The following is a slightly revised version of a lecture I have given on book I of Cicero’s Laws, for a course at University of Toronto’s School of Continuing Studies entitled “Cicero: On the Examined Life”. The perennial currency of Cicero’s ideas on Justice and Natural Law should be obvious to the readers of these pages…
The Laws, as I have said, was written by Cicero as a sequel to his Republic, in self-conscious imitation, that is, of Plato, whose own Laws Cicero believed to have the same relation to the master’s earlier work. The dialogue has as its interlocutors Cicero’s friend, advisor, and publisher Atticus, his brother Quintus, and Cicero himself, who is the main speaker.
The setting is Cicero’s estate at Arpinum, in a grove that contains the so-called “Marian oak”, which is the subject of the dialogue’s dramatic prelude. Atticus notices the oak and asks if it is the same one that Cicero had made famous in a now lost poem entitled Marius (a famous Roman general, statesman, and rival of the dictator Sulla). The point is then made by Quintus that no real tree can live as long as one planted, so to say, by a poet in the imagination of his readers. The whole discussion may seem at first to be a merely literary diversion, but of course, it is entirely germane to Cicero’s philosophical purpose and world-view.
Later, Cicero is encouraged by his interlocutors to write a history of Rome, a suggestion which he resists, and this reminds us of the broader question of the relation between the truths of history and poetry (or myth).
In his Poetics, Aristotle famously underlined the opposition between history, which treats of events which have happened only in a particular place and time, and myth, which treats of universal types of character and action, imaginary events that nonetheless occur recurrently, everywhere and always. Aristotle concludes that myth is therefore “somewhat more philosophical” than history, and, indeed, the Marian oak of Cicero’s poetic imagination, as opposed to any particular oak that happens to exist in nature, is also “more philosophical”, inasmuch as it is universal and eternal.
The Greek, and later Roman, ontological presupposition that reality and truth belong necessarily to the universal and ideal, as opposed to the concrete particular, will assert itself again and again in Cicero’s dialogue, most importantly in his insistence on the need to define Justice in universal terms, and in his beloved Stoic doctrine of an eternal and universal Natural Law of the entire cosmos, which relativizes all of the positive legal codes and constitutions of particular historical states.
Following the discussion of the Marian oak, Cicero in turn brings up the myths of the divinization of Romulus, and the rape of the nymph Orithyia (an allusion to Socrates’ discussion of the same myth in the Phaedrus), both of which were reputed by tradition to have occurred near the homes of Atticus. He mentions these because, as he says at i, 4, “certain persons display their ignorance by demanding in such a matter the kind of truthfulness expected of a witness in court rather than a poet”. And in the next paragraph, he reiterates that “different principles are to be followed in history and in poetry”.
It is clear that Cicero has Aristotle’s distinction in mind here, and that, like most educated ancients, while he refuses to believe that myths such as those of Romulus and Orithyia are records of actual, literal-historical events, they nonetheless symbolize truths and realities of a different, and probably superior kind. Immediately thereafter, Cicero’s interlocutors urge him to write a history, a suggestion which (as I’ve said) he resists, because he says it requires an extended period of leisure. The real reason, however, is the one which has been anticipated by this whole prelude: Cicero is temperamentally a philosopher and a poet, not an historian; he is interested in universal principles, not the particular accidents of some aggrandized “court record”.
For the same reason, he insists that the fit subject of the day’s discussion be the Law and Justice in general, rather than the “law of eaves and house-walls”, or any other local codes or ordinances about which lawyers endlessly and trivially argue. The prelude of the dialogue now completed, the three friends retire for that discussion to the shade beneath the poplars on the banks of the river Liris (another allusion to the Phaedrus, whose formal discussion of love commences with Socrates and Phaedrus removing to the banks of the river Ilissus beneath a plane tree).
Cicero begins by insisting that any discussion of the origin of Law and Justice must commence with an account of “what it is that unites men, and what natural fellowship there is among them”. It is from the universal and eternal nature of man himself (from the “deepest mysteries of philosophy”, that is), rather than from any written, historical constitution or code, that the concept of Law and Justice springs.
Here, of course, Cicero adumbrates that fundamental opposition that was the Stoics’ greatest bequest to Western civilization and thought: the opposition between the positive legal constitutions or moral codes of individual nations or cultures–codes that are necessarily limited by geography, ethnicity, and chronology, that vary from place to place and age to age, and even alter during the history of the same people–, and, on the other hand, the One, Absolute, Immutable, Universal and Eternal Law of Nature and the entire Cosmos, whose decrees are unvaryingly and universally true and binding upon people of every nation and era, because they are rooted in the unchanging and common Nature of both man and the universe. Needless to say, the Stoics’ doctrine of Natural Law underpinned Western civilization for the better part of two millennia, before the recent philosophical ascendancy of moral relativism, “situational ethics”, “deconstructionism”, multiculturalism, and other post-modernist orthodoxies.
At vi, 18, Cicero defines Natural Law as “the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite”. Cicero’s agricultural imagery is borrowed again from the Stoics, who taught that “seeds” of the eternal Universal Logos (the Supreme God or Nature who governs the cosmos) are “sown” or “implanted” directly into man himself. Those seeds or fragments of the Divine Reason are the substance of man’s rational mind or soul, and so Cicero goes on to say that “reason is Law…Law is intelligence”.
Law and morality are thus universal: common to the entire human race. What’s more, they are innate ideas—inborn moral instincts or natural predispositions (prolepseis, as the Greek Stoics called them) operative in the rational soul from the moment it is inseminated into the body by the Divine Logos (by God), and as such, they reveal to us the nature of right and wrong without any need for human instruction, interpretation, or written codes.
It is “the mind or reason of the intelligent man”, then, as Cicero says at vi, 19, that is “the standard by which” the justice or injustice of all historical codes or mores “are measured”. The decrees of this or that political body or this or that historical polity are merely transcripts of “the crowd’s definition of law”. Thus we must always judge the morality and legality of these decrees by the “Supreme Law which had its origin ages before any written law existed or any State had been established”.
Having taken the position that Law is aprioristic and that its origin is Divine, Cicero pauses at the beginning of chapter vii to gain the permission of Atticus to carry on (since Atticus is, at least nominally, a disciple of the Epicurean school of philosophy which, by popular consensus, is atheistic). Then, at vii, 22, he continues with the following syllogism: Man, he says, is the only living creature who has a share of reason. Reason is the divine (and therefore most excellent) element in man, and the most important “common possession of man and God”. Since man shares reason with God, men therefore also possess Law in common with Him (since both are bequests from God, and merely different names for the same thing.) Cicero concludes the argument at vii, 23:
But those who have reason in common must also have right reason in common. And since right reason is Law, we must know 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. If indeed they obey the same authorities and powers, this is true in a far greater degree; as a matter of fact they do obey this celestial system, the divine mind, and the God of transcendent power. Hence we must now conceive of this whole universe as one commonwealth of which both gods and men are members.
The “one commonwealth” is the Cosmopolis, as the early Stoics called it, the universal city of which all men are citizens. It is to this celestial city, the common patria from which all human souls first descended, rather than to the city of their merely accidental earthly birth, that men owe their primary allegiance. Once again, one can appreciate the nobility of this doctrine, which relegates our petty ethnic and tribal ancestries, identities, and differences to secondary status, and emphasizes the universal brotherhood of men. As Cicero says at vii, 24, our common descent from God transcends the blood relationships that define our merely earthly legal and political associations. The relationship of blood applies only to the perishable body, and not to the “divine gift of the soul” that “was generated in us by God”. By virtue of our spiritual filiation from God, we are indeed all sons of the same Father, all of the same high birth, and this too, as such later Stoics as Boethius would argue, dissolves all hereditary differences, and makes the slave as “noble” as the proudest aristocrat, prince, or king.
This is the leitmotif of Cicero’s political philosophy, as it was the most sublime and resonant teaching of the Stoics in general. Cicero puts an equally magnificent statement of the “cosmopolitan” ideal in the mouth of Laelius in the Republic III, xxii, 33:
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or difference laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment [i.e., under positive law].
The famous early Christian historian theologian Rudolph Bultmann has explained the relation between Logos, Law, and Stoic cosmopolitanism as follows:
The Logos is the basic principle of justice (to dikaion). It exists by nature (physei), not by enactment (thesei). The law of nature does not depend on human whims and fancies, but is the norm of society, on which all positive law must be based. Positive law is never actually identical with natural law, but it has to realize it progressively…Like positive law, the empirical State enjoys a relative validity…As a human system…, the empirical State represents a limitation of the universal commonwealth of nature (koinonia panton anthropon). The true constitution of the State (politeia) is the constitution of the universe. It is the city of God, whose law is the Logos. The constitution of all empirical States is on the one hand an approximation to the “cosmopolity”, on the other a denial of it. Fundamentally, man is “cosmopolitan”, a truth which he realizes when he lives according to nature. Thus all the accidental differences of history…are unimportant.
The cosmopolitan ideal of the Stoic grows out of the consciousness of being the subject of an internal Government of Universal Reason and the servant of its pan-vernacular Law. This makes him only incidentally the inhabitant of an earthly city, but “by nature” the citizen of a cosmic polity ruled by the same Reason whose edicts he obeys within.
As Seneca explains in his essay On Leisure,
…there are two commonwealths–the one, a vast and truly common state, which embraces alike gods and men, in which we look neither to this corner of earth nor to that, but measure the bounds of our citizenship by the path of the sun; the other, the one to which we have been assigned by the accident of birth. This will be the commonwealth of the Athenians or of the Carthaginians or of any other city that belongs, not to all, but to some particular race of men. Some yield service to both commonwealths at the same time–to the greater and to the lesser–some only to the lesser, some only to the greater…
..The laws [Zeno and Chrysippus] framed were not for one state only, but for the whole human race…
…Our school [i.e., the Stoics] refuses to allow the wise man to attach himself to any sort of state…
A similar idea would find its way into Augustinian theology as the spiritual City of God, a universal City with no racially or nationally determinate population, which exacts allegiance from every man regardless of the empirical state to which he belongs by accident of birth. Indeed, this City is in chronic conflict with a historical polity in metaphorical bondage to the old Hebraic Law. Notably, the City of God has no positive law promulgated in the concreteness of historical space or time, but is founded on an uncodified bond of Christian caritas that flows between the eternal Word and the soul of every citizen.
Indeed, since the human reason is a particle of the Divine Reason which God has sown at birth into the human person, there is, as Cicero says at vii, 25, “a likeness between man and God”. This, of course, is an old Platonic formula, now taken over by Stoicism, and the means by which the early Christian apologists, hanging it upon the language of Genesis, imported Platonic and Stoic ideas of man’s essential divinity into Christian theology from the very beginning of the Church. Man’s kinship with God, as Cicero says at ix, 26, is the reason for the bodily form given him by Nature, “for while she bent the other creatures down toward their food, she has made man erect, and has challenged him to look up toward heaven, as being, so to speak, akin to him, and his first home”.
Again, as a fragment of the Divine Reason, the human reason has a direct and immediate knowledge of God, which explains why among men (as Cicero says at viii, 25), “there is no race either so highly civilized or so savage as not to know that it must believe in a god, even if it does not know in what sort of god it ought to believe”. Knowledge of God is another universally inborn and pre-conscious datum, like our knowledge of right and wrong, and though there are differences in the mythologies, rituals, and creeds of the religions of various nations and tribes, these are all incidental and subordinate to the overwhelming analogies and commonalities that unite them. It is for this reason too that the ancient pagans refused to regard the various cults practised and gods worshiped throughout the western and eastern reaches of the Empire as in some sort of sectarian competition with one another, but saw them as merely regional expressions of a universal religion of the “One God of many names”, so that a Plutarch or an Apuleius could attend the mysteries of Isis and Osiris on Monday, of Demeter and Persephone on Tuesday, of Dionysus on Wednesday, of Mithras on Thursday, and of Cybele on Friday.
At x, 29, Cicero emphasizes again the universality and immutability of morality and law. Since we are “born for Justice”, the right is rooted immutably in Nature, and not malleable by the variant opinions of men. It is shared by all men insofar as they are the recipients of reason from a single divine Source, so that a common idea of justice and righteousness is “imprinted on all minds alike”. The same “troubles, joys, desires, and fears haunt the minds of all men without distinction”; every nation reveres the virtues of courtesy, kindness, and gratitude, while at the same time despising haughtiness, wickedness, and cruelty. “The whole human race”, says Cicero at xi, 32, “is bound together in unity” and in the “knowledge of the principles of right living”. It is only when “the sparks of fire…which Nature has kindled in us are extinguished” by bad habits that our native inclination to the good is overcome by vice.
This is another of the metaphors by which Stoics conventionally described the participation of the human reason in the Divine Logos, which, as the Fire that burns in the centre of the cosmos irradiates sparks of itself, just as the Logos is said to sow seeds of itself, into the soul of man. It is the duty of the rational intelligence to prevent these divine embers from being suffocated in the dense and lightless prison of the body—rather, to fan them back into flame, through contempt for the world and the flesh, contemplation of the eternal and invisible things of God, and remembrance of man’s heavenly and divine origins.
At xii, 33, Cicero then enunciates another common Stoic doctrine: that the life of justice and virtue is a life lived in agreement with Nature. We should remember that this is more than a trick of language: for the Stoics, Nature, as another designation for the Divine Logos, governs the cosmos according to the laws of justice and rational order. And the same Logos-Nature, a seed of which has been implanted in man as his reason, should govern the motions of the human person. When it does, man is said to live “in harmony with Nature”; he is said to be “kosmios” or “cosmic”, inasmuch as his eccentric passions and appetites are kept in check by his sovereign reason, just as the centrifugal energies of the planets (literally, the “wanderers”) are restrained within their proper orbits, and the warring elements and contraries are kept in their provinces, by the Divine Reason that governs the universe. The justice, then, that is inherent in the Nature of the external world (the macrocosm), is also immanent in the nature of man (the microcosm).
The immanence of Natural Justice amounts, in fact, to a kind of universal conscience, and as such, it insists on the pursuit of goodness for its own sake. Since it is natural and innate, righteousness must be pursued for no other end than itself: neither from fear of punishment or expectation of praise; not for the sake of increasing pleasure and decreasing pain (as the foolish Epicureans, slaves to their own bodies, teach); nor for profit or advancement.
All of these are secondary goods, and wholly external to any proper consideration or definition of virtue or vice. If it were fear of penalty and not Nature that preserved men from injustice, then the wicked could rightfully argue that the crimes they committed were perfectly innocent so long as they managed to get away with them. Conversely, if fear of punishment rather than an intrinsic abhorrence of evil kept men from a life of vice, such men ought to be regarded as merely prudent rather than virtuous. Similarly, as Cicero says at xiv, 41, “those of us who are not influenced by virtue itself to be good men, but by some consideration of utility and profit, are merely shrewd, not good”.
Extrinsic circumstances (whether one is punished or escapes punishment; whether one is benefited or disadvantaged) can hardly define acts as virtuous or vicious. In the same way, legislators have no claim to doing justice merely by enacting laws. As Cicero says impatiently at xv, 42, “the most foolish notion of all is the belief that everything is just which is found in the customs or laws of nations”.
That we have lost sight of this ancient truism is reflected in our own strangely idolatrous reverence for positive law. To translate Cicero’s admonition into the contemporary context, one cannot make same-sex “marriage”, or unrestricted abortion, or free universal health care, or the “right” not to be offended, or any other policy, morally right or just simply because a majority in the legislature pass it into law or encode it in a Charter. In a word, the mutability of positive law makes it self-annihilating. If today’s laws are regarded as infallible and beyond criticism, then yesterday’s laws, forbidding such practices as today’s have made licit and normative, must also have been infallible and beyond criticism. Conversely, if yesterday’s laws were wrong so might today’s.
Cicero, similarly, would have found ludicrous the contemporary multicultural nostrum that if a custom or practice is the norm for a given polity or ethnic group then it is “right and true for them” just as our norms are right and true for us; and that we therefore have no right to criticize. On the contrary, we must scrutinize our own laws and customs as rigorously as those of other nations. For “Justice is one”, as Cicero says at xv, 42; “it binds all human society, and it is based on one Law, which is right reason…Whoever knows not this Law, whether it has been recorded in writing anywhere or not, is without Justice”.
Heedless of an unwavering and absolute standard of Natural Justice, tyrants, princes, judges, or the common mob blithely pass laws or change them in accordance with their own advantage or ambition. But a law can no more make justice out of injustice than it can make good out of bad. “In fact”, as Cicero reiterates at xvi, 44, “we can perceive the difference between good laws and bad by referring them to no other standard than Nature”, and ought not to be “confused by the variety of men’s beliefs and disagreements”.
We needn’t say much more, since in the remainder of the dialogue, Cicero merely elaborates upon points he has already introduced. He concludes, however, with a peroration in praise of philosophy which is so eloquent and moving a summary of the most noble teachings of the Stoics that I can’t resist reading it in full. It begins at xxi, 58:
And philosophy is the richest, the most bounteous, and the most exalted gift of the immortal gods to humanity. For she alone has taught us, in addition to all other wisdom, that most difficult of all things—to know ourselves. This precept is so important and significant that the credit for it is given, not to any human being, but to the god of Delphi. For he who knows himself will realize, in the first place, that he has a divine element within him, and will think of his own inner nature as a kind of consecrated image of God; and so he will always act and think in a way worthy of so great a gift of the gods, and, when he has examined and thoroughly tested himself, he will understand how nobly equipped by Nature he entered life, and what manifold means he possesses for the attainment and acquisition of wisdom. For from the very first he began to form in his mind and spirit shadowy concepts, as it were, of all sorts, and when these have been illuminated under the guidance of wisdom, he perceives that he will be a good man, and for that very reason, happy.
For when the mind, having attained to a knowledge and perception of the virtues, has abandoned its subservience to the body and its indulgence of it, and has put down pleasure as if it were a taint of dishonor, has escaped from all fear of death or pain, has entered into a partnership of love with its own, recognizing as its own all who are joined to it by Nature; when it has taken up the worship of the gods and pure religion, has sharpened the vision both of the eye and of the mind so that it can choose the good and reject the opposite—a virtue which is called prudence because it foresees—then what greater degree of happiness can be described or imagined? And further, when it has examined the heavens, the earth, the seas, the nature of the universe and understands whence all these things come and whither they must return, when and how they are destined to perish, which part of them is mortal and transient and what is divine and eternal; and when it almost lays hold of the ruler and governor of the universe, and when it realizes that it is not shut in by narrow walls as a resident of some fixed spot, but is a citizen of the whole universe, as it were of a single city—then in the midst of this universal grandeur, and with such a view and comprehension of Nature, ye immortal gods, how well it will know itself, according to the precept of the Pythian Apollo! How will it scorn and despise and count as naught those things which the crowd calls splendid!