and the drawbacks
of law. Whereas Plato emphasized that rule by the philosopher king is
preferable because such a ruler can make decisions perfectly suited to the
changing circumstances of human life as rules of law cannot do, and
Aristotle argues that even the wisest of rulers “ being human rather than
philosopher kings “ would do well to rely on law, Cicero never raises this
question about law. He praises rule by the wise man and identifies law
with the rule of wisdom and justice, but never stops to consider the
relation between law and steady, general rules, nor the injustice that is
inseparable from submitting the changing multiplicity of the human
world to fixed rules. Nor does he consider the problem of interpreting
natural standards of justice for human conditions here and now. When
arguing in favor of “natural law,” he speaks as if what constitutes “true
law” and the best possible regulation for every community at any time is
obvious. And he identifies the view that laws are bound to differ in
accordance with the different conditions of particular communities with
an attempt to destroy the objectivity of law, to use it as an instrument to
promote self-interest, and to deny the obligatory quality of law. Thus he
argues that if justice consists in nothing but conformity to written laws
and national customs, and if everything is to be tested by the standard
of utility, then anyone who thinks it will be profitable to him will, if he
is able, disregard and violate the laws.
Cicero is also uninterested in the tension between the need to obey
positive law because it is a law and the ability to question the validity of a
law or a legal judgment in the light of more general and abstract prin-
ciples. He merely takes the simplistic view that there can be neither
objectivity in the law nor any obligation to obey it if law is not perfectly
just. In other words, Cicero denies not only what Socrates argues in the
Crito, but what Plato and Aristotle took for granted throughout “ that the
obligation to obey a given law rests at least in part on its being recognized
as law, that is, as the foundation of communal life rather than on its
substantive desirability. He argues, just as did Callicles, whom Plato
represents as the most radical challenger to the rule of law, that if men
are not by nature inclined to love their fellows and to be virtuous, then
there can be no distinction between right and wrong, just and unjust.
Whereas Plato tells us that even among robbers there is law, Cicero
says that “the many pestilential statutes which nations put in force . . .
no more deserve to be called laws than the rules a band of robbers
might pass in their assembly.” Plato™s analogy between the legislator
and the doctor, on the grounds that theoretical knowledge does not
suffice for prescribing what is wanted here and now, is put to a very
52 Law anchored to a cosmic order

different use by Cicero “ “For if ignorant and unskillful men have
prescribed deadly poisons instead of healing drugs, these cannot possibly
be called physicians™ prescriptions; neither in a nation can a statute of
any sort be called a law, even though the nation, in spite of its being a
ruinous regulation, has accepted it.”20 Thus Cicero declares that the
Titian or Apuleian or Livian Laws were not “really laws at all,” that true
law “can neither be repealed nor abrogated,”21 and claims to have proved
that a government “cannot be carried on without the strictest justice.”22
In Cicero™s conception of “natural law” there is no ambiguity whatso-
ever about the relation between law and justice because he makes no
distinction between them. And for the same reason, he makes no distinc-
tion between different kinds of order, but insists that there can be no
communal order unless it is a perfectly just order.
Cicero™s view of law as identical with justice necessarily implies that
law is an instrument of education. For if law and justice are one, whatever
in human life escapes from the rule of law must be unjust, and the aim of
law must be to bring the whole of human life under its aegis and to
shape it in accordance with the pattern of a good life. Thus the laws that
Cicero suggests for an ideal republic include even detailed prescriptions
for the rites of burial, the making of the grave, the monument, and the
tomb. But whereas the educational purpose that Plato and Aristotle also
attributed to law produced a serious tension in their general view of it, no
such tension exists for Cicero because he took so much simpler a view of
the relation between reason, law, and the contingent human world.
This simplicity does not, however, prevent Cicero from falling into a
massive self-contradiction; indeed, it leads him to it. When required by the
context, he abandons the view of law as a nonhuman pattern given to men
and makes assertions that completely undermine his view of law. When he
adopts this standpoint, Cicero argues in the manner of Callicles, but to a
different conclusion, that nature always gives dominion to the better for
the greater profit of the weak. Nature has provided, he says, “not only
that those men who are superior in virtue and in spirit should rule the
weaker, but also that the weaker should be willing to obey the stronger.”23
But he goes on to say that the proper analogy for the rule of kings,
emperors, magistrates, fathers, and victorious nations is only partly the
rule of the mind over the body. It is also partly like the rule of the mind
over the body™s lusts, or the master over his slaves, because it is coupled
with coercion and repression. And this view of the role of the ruler is


De Legibus II. v. 13. Ibid., II. v. 13“14.
20 21

De Republica II. xliv. 70. Ibid., I. xxxiv. 51.
22 23
Cicero 53
connected by Cicero with a sharp division of human nature between evil

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