Pursuit of Happiness: Cicero and the Declaration of Independence, Part 2

CICERO WAS INVOKED BY THOMAS JEFFERSON in his letter to Richard Henry Lee* as one of the classical sources that fed or informed the Declaration of Independence as a whole, and we have focused upon the notion of "pursuit of happiness" in particular. In a prior posting we looked at Cicero's On Moral Ends.** In that posting it is clear that Cicero advanced a Platonic/Aristotelian/Stoic amalgam of eudaimonistic ethic, one based upon virtues and recognizing the existence of a natural law, an objective, non-conventional moral law that governed all men and that was discoverable by man by the use of right reason. In this posting, we shall focus on Cicero's dialogue On Laws or De Legibus and what it says about happiness from the perspective of the law.***

Cicero

What Cicero had written about personal happiness in his On Moral Ends he consistently applies to the happiness of the State in his On Laws. In his On Laws, however, he clearly links his jurisprudential theory to participation in the eternal law of God. Our experience of law in general, and the act of human legislation in particular, is a participation in a divine thing: a divine ordering of reason. Law is therefore not an invention of man, but a gift of the gods:

[L]aw was not brought up by human minds; that it is not some piece of legislation by popular assemblies; but it is something eternal which rules the entire universe through the wisdom of its commands and prohibitions. Therefore, they said, that first and final law is the mind of God who compels or forbids all things by reason. From that cause, the law which the gods have given to the human race has rightly been praised: it is the reason and mind of a wise being, suited to command and prohibition.

De leg., II.8.

The link between human law and divine law is reason, for reason is the life blood of the law and the quality or characteristic which is most divine in man.

And, therefore, since nothing is better than reason, and it is found both in humans and in God, reason forms the first bond between human and God. And those who share reason also share right reason; and since that is law, we humans must be considered to be closely allied to gods by law.

De leg., I.23.

Law, reason, nature, justice and divinity are all intertwined, and in Cicero's view, it would be wrong to separate law from reason, law from nature, law from justice, law from God, as it is apparent that all these come very close to being threads in one single rope:

Law is the highest reason, rooted in nature, which commands things that must be done and prohibits the opposite. When this same reason is secured and established [perfected] in the human mind, it is law. . . . .

[L]aw is a power of nature, it is the mind and reason of the prudent man, it distinguishes justice and injustice.

De leg., I.18, 19.

Human law, Cicero concludes, must be informed by this law above all laws, this eternal law which, for man, is found in his reasonable nature, and which informs him of all which is good and which is just, and allows him to distinguish that which is good and just from that which is evil and unjust:

Law, therefore, is the distinction between just and unjust things, produced in accordance with nature, the most ancient and first of all things, in accordance with which human laws are constructed which punish the wicked while defending and protecting the good.

De leg., II.13.

Indeed, it may be said that the motto of Cicero might be: "I will seek the roots of justice in nature," Repetam stirpem iuris a natura. De leg., I.20. Justice is, for Cicero, clearly not a matter of mere convention. At its foundation, justice is something that is found in the nature of things. Indeed, anyone who thinks that justice is merely conventional is nothing less than a madman:

[T]here is no justice at all if it is not by nature, and the justice set up on the basis of utility is uprooted by that same utility: if nature will not confirm justice, all virtues will be eliminated. . . . To think that these things are a matter of opinion, not fixed in nature is the mark of a madman.

De leg., I.42-45.

We ought perhaps to close with that classic paean of praise to the natural law found in the De republica of Cicero. Although the majority of that work had been lost, and so unavailable to Jefferson, and parts of it have only recently be re-discovered in the last century, one part of this work remained available, and that was the part of it containing the famous Dream of Scipio, where the need for eternal life was urged as importance for the maintenance of public order. In that text, however, was the classic encomium for the natural law. There can be no doubt that Jefferson would have been familiar with it:

For there is a true law: right reason. It is in conformity with nature, is diffused among all men, and is immutable and eternal; its orders summon to duty; its prohibitions turn away from offense . . . . To replace it with a contrary law is a sacrilege; failure to apply even one of its provisions is forbidden; no one can abrogate it entirely.

De rep., III.33.

To the extent Jefferson referenced Cicero's books of "public right," in his Declaration of Independence and in its phraseology "pursuit of happiness," it is indisputable that he envisioned happiness as something that is achieved by the following of the natural law, a law that participates in the eternal law of God, a law that is discovered by us, not made by us. A law that is learned through reason and which inerrantly leads us to true justice, to the good, to right. It is one acquired by virtue, and one which encompassed moral absolutes. Ultimately, this natural law was immutable, unchanging, constant, inabrogable.

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*See Pursuit of Happiness: The Declaration of Independence's Intent.
**See Pursuit of Happiness: Cicero and the Declaration of Independence, Part 1.
***We have devoted significant time in prior postings to analyzing Cicero's De Legibus as well as Cicero's De republica (On the Commonwealth or Republic)).

Pursuit of Happiness: Cicero and the Declaration of Independence, Part 1

CICERO ADDRESSES THE ISSUE OF HAPPINESS in various of his works, but in our endeavor to determine what Jefferson's notion of happiness was in the Declaration of Independence we shall focus on two of those works, namely Cicero's On Moral Ends or De finibus bonorum et malorum libri quinque and his De legibus or On Laws. Cicero, as we have noted in an earlier posting, was one of the sources that Jefferson expressly cited (along with Aristotle, Sidney, and Locke) as informing the common sense of the notions of political thinking that informed the Declaration.

Cicero's On Moral Ends is a Platonic form of dialogue that expressly addresses the issue of happiness. It is organized in five books each of which sets forth a theory of happiness or criticizes a theory of happiness. The first book sets forth the theory of Epicureanism (with Torquatus as its spokesman). The second book is a criticism of Epicureanism. The third book sets fort Stoicism, and that theory is advanced by the character of Cato. The fourth book then follows which criticizes that theory. The final and fifth book presents a theory of happiness (presumably Cicero's own) which is a blend of Plato/Aristotle. It is advanced by the character of Antiochus, and then briefly criticized by the character of Piso. It is this last moral theory, one which advances a classic notion of eudaimonistic ethics built on the notion of happiness which we shall stress in this posting.

Cicero

The entire structure of the Ciceronian notion of happiness is built upon conformity with nature. As stated in V.8, "[t]he whole of this inquiry into the ends or, sot to speak, the limits of good and evils must begin from that . . . as adapted and suited to nature (naturae esse aptum et accomodatum) and which is the earliest object of desire for its own sake." De fin., V.8.

Nature is what provides the inclinations in all creatures, including man, to pursue things that are in accordance with the nature of that creature. It is nature which defines the goods for man, and nature which defines their ordering. Thus:

Every living creature therefore finds its object of appetition in the thing suited to its nature. Thus arises the ends of goods, namely to live in accordance with nature (secundum naturam vivere) and in that condition which is the best and most suited to nature that is possible (naturamque accommodatissime). . . . This leads to the inference, that the ultimate good of man is life in accordance with nature (secundum naturam vivere), which we may interpret as meaning life in accordance with human nature (vivere ex hominis natura) developed to its full perfection and supplied with all its needs

De fin., V.9. Patently, Cicero is advancing through Antiochus a thick, well-developed notion of natural law. The natural dispositions of man will guide him surely to his end, to happiness, and these inclinations arise not imposed externally without regard to his good, but in fact ultimately stem from self-preservation, self-love:

The wisest authorities have therefore been right in finding the basis of the chief good in nature (summi boni a natura petiverunt), and in holding that this instinctive desire for things suited to our nature is innate in all men, because it is founded on that natural attraction which makes them love themselves.

De fin., V.11.

The inclinations of nature, at least in man, are not to be thought of as being the brute, bodily inclinations alone. Since man is composed of two parts, body and soul, and the rational soul is the more noble part, it follows that emphasis in inclinations ought to be given those inclinations of nature that deal with the rational soul. “Now it is manifest that man," Antiochus notes, "consists of body and mind (corpore animoque constare), although the parts of the mind hold the first place and those of the body second." De fin., V.12.

So we ought not to categorize man with the brute animals. Instead, one ought to focus upon the rational mind of man. "Turning now to the mind, this must not only exist, but also be of a certain character (cuiusdam modi debet esse)." So not all inclinations, whether of the body or rational soul, ought to be entertained. Rather, the inclinations have to be trained, molded, righted by these certain modes which we learn are the virtues. Thus, the mind must be a certain character, and "it must have all its parts intact and lack none of the virtues (et de virtutibus nulla desit)." De fin., V.12.

The upshot of a focus on nature, one that gives pride of place to the rational part of man, and yet one that realizes that there must be the formation of character through virtue is what gives the ultimate recipe for happiness in the Ciceronian construct.

The result will be that excellence of mind will be rated higher than excellence of body, and the volitional virtues of the mind will surpass the non-volitional; the former, indeed are the ‘virtues’ specially so called, and are far superior, in that they spring from reason, the most divine element in man.

De fin., V.13.

This is the Ciceronian eudaimonistic ethic that drives his moral theory of an individual man. We find that theory writ large in the analysis of man's social life in Cicero's work On Laws. It is to that work of "public right" to which we shall turn in our next blog posting, and to which without doubt Jefferson had in mind when he referred to Cicero as being a source of the common sense of the subject behind the Declaration of Happiness. A brief review of Cicero's work On Laws leaves no doubt that the classical sources for the Declaration of Independence were heavily weighted with notions of natural law, indeed, with the Platonic/Aristotelian/Stoic notion of the eternal law which informs the natural law. The law of nature and the law of nature's God referred to by Jefferson in the Declaration of Independence was the source of man's happiness, and was who defined the manner in which it ought to be pursued.

Natural Law in Cicero's De legibus, Part 6

IN BOOK TWO OF CICERO'S DE LEGIBUS, Atticus, Quintus, and Cicero move to an small island in the Fibrenus river about the size of a small palaestra, or sports arena. Before Cicero gets into the specifics of law, he recapitulates. Like a poet, who invokes the Muses, or, even he behind the Muses, invokes "from Jupiter the beginnings of song," so a jurist must invoke "Jupiter" as the source of law. The gods, then, are in charge of poetry and law. This is because law is, at its source, divine:

[L]aw was not brought up by human minds; that it is not some piece of legislation by popular assemblies; but it is something eternal which rules the entire universe through the wisdom of its commands and prohibitions. Therefore, they said, that first and final law is the mind of God who compels or forbids all things by reason. From that cause, the law which the gods have given to the human race has rightly been praised: it is the reason and mind of a wise being, suited to command and prohibition.

Legem neque hominum ingeniis excogitatam, nec scitum aliquod esse populorum, sed aeternum quiddam, quod universum mundum regeret imperandi prohibendique sapientia. Ita principem legem illam et ultimam mentem esse dicebant omnia ratione aut cogentis aut vetantis dei. Ex quo illa lex, quam di humano generi dederunt, recte est laudata: est enim ratio mensque sapientis ad iubendum et ad deterrendum idonea.

De leg., II.8. Law, then, unlike fire, was not stolen from the gods as if by some Promethean act of hubris. Law was a gift, part of the largess of the gods, part of what the gods intended for man. It is in fact something that men share with the gods. Men, to be sure, make their laws, as they did the Twelve Tables, the most basic foundation of Roman law. But there is a law more ancient, more noble, more fundamental than even the most sacred of all Roman laws.

Publius Horatius Cocles Defending the Sublicius Bridge: Following Natural Law

There is a law "coeval with the God who protects and steers the earth," aequalis illius caelum atque terras tuentis et regentis dei. De leg., II.9. This heavenly law is not written, but it has the force of law. It is this law that governed the courageous Horatius Cocles or that condemned Sextus Tarquinius's rape of Lucretia.

Reason existed, derived from nature, directing people to good conduct and way from crime; it did not begin to be a law only at the moment when it was written down, but when it came into being; and it came into being at the same time as the divine min. And therefore that true and original law, suitable for commands and prohibitions, is the right reason of Jupiter, the supreme god.

Erat enim ratio, profecta a rerum natura, et ad recte faciendum inpellens et a delicto avocans, quae non tum denique incipit lex esse quom scripta est, sed tum quom orta est. Orta autem est simul cum mente divina. Quam ob rem lex vera atque princeps, apta ad iubendum et ad vetandum, ratio est recta summi Iovis.

De leg., II.10. That law, which is divine in fons et origo, in its fount and origin, is also found in man, enfleshed as it were. It is found in semine, in seed, perhaps in all men. But it is found in full flower also in the mind of wise men, in mente sapientis.

Rape of Lucretia by Simon Vouet: Disobeying Natural Law

In fact the laws of men--the laws of human judges, human legislators, human princes--are not the preeminent example of law, but are law by participation, by "courtesy," by favor only: Quae sunt autem varie et ad tempus descriptae populis, favore magis quam re legum nomen tenent. ("The legislation that has been written down for nations in different ways and for particular occasions has the name of law more as a matter of courtesy than as a fact.") De leg., II.11. This is because the definition of law includes "choosing something just and right," in ipso nomine legis interpretando inesse vim et sententiam iusti et veri legendi. De leg., II.11. Therefore human laws are to have as their aim the common good, the safety of the state, the promotion of well-being and virtuous life of its citizens. Human laws are not laws at all if they are destructive or unjust to the people they intend to bind. Laws that damage and destroy are no more laws than rules among thieves. Quid quod multa perniciose, multa pestifere sciscuntur in populis, quae non magis legis nomen adtingunt, quam si latrones aliqua consensu suo sanxerint? Cicero asks rhetorically. De leg., II.12. They are no more to be called laws, than a wicked or ignorant doctor's poisons are to be called medicine. Cicero repeats:

Law, therefore, is the distinction between just and unjust things, produced in accordance with nature, the most ancient and first of all things, in accordance with which human laws are constructed which punish the wicked while defending and protecting the good.

Ergo est lex iustorum iniustorumque distinctio, ad illam antiquissimam et rerum omnium principem expressa naturam, ad quam leges hominum diriguntur, quae supplicio inprobos adficiunt, defendunt ac tuentur bonos.

De leg., II.13.

Given such a definition, neither laws of Titius and Appuleius nor the laws of Livius,* are to be considered laws at all. Human laws have to conform to the natural law, or they are not laws at all, and it matters not the motive of the legislator who trespasses the natural law.

From here, Cicero begins to particularize and enters into specific laws relating to Roman religious and civil life which will occupy the remainder of Book II and the greater part of Book III.

From this point, we shall politely beg leave from the dialogue of the Roman friends, and we shall leave the pleasant little island in the Fibrenus at a time shortly before the coming of Christ, to return to the 21st century to a time and a place where we eat of the evil fruit, an evil fruit that comes from having rejected the Ciceronian vision of natural law and its interaction with the positive law. We have traded the Ciceronian tradition for a positivism in law, a legal positivism which both Cicero and our Founding Fathers and everyone in between would have found a recipe for tyranny, arbitrary rule, and the inculcation of vice and injustice.

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*During their tribunates, Sextus Titius (ca. 99 B.C.) and his predecessor, Lucius Appuleius Saturninus (died ca. 100 B.C.), attempted to pass radical agrarian laws in the spirit of the Gracchi brothers which, in Cicero's view, apparently trespassed on property rights. Marcus Livius Drusus, tribune in 91 B.C., was of a similar radical reforming spirit.

Natural Law in Cicero's De legibus, Part 5

WE SAW THAT CICERO WAS CONVINCED that positive law is insufficient to govern man and that the inner discipline and sanction of the natural law is required. But Cicero reserves his greatest excoriation for those who are foolish enough to think that the positive law is the only source of right and wrong. If you would have argued that law is nothing other than convention to Cicero as, for example, John Austin or Jeremy Bentham or H. L. A. Hart may have argued, Cicero would have laughed in your face and indeed called you nothing short of stupid or mad, stultified and demented:

The Three Stooges of the Law per Cicero: Bentham, Austin, and Hart

The most stupid thing of all . . . is to consider all things just which have been ratified by a people's institutions or laws . . . . There is only one justice, which constitutes the bond among humans, and which was established by the one law, which is right reason in commands and prohibitions. . . . And if justice is obedience to the written laws and institutions of a people, and if (as these same people say) everything is to be measured by utility, then whoever thinks that it will be advantageous to him will neglect the laws and will break them if he can. The result is that there is no justice at all if it is not by nature, and the justice set up on the basis of utility is uprooted by that same utility: if nature will not confirm justice, all virtues will be eliminated. . . . To think that these things are a matter of opinion, not fixed in nature is the mark of a madman.

Iam vero illud stultissimum, existimare omnia iusta esse quae scita sint in populorum institutis aut legibus. . . . Est enim unum ius quo devincta est hominum societas et quod lex constituit una, quae lex est recta ratio imperandi atque prohibendi. . . . Quodsi iustitia est obtemperatio scriptis legibus institutisque populorum, et si, ut eidem dicunt, utilitate omnia metienda sunt, negleget leges easque perrumpet, si poterit, is qui sibi eam rem fructuosam putabit fore. Ita fit ut nulla sit omnino iustitia, si neque natura est et ea quae propter utilitatem constituitur utilitate alia conuellitur. Atqui si natura confirmatura ius non erit, virtutes omnes tollantur. . . . .Haec autem in opinione existimare, non in natura posita, dementis est.

De leg., I.42-43, 45. If all is convention, if all is determined by utility, then the law itself will be destroyed by convention or utility. There would be no grounds for liberality, for love of country, for piety, for any selfless acts or acts directed toward the common good. All these acts "arise because we are inclined to love other humans (propensi sumus ad diligendos homines), and that inclination, that diligence or love, is the foundation of justice (fundamentum iuris est)." De leg., I.43.

Justice arises from nature, and not from convention. Therefore, Cicero insists, the decisions of judges, the will of the majority, or the decree of the prince cannot define justice: a judge, a prince, the people cannot make it just to commit adultery, highway robbery, or forge wills. No, nature is above positive law. Indeed, nature is what serves as positive law's standard and judge: "But in fact we can divide good laws from bad laws by no other standard than that of nature." Atqui nos legem bonam a mala nulla alia nisi naturae norma diuidere possumus. De leg., I.44.

Man is no exception to the rule. Just like a horse or a tree is judged with reference to its nature, so man is judged with reference to his nature. We do not argue that a lame horse does not correspond to what a horse ought to be, or that a tree that has tree rot or blight is not living in accord with its nature. Nothing would suggest that man operates under a different rule. "For just as true and false, logical and illogical are judged in themselves and not be external considerations, so to a constant and consistent manner of life, which is virtue, and similarly inconstancy, which is vice, will be judged by their own nature." De leg., I.45. Man's character is judged in reference to virtue and vice, and virtue and vice, including justice and injustice, are judged in reference to nature. To suggest that man is not to be judged by nature, but by opinion, is, ultimately to propose that "men would be happy by opinion--and nothing dumber than that could possibly be said," Nam ni ita esset, beati quoque opinione essemus, quo quid dici potest stultius? De leg., I.46.

Justice, like all the virtues, "seeks no reward and no prize, and thus it is sought for itself," item iustitia nihil expetit praemii, nihil pretii. A man must not apprise justice by the profit in it, or whether it is in his interest, or if there be reward in it. If not cultivated for itself, then justice is not justice. "For that is the most unjust thing of all," id enim iniustissimum ipsum est, says Cicero, iustitiae mercedem quaerere, "to seek a reward for justice." De leg., I.49.

Cicero ends his first book of the De legibus by discussing the supreme good, the finis boni. It is, he admits, a matter of controversy among all the philosophers and their different schools. Cicero's brother Quintus is the one who summarizes the Ciceronian teaching and the Academic/Peripatetic (Platonic/Aristotelian) position and the Stoic position:

But certainly it is the case that it is the highest good either [according to the Platonic/Aristotelian schools] to live in accordance with nature, that is, to enjoy a moderate life equipped with virtue, or [according to the Stoics] to follow nature and live in accordance with what can be called its law, that is insofar as possible to do everything to accomplish the demands of nature, who wishes us to live in accordance with virtue as if it were a law.

De leg., I.56. The Socratic/Platonic/Aristotelian school stresses virtue, whereas the Stoic school stresses law. Which emphasis is left for another day among the three participants of the dialogue.

From the discussion of law in its most fundamental form, the parties now turn to how life ought to be lived, and here the focus is on the philosophical life. Wisdom ought to be loved, and the law ought to be learned, for the law is what corrects for vice and encourages virtue. For this, we need to know ourselves as the Delphi oracle declared. A man who searches inward will see in him the spark of divinity in him, a divinum ingeniumque in se, which sets him apart from the cosmos. He will recognize that it is a "great gift of the gods," tantoque munere deorum that he has this quality. This quality will be precious to him, and he will do all he can to develop it. He will also recognize it in those which share his nature. And the peroration of Cicero is long but magnificent, as he sings the praises of philosophy as tutor of all that is good in man:

And when he has studied the heaven, lands, seas, and the nature of all things, and has seen where they come from and where they are going and when and how they will perish, what in them is mortal and bound to die, what is divine and eternal; and when he has (so to speak) got a grip on the God who guides and rules these things (et regentem deum paene prenderit) and has recognized that he is not bound by human walls as the citizen of one particular spot but a citizen of the whole world as if it were a single city (sed civem totius mundi quasi unius urbis agnoverit)--then in this perception and understanding of nature, by the immortal gods, how he will know himself, as Pythian Apollo commands, how he will scorn an despise and think as nothing all those things which are commonly called magnificent! And he will fortify all these things as if by a fence through the method of argument, the knowledge of judging true and false, the science of understanding logical consequences and contradictions. And when he realizes that he is born for civil society, he will realize that he must use not just that refined type of argument but also a more expansive style of speaking, through which to guide peoples, to establish laws, to chastise the wicked and protect the good, to praise famous men and to issue instructions for safety and glory suited to persuading his fellow citizens, to exhort people to honor, to call them back from crime, to be able to comfort the afflicted, to enshrine in eternal memorials the deeds and opinions of brave and wise men together with the disgrace of the wicked. And all these great an numerous things which are recognized as present in man by those who wish to know themselves, the parent and teacher of them all is philosophy.

De leg., I.60-62.

In fact, later in his dialogue, in Book II, Cicero repeats this notion. It is the divine providence that is apparent in the cosmos, the reason by which all things--the course of the stars and planets, the seasons, the growth of plants and animals--are ordered that is the "proem to the law," legis prooemium, the prelude or precursor to human law.

What is more true than that no one ought to be so stupid and arrogant as to think that he has reason and a mind but not to believe the same of the heavens and the universe? Or to think that things which are barely understood by the greatest intelligence and reason are moved without reason? Anyone who is not compelled to be grateful by the order of the stars, the alternations of day and night, the balance of the seasons, the crops which grow for our enjoyment--why is it proper for someone like that to be counted human at all? And since all things endowed with reason are superior to those which lack reason, and since it is wrong to say that anything is superior to the natural universe, it must be admitted that the universe has reason. Who could deny that such opinions are useful when he understands how many things are secured by oaths, how conducive to safety are the religious guarantees of treaties, how many people have been kept from crime by the fear of punishment, how holy the bond of citizens one with another is, with the presence of the immortal gods as judges or as witnesses? This is the proem to the law, to use Plato's term.

De leg., II.16.*

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*Plato, Laws 4:722d (νόμους δὲ ἄρτι μοι δοκοῦμεν λέγειν ἄρχεσθαι, τὰ δ᾽ ἔμπροσθεν ἦν πάντα ἡμῖν προοίμια νόμων.) "Yet it is only recently that we have begun, as it seems, to utter laws, and what went before was all simply preludes (prooimia) to laws."

Natural Law in Cicero's De legibus, Part 4

POSITIVE LAW ALONE IS TOO SLIM A CHORD with which to discipline man. The positive law needs the moral law as much as the moral law needs the positive law. It is true, the natural moral law has its own form of discipline and sanction, its own punishments, and does not need the positive law in that sense. Typically, it is not in human courts that such penalty for violation of the natural law is paid, since such courts "used not to exist anywhere and now do not exist in many places, and where they do, they are often corrupt." (non tam iudiciis—quae quondam nusquam erant, hodie multifariam nulla sunt, ubi sunt tamen, persaepe falsa sunt). De leg., I.40. The judgment and the sanction is elsewhere: it is by being "chased and hounded" by the Furies, but not the Furies of legend; rather, these Furies are the "pains of conscience and the tortures of deceit," angore conscientiae fraudisque cruciatu. De leg., I.40.

The tradition of being chased or hounded by conscience is old, as old perhaps as man. It raises its head early in the Book of Genesis. It is a recurrent them of literature, both ancient and modern, and it is an experience most of us have felt at one time or another. Edgar Allen Poe's unnamed narrator in his short story "The Tell Tale Heart" or Dostoevsky's character Raskolnikov in Crime and Punishment are, of course, two classic applications of the principle in regard to the crime of murder in Western literature. It survives in Denis Diderot, who, in his "Entretien d'un pere avec ses enfants; ou, du danger de se mettre au-dessus des lois" ("Conversation of a Father with His Children; or, the Danger of Setting Oneself above the Law") relates this conversation between a hatter whose sick wife has died after he cared for her for eighteen years and is left penniless, and who, against the positive law, intends to keep his dead wife's dowry and run off to Geneva where the French writs don't run, instead of returning it to her relatives. Diderot suggests that the money ought to be returned in accordance to law:

The hatter replied brusquely:
"No, Monsieur, I shall go away, I shall go to Geneva."
"And you expect to leave your remorse behind?"
"I don't know; but I shall go to Geneva."
"Go wherever you choose, conscience will infallibly follow you."

Le chapelier répliqua brusquement:
“ Non, monsieur, je m'en irai à Genève.
“ - Et tu crois que tu laisseras le remords ici?
“ - Je ne sais, mais j'irai à Genève.
“ - Va où tu voudras, tu y trouveras ta conscience.”*

Did the hatter avoid his conscience? The main characters in Poe's "The Tell Tale Heart" and Dostoevsky's Crime and Punishment do not. If the hatter did, did he also lose his humanity?

The positive law alone cannot curb the wicked or even the wicked in the good: even the first-time criminal will deny the crime, invent an excuse, avoid being caught, evade its jurisdiction. The positive law is too superficial a method to excise or discipline and sanction the criminal heart from the wicked.

What will a person do in the dark if he is afraid only of witnesses and judges?
What will he do in some deserted place if he encounters someone from whom he can steal a lot of gold, someone weak and alone?

Nam quid faciet is homo in tenebris qui nihil timet nisi testem et iudicem?
Quid in deserto quo loco nactus, quem multo auro spoliare possit, imbecillum atque solum?

De leg.,I.41. The Ciceronian theme is classic, and it is put forward in myriad ways and settings: in Plato's ring of Gyges which made its wearer invisible at will (Republic, 2.359a–2.360d) in the murder of the Mandarin by will in Honoré de Balzac's Le Père Goriot, in H. G. Wells's Invisible Man, in J. R. R. Tolkien's Ring of Gollum. How many, without the buttress of moral education and habit, without the pressures of social mores, without the promptings of conscience have the fortitude to be moral if there were absolutely no sanction attached to being immoral?

Only the just man has any chance at all. The man who has not learned to be naturally just, but who seeks his own self-interest, and does not think of others' interests, and is disciplined only by the positive law law, will have no inner law to stop him if he thinks he can get away with it and others will not hear of it. He will use the Ring of Gyges to commit adultery with his neighbor's wife. He will kill the Mandarin to get his riches. He will use his invisibility to spread a Reign of Terror. He will use the golden ring to assume absolute power. Without the natural law, the conscience, and their outward bulwark, their city wall, as it were--virtue--there is no way to stop the three-fold libido: the libido sciendi, the libido sentiendi ,and the libido dominandi.

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*Denis Diderot, "Entretien d'un pere avec ses enfants; ou, du danger de se mettre au-dessus des lois," translated by P N. Furbank, sub titulo "Conversation of a Father with His Children; or, the Danger of Setting Oneself above the Law," This Is Not a Story and Other Stories (Columbia: University of Missouri Press, 1991).

Natural Law in Cicero's De legibus, Part 3

CICERO ADDRESSES THE PERMANENT ARGUMENT against the existence of the natural law. It seems to follow the natural law as if it were its shadow, or its ape. If the natural law is so natural, then why do not all cultures and peoples follow it?

But the variety of opinions and the discord of humans disturb us; and because we do not have the same problems with our senses, we consider them to be certain by nature, but we say that because moral qualities seem different to different people and not even the same person always sees them the same way, they must be false.

De leg., I.47.

Senses, however, inform the mind in a manner that cannot be easily corrupted. On the other hand, reason and its ability to comprehend or grasp the natural law can. It is "distorted habits," "false opinions," "weak minds," "mental errors," our proneness to be "ensnared by pleasure" or "enticed to bad conduct" by a seeming good that do so. De leg.,I.31-32.

All sorts of traps are directed against our minds, either by those whom I just listed [a parent, a nurse, a teacher, a poet, or the stage], who take them when they are tender and inexperienced and corrupt and bend them as they wish, or by that which lurks entwined deep in all our senses, namely pleasure, which imitates the good but is the mother of all evils. Those who are corrupted by her blandishments do not perceive sufficiently well what things are good by nature, because these things lack the sweet itch of pleasure.

De leg., I.47.

Cicero

Cast these aberrations aside which can easily be explained, and it is apparent that men share in a nature. Without these impediments, "no one would be so like himself as all people would be like all others," sui nemo ipse tam similis esset quam omnes sunt omnium. De leg., I.29. One can define a human in a manner that encompasses all men, which itself proves that the dissimilarities are accidental, not substantive. That one distinguishing feature is reason, ratio, "the one thing by which we stand above the beasts," ratio, qua una praestamus belvis. De leg.,I.30. There are, in addition, other similarities: all men learn through their senses, abstract reality that way, and form concepts or ideas which are identical, albeit expressed in different languages. Even in their perversity, men show likeness. But if in perversity they show likeness, so also in their notions of the good:

What nation is there that does not cherish affability, generosity, a grateful mind and one that remembers good deeds? What nation does not scorn and hate people who are proud, or evildoers, or cruel, or ungrateful?

Quae autem natio non comitatem, non benignitatem, non gratum animum et beneficii memorem diligit? Quae superbos, quae maleficos, quae crudeles, quae ingratos non aspernatur, non odit?

De leg., I.32. "There is no person of any nation who cannot reach virtue with the aid of a guide." Nec est quisquam gentis ullius, qui ducem naturam nactus ad uirtutem peruenire non possit. De leg., I.30.

That guide is justice, "the sparks given by nature," tamquam igniculi . . . natura dati. "And I want it to be understood in this whole discussion that the justice of which I speak is natural." Atque hoc [ius] in omni hac disputatione sic intellegi volo, quom dicam naturam esse. De leg.,I.33.

But if human judgment corresponded to what is true by nature and men though nothing human alien to them (to use the poet's [Terence] phrase), then justice would be cultivated by all.

Quodsi, quo modo suntt natura, sic iudicio homines 'humani, ut ait poeta, nihil a se alienum putarent', coleretur ius aeque ab omnibus.

De leg.,I.33. The chain between nature and justice cannot be gainsaid: from nature to reason; from reason to right reason; from right reason to law; from law to justice. This chain exists in every man and in all men. Justice is therefore based upon nature.

The fact that justice is natural means that it binds all men, and all men equally. Accordingly, the virtuous man in any society will be just, and he will offer justice to his fellow, so that "he loves himself no more than the other," non in illo sese plus quam alterum diligat. De leg., I.34. Friendship and benevolence is the more natural state than hatred and selfishness. The "selfish gene" of Richard Dawkins is a corruption; by nature, man, by nature reasonable, is made to be just according to Cicero.

These are the foundational principles of all law. Cicero sits on the shoulders of giants before him,* and he gratefully recognizes his dependence upon them. He is in good company, and seeks to conserve or to preserve the patrimony of natural justice. But he excoriates and lambastes those who--like the Epicureans with their utilitarian calculus or those of the new Academy where skepticism and relativism reins supreme--teach and live in a manner that vitiates the natural law:

Those, however, who indulge themselves and are enslaved to their bodies, who judge everything that is to be sought or avoided in life by pleasures and pains--even if what they say is true (and there is no need for arguments about it here), we tell them to talk in their gardens, and we ask them to stand away for a little while from all bonds of civic society, of which they know nothing and have never wanted to know anything. . . .

De leg., I.39.

(continued)

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*"All these people, whether they have stayed in the Old Academy with Speusippus, Xenocrates, and Polemo, or have followed Aristotle and Theophrastus, who agree with them in substance but use a slightly different type of argument, or those who, like Zeno, have changed the terminology without changing the substance, or even have followed the difficult and demanding system of Aristo, . . . all these people agree with what I have said." De leg., I.38.

Natural Law in Cicero's De legibus, Part 2

CICERO FINDS THE ULTIMATE SOURCE OF LAW in a divine, not human, source. It is for this reason that law, in its most fundamental sense, is immutable. Cicero builds his philosophical view on a premise of a divine kinship between man and God, and in a divine providence. He asks his friend Atticus, who is apparently a follower of Epicurus, to grant him the assumption that "all nature is ruled by the force or nature or reason or power or mind or will (nutu, ratione, potestate, mente, numine)--or whatever other word there is that will indicate more plainly what I mean--of the immortal gods." De leg.I.21. An assumption his friend willingly complies giving him. There is, then, a supposition by Cicero of some sort of order, specifically a sort of providential and relational order, one that comes from outside of the natural order itself but in which we participate, that Cicero gets his friend to concede. This Ciceronian assumption is, of course, contrary to the teachings of Epicurus, who insisted that the gods are unconcerned with the goings on of men.

Not only is there communication between the world of divinity and the world of humanity and the cosmos as a whole. For Cicero, between the world of men and the world of the divine there is a communion, a link of likeness. For Cicero, the link between the gods and men is their joint sharing of reason.

And, therefore, since nothing is better than reason, and it is found both in humans and in God, reason forms the first bond between human and God. And those who share reason also share right reason; and since that is law, we humans must be considered to be closely allied to gods by law. Furthermore, those who share law also share the procedures of justice . . . .

Est igitur, quoniam nihil est ratione melius, eaque est et in homine et in deo, prima homini cum deo rationis societas. Inter quos autem ratio, inter eosdem etiam recta ratio et communis est: quae cum sit lex, lege quoque consociati homines cum dis putandi sumus. Inter quos porro est communio legis, inter eos communio iuris est.

De leg.,I.23. Between God and man, there is a communion of reason, of virtue, of law, and of justice. We are, in fact, within a single city or state, in political--nay, familial association as it were, with the divine order. It is a marvelous fact that of all nature, "men should be part of the family and race of gods," homines deorum agnatione et gente teneantur. De leg.,I.23. This part of man which he shares with the divine realm is found in his soul. He shares his material nature with the world at large, and his physical nature in particular does he share with perishable, mutable world of the brute animals. But man's soul is spiritual. By a divine gift, a munus divinum, man participates in the divine in an excellent way, having a kinship of sorts with the incorruptible, immortal realm of the immortal gods. Man is "sown throughout the earth," sparsum in terras, as so many seeds. De Leg., I.24.

William Blake's Ancient of Days

According to Estrada,* this notion of Cicero is a blending of the Stoic notion of the logos spermatikos, the divine seed, and the notion of creation in Plato's Timaeus (41c):

Not disregarding the intense doctrinal and linguistic resonances of the cosmic theological conception of the Stoa and, definitely on the teachings of this school about the "logos spermatikos" spread over everything existing, it is impossible not to pay attention also the presence of features typical of Platonic elaboration on this issue . . . In this connection, the remarkable influence of [Plato's] Timaeus is of particular interest, as revealed by these Ciceronian theses in De lebigus, and the speculative drift that this contributes with Cicero's elaboration beyond the strict immanence and corporalism of the first Stoa.

Estrada, 16-17.

This kinship between God and man shows itself in a universal tendency in man, even in a sort of Platonic recollection or anamnesis, to want relationship with the spiritual world, to worship God, though it be in various forms and through a glass darkly:

And thus out of so many species there is no animal besides the human being that has any knowledge of God, and among humans themselves there is no tribe, either civilized or savage, which does not know that it must recognize a God, even though it may not know what kind of God it should recognize.

Itaque ex tot generibus nullum est animal praeter hominem quod habeat notitiam aliquam dei, ipsisque in hominibus nulla gens est neque tam mansueta neque tam fera, quae non, etiamsi ignoret qualem haberi deum deceat, tamen habendum sciat.

De leg.,I.24. Moreover, man shares virtue with the gods. It is their joint venture in perfection that also is indicative of their shared dignity:

Furthremore, virtue is the same in human and God, and it is found in nother species besides; and virtue is nothing else than nature perfected and taken to it highest level.

Iam vero virtus eadem in homine ac deo est, neque alio ullo in genere praeterea.Est autem virtus nihil aliud, nisi perfecta et ad summum perducta natura: est igitur homini cum deo similitudo.

De leg., I.25. The world of the gods communicates with the world of men, and indeed is manifest in the provident care with which God seems to have provided for man. There is a fit between the world and man's needs and wants, and goods the earth provides, and this fit is evidentiary of providence and proof that the world is not something random, but, rather, has an end or purpose. Moreover, God's solicitude for man, and our kinship with the divine realm, is evidenced by the fact that man walks upright.

For although she made all other animate creatures face the earth for grazing, she made the human alone upright and rouse him to look on the sky, as if on his family and his former home; and she shaped the appearance of his face so as to mold in it the character hidden within.

Nam cum ceteras animantes abiecisset ad pastum, solum hominem erexit et ad caeli quasi cognationis domiciliique pristini conspectum excitauit, tum speciem ita formauit oris, ut in ea penitus reconditos mores effingeret.

De leg., I.26. Atticus comments that this basis seems far removed from questions of human justice and human law. Yet Cicero assures Atticus of its fundamental importance:

But of all things which are a subject of philosophical debate, there is nothing more worthwhile than clearly to understand that we are born for justice, and that justice is established not by opinion but by nature.

Sed omnium quae in hominum doctorum disputatione uersantur, nihil est profecto praestabilius, quam plane intellegi, nos ad iustitiam esse natos, neque opinione sed natura constitutum esse ius.

De leg., I.28. Man was born for justice. Justice is established by nature, not by opinion. These are the fundamental truths of a natural law jurisprudence. Anyone that suggests that something other than justice ought to occupy man is a liar. Anyone who suggests that justice is nothing but convention utters falsehood.

(continued)
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*Plato's Timaeus 41c:

Now so much of them as it is proper to designate 'immortal,' the part we call divine which rules supreme in those who are fain to follow justice always and yourselves, that part I will deliver unto you when I have sown it and given it origin.

καὶ καθ᾽ ὅσον μὲν αὐτῶν ἀθανάτοις ὁμώνυμον εἶναι προσήκει, θεῖον λεγόμενον ἡγεμονοῦν τε ἐν αὐτοῖς τῶν ἀεὶ δίκῃ καὶ ὑμῖν ἐθελόντων ἕπεσθαι, σπείρας καὶ ὑπαρξάμενος.

Natural Law in Cicero's De legibus, Part 1

THE DE LEGIBUS (On the Laws) of Cicero is, beside his De republica, another classic text of the Ciceronian adaptation of the Greek doctrine of the natural law as it was passed down as if a family heirloom from Socrates, to Plato, to Aristotle, to the Stoics, and finally to be bequeathed to Rome and to the West through the largess of one of Rome's great lawyers. In the fullness of time it was co-opted and refined by St. Paul, who, like Philo the Jew, knew a sound philosophy when he saw one. And so it was engrafted into the Word of God, or perhaps the Word of God was engrafted to it. It is hard to tell since everything so beautifully intertwines, as if grace and nature, Christ and the philosophers' doctrines of natural law, were storybook lovers destined to fall into each other's arms.

Again in the De legibus we have the link in between divine Reason, the cosmos, and human nature as the underpinning or central chord of the human moral and legal order. In his De Legibus, a work that unfortunately was never completed, and those parts which were completed have not come to us complete, Cicero places us in a dialog between himself, his brother Quintus, and their friend Titus Pomponius Atticus. (Atticus was a real, not fictional character. He was in fact a close friend of Cicero, and the one whom he devoted his treatise on friendship De Amicitia.) Like Cicero's De republica, this dialog occurs at an estate, but this one is Cicero's own estate at Arpinum. The subject of the discussion among the characters is, as the title suggests, law, its nature, and the epistemological and methodological aspects of it. Book I sets the theoretical or philosophical underpinnings of law, while Books II and III enflesh those principles within the context of Roman law and practice. Cicero's theories of law are clearly based upon the Platonic, Aristotelian, and Stoic theory that underlay his earlier work, the De republica (On the Commonwealth). With our knowledge of history, there is a bit of wistfulness in the work, as less than a decade after the fictional dialog was written circa 51 B.C., Caesar crossed the Rubicon, initiating the civil war that ended the Roman Republic and eventually led to Caesar's dictatorship, his assassination, and the rise of the Roman Empire.

Cicero

As James Zetzel states in his introduction to the On the Laws, Book I of Cicero's De legibus "lent itself easily to Christian adaptation," and so influenced Christian theorists of the natural moral law reaching forward to both Thomas Aquinas and Hugo Grotius and beyond.* Books II and III, on the other hand, because of their particularized legal nature, influenced lawyers and jurists by promoting an analytical notion of legal analysis, as distinguished from a case-by-case or casuistic notion of legal analysis. Cicero sought to rationalize the system of Roman law, to find principles of law among the disparate parts, and thereby reconcile them into a greater whole. Without doubt, "the simple and relatively clear organization of his model code [in Books II and III] played a role," says Zetzel, "in the formation of classical Roman law and thus in European legal thinking since his time." De leg., xxiv.

Book I begins with a discussion about legend, and the difference between legend and history, all inspired by the Mariana quercus, the "Oak of Marius," an oak tree that legend tied to the great general and seven-time consul who haled from the region of Arpinium, Gaius Marius (157 B.C. - 86 B.C.). Cicero--both Atticus and Quintus suggest--ought to write a history of Rome, since good works are lacking in this area. But Cicero is still too occupied by the law, and by his duties to his clients, to undertake such a task, as it would require leisure, a leisure he does not have. But the law is something of which Cicero can speak, and so they friends decide to hear what Cicero has to say about the law. But they are not interested in the particulars of civil law, the law of "water running off roofs, or about shared walls." De leg.,I.14.** They want Cicero to discuss the law more deeply, to find its source and its standards, the font which gives all law life and the channels which give it direction. And so Cicero must go beyond the praetor's edict or the ancient Twelve Tables of the Roman law, beyond Roman foundations and Roman positive law and custom, to the very nature of law, the philosophical underpinnings of law, law's origins, iuris principia, the law before human law steps in to particularize. So Cicero describes from whence the discussion must start:

[I]n this discussion we must embrace the whole subject of universal justice and law . . . . We must explain the nature of law, and that needs to be looked for in human nature . . . .

[I]n hac disputatione tota causa est universi iuris ac legum . . . . Natura enim iuris explicanda nobis est, eaque ab hominis repetenda natura . . . .

De leg.,I.17.

What then is "law" at its most fundamental? Cicero draws on the opening lines of the Stoic philosopher Chrysippus's treatise On Law for his most basic definition on the command and prohibitory aspect of law:

[Therefore] [p]hilosophers have taken their starting point from law; and they are probably right to do so if, as these same people define it, law is the highest reason, rooted in nature, which commands things that must be done and prohibits the opposite. When this same reason is secured and established [perfected] in the human mind, it is law.

Igitur doctissimis viris proficisci placuit a lege, haud scio an recte, si modo, ut idem definiunt, lex est ratio summa, insita in natura, quae iubet ea quae facienda sunt, prohibetque contraria. Eadem ratio, cum est in hominis mente confirmata et perfecta, lex est.

De leg.,I.18.

The Chrysippian reference is classic, and perhaps it warrants quoting the original Greek text, as best as we know it, which Cicero had in mind when he wrote his dialogue:

Law is king of all things human and divine. Law must preside over what is honourable and base, as ruler and as guide, and thus be the standard of right and wrong, prescribing to animals whose nature is political what they should do, and prohibiting them from what they should not do.

ὁ νόμος πάντων ἐστί βασιλεύς θείων τε καὶ άνθρωπίνων πραγμάτων: δεῖ δὲ αυτόν προστάτην τε είναι τῶν καλών καὶ τῶν αισχρών καὶ άρχοντα καὶ ἡγεμόνα, καὶ κατά τοῦτο κανόνα τε είναι δικαίων καὶ αδίκων καὶ τῶν φύσει πολιτικών ζώων προστακτικον μὲν ὧν ποιητέον, απαγορευτικον δὲ ὧν οὐ ποιητέον.

Chrysippus, On Law.*** Cicero explores the basic notion of law further, since he is not satisfied with the command theory of law. While that theory may be superficially accepted, and common, and not in any manner wrong, it is superficial because it avoids the more important kernel, the germ, the real life-giving impetus behind law. Cicero therefore goes from this definition to the etymology of the Greek word for law, νόμος (nomos), and the Latin word for law, lex. Nomos, Cicero explains, is derived from the Greek word νέμω, nemō, to distribute or parcel out. The Greek concept of law, therefore, relates to the fundamental norm of justice: suum cuique tribuendo, giving each man his due. On the other hand, the Latin term for law is derived from lego, to choose, and therefore connotes the sense of selecting, choosing, deciding: a legendo. The Greeks emphasize equity, the Latins emphasize choice, and the law has both attributes. Nam ut illi aequitatis, sic nos delectus vim in lege ponimus, et proprium tamen utrumque legis est. De leg.,I.19. These features of law, implied in the words' very etymology, suggest that justice, right, is what is fundamental to law. This yields the following definition of law:

[L]aw is a power of nature, it is the mind and reason of the prudent man, it distinguishes justice and injustice.

Ea [lex] est enim naturae vis, ea mens ratioque prudentis, ea iuris atque iniuriae regula.

De leg.,I.19. Law, therefore, is found in man's nature, but not in all men, only in the mind and reason of the prudent man, the Aristotelian σπουδαῖος (spoudaios), the virtuous, rightly ordered man, not the φαῦλος (phaulos) the imprudent and wicked. The implication, naturally, is that not all impulse is law, but only those impulses that are controlled or ordered that rise out of a man who is seeking for the reasonable and the right and the good. It is that sort of man who can rightly distinguish between that which injures (iniuria) and is unjust, and that which is right (ius), and is therefore just.

But this is law as we find it in man. The source of law is beyond man, beyond the positive laws of any community, even beyond any community itself, Cicero explains to his two friends. To learn of the nature of justice we must go beyond the law found in the inner cosmos of the prudent man and beyond the law found in any just society or state in which one finds himself and begin "from that highest law, which was born aeons before any law was written or indeed before any state was established," ab illa summa lege capiamus exordium, quae, saeclis communis omnibus, ante nata est quam scripta lex ulla aut quam omnino civitas constituta. De leg.,I.19.

Cicero therefore finds law to be beyond human nature and beyond the nature of common life or the civil state. Cicero finds the source of law in nature simply, that is in reality itself. The roots of justice are in nature, in reality itself: "I will seek the roots of justice in nature." Repetam stirpem iuris a natura. De leg.,I.20.

(continued)
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*As mentioned in a prior posting on Cicero, Lex Vera: Sancte Cicero Ora Pro Nobis? the Church quoted Cicero in its discussion of the natural law in the Catechism of the Catholic Church. Cicero is the only pagan cited in the entirety of the whole text (although the text cited is Cicero's De republica, not his De legibus).
**English translations from De legibus are taken from Cicero, On the Commonwealth and On the Laws (James E. G. Zetzel, ed.) (Cambridge: Cambridge University Press, 1999).
***H. v. Arnim, Stoicorum veterum fragmenta, Stuttgart 1978-9, 3:77, no. 314. English translation from Long and Sedley, The Hellenistic Philosophers (Cambridge: Cambridge University Press, 1987), 432).

Natural Law in Cicero's De republica

MARCUS TULLIUS CICERO, "Tully" as he is known to his English-speaking friends, was Republican Rome's great advocate of the philosophy of natural law. He was, one must probably accede, not the most original thinker, but that is not necessarily a fatal defect in the area of morals. His facility of expression, his rhetorical power, the ebullience of his devotion to the natural law, the genius in his packaging all make up for any deficiency in his originality. His greatest contribution to the doctrine of natural law then cannot be said to be in some new insight. His great contribution is in remolding the Platonic/Aristotelian/Stoic thinking on the natural law, a teaching largely found in Greek sources, so as to Latinize it for his Roman countrymen in a manner they could readily comprehend. So Latinized, it entered into the blood of jurists to thicken it, until relative modern times where the Ciceronian corpuscles seems to have been thinned out by a sort of intellectual transfusion with Positivistic platelets.

Cicero's devotion to the natural law is already found in some of his early writings, before he devoted himself to the philosophical project as an adult. For example, in is found already solid in his youthful work De inventione Rhetorica. Cicero finds virtue to be a "habit of the mind [in tune] with nature," virtus est animi habitus naturae. II.53.159. One of the virtues is, of course, justice, and justice is a "habit of the soul which accords a fitting dignity to everything, conserving a due regard to the general welfare." (Iustitia est habitus animi communi utilitate conservata suam cuique tribuens dignitatem.) Like the genus virtue, of which justice is one species, justice's "initial principle proceeds from nature," eius initium est ab natura profectum. Finally, the "natural right is," according to Cicero, "that which has not born with the opinions of men, but has been implanted by some innate power, like religion, piety, gratitude, vindication, obedience to one's superiors, truth." Naturae ius est, quod non opinio genuit, sed quaedam in natura vis insevit, ut religionem, pietatem, gratiam, vindicationem, observantiam, veritatem. II.53.161. So here is the full Monty of morality already in the young Cicero: virtue to justice to natural law.

Marcus Tullius Cicero

By the time Cicero undertakes his more ambitious philosophical project in his later years, Cicero begins with the conviction, a conviction we see that he had in his youth, that the practical life was under a regulatory order, an order of nature (natura), an order that deployed itself in ontological, anthropological, and moral dimensions. The natural law (lex naturae), a law that governed the moral life of man, was not to be viewed as something separate from a general philosophy of man or a comprehensive view of reality, but was to be seen as springing forth from these foundations, as a tree branch from the trunk. It intimately affected both man's individual and his social relations.

Dream of Scipio by Raphael

This sort of view is clearly comprehended by his works on political philosophy, De republica (On the Commonwealth) and De legibus (On Laws). We shall look at Cicero's De republica in this posting, and the De legibus in the next several postings.

Cicero wrote his dialogue on Roman politics De republica between 54 and 51 B.C. Composed of six books, De republica explores forms of government within the context of justifying moral ordering in practical life and in the public life. Alas, this philosophical work which is in the form of a dialogue, survives only in part, found by chance as a palimpsest in 1822 in a Vatican Library manuscript under some text of St. Augustine, and that surviving part has been supplemented from random other sources--a pastiche of Nonius, Lactantius, Augustine and others who quoted or referred to the Ciceronian work, so there are huge gaps in our patrimony. Be that as it may, in those excerpts of the De republica we do have Cicero presents a group dialogue between Scipio Aemilianus, or Scipio Africanus Minor, and a variety of other participants, including Gaius Fannius, Gaius Laelius, Manius Manilius, Quintus Mucius Scaevola, Spurius Mummius, Lucius Furius Philus, Publius Rutilius Rufus, and Quintus Aelius Tubero.

The dialogue takes place in Campus Martius, in Scipio's country estate outside Rome, over three days during the Latin holidays or Feriae Latine, with two books devoted to each day. The sun is in the throes of an eclipse, perhaps symbolic of the eclipse of Republican values as Rome turned empire. The first two books deal with Constitutional theory. The second two books deal with the issue of justice and its function in civil life, and in this section the natural law features prominently, particularly as advanced by the protagonist Laeilius, Scipio's intimate as there was "something like a law between them in their friendship," fuit enim hoc in amicitia quasi quoddam ius inter illos. De rep., I.18. The last book contains the famous passage in which Scipio describes a dream. This is the Somnium Scipionis or "Scipio's Dream" in which Scipio is visited by his dead adoptive grandfather, Scipio Africanus, the great hero of the Second Punic War, and is the vehicle for Cicero to present his cosmological vision which emphasizes the important of an eternal life and final judgment in the scheme of morals and the political life. It is, of course, modeled after Plato's Myth of Er which is to be found in the latter's work The Republic, and which through Macrobius's Commentary had such large influence upon the middle ages, including the likes of Boethius, Dante, and Chaucer. We find it in art, as the subject of Raphael's brush and the music of the young Mozart (see the opera Il sogno de Scipione, K. 126).

On the Commonwealth [the De republica] was the first, and perhaps the only, serious attempt by a Roman to analyze the structure and values of republican government and imperial rule. In adapting Platonic and Aristotelian theories based on the small, self-contained, and relatively homogeneous society of the polis to the conditions of the Roman imperium, Cicero made use of Stoic ideas of the cosmopolis and of natural law to develop a complex and ambitious argument, linking the traditional values and institutions of republic Rome on the one hand to the Aristotelian ideas of civic virtue and on the other to the order of the universe itself. Stoic moral theory made it possible for Cicero to construct an image of society ruled not by a Platonic intellectual elite . . . but by all those whose recognition of their own moral capacities, as part of a cosmic whole, led them to contribute to the creation and preservation of a society which reflected and incorporated the natural justice of the universe.

De rep., xvii-xviii.*

Among the participants of Cicero's dialogue De republica, we find in general two models of human existence, of moral and political reality. The first, espoused by Scipio Aemilianus and Gaius Laelius is based upon a natural law philosophy, and seeks to base both moral and political life on some extra-human, even cosmological standard. The second theory, advanced by Lucius Furius Philus, a Machiavellian avant la lettre, rejects such extra-human standard and insists that all standards are conventional and relative, and that justice "is something civil and not natural at all," ius enim de quo quaerimus civile est aliquod, naturale nullum, that "nature . . . is [not] the mother of justice," iustitiae non natura . . . mater est. III.13, 23. Philus, as St. Augustine in his De civitate Dei put it "gave a careful presentation of he case of injustice against justice." De civ. Dei, 2.21 (egitque sedulo pro iniustitia contra iustitiam).

Scipio Aemilianus finds the foundation of justice and law in the order of things, and order which is based upon reason or mind (mens). It is, in fact, the same ratio ordinis that founds the central core of Thomistic natural law. Scipio Aemilianus finds his mentors not with those who would found their politics on legend or on myth, but with those who would found their politics on the recognition of an order or mind which governs the entirety of reality:

LAELIUS: And who are those instructors?
SCIPIO: Men who, through their investigation of the universe, have recognized that this entire world is ruled by a single mind (qui natura omnium rerum pervestiganda senserunt omnem hunc mundum mente).

De rep., I.57. Scipio is convinced of such an a natural order, divine and eternal, which must serve as the basis for moral and political life. It is nature itself which compels us to live in common: idque ipsa natura non invitaret solum sed etiam cogeret. De rep., I.39b. It is nature herself which provides the law for such common life. "He alone can truly claim all things as his own, not under the law of the Roman people, but by the common law of nature (nec civili nexo sed communi lege naturae) . . . ." De rep., I.27. The law of Rome qua law of Rome is parochial. There is a law that is wholly beyond the law of Rome and which frees man from the limited focus of his time and place. There is a reality beyond this world that is not subject to the vicissitudes, the perishability, the vanity, of the mundane, but is eternal, lasting, divine.

What power, what office, what kingdom can be grander than to look down on all things human and to think of them as less important than wisdom, and to turn over in his mind nothing except what is eternal and divine?

Quod autem imperium, qui magistratus, quod regnum potest esse praestantius, quam despicientem omnia humana et inferiora sapientia ducentem nihil umquam nisi sempiternum et divinum animo volutare?

De rep., I.28. This eternal, divine Reason or Mind is the "ontic plane," that is the basis of all natural order in the world and all moral life. Estrada, 12. It is this divine Reason which diffuses itself throughout all existence.

This view of reality is what informs law, and it is most earnestly argued by Scipio's friend Laelius. As Zetzel puts it in his introduction to Cicero's work:

Laelius advances a very different argument in favor of justice. This speech is unfortunately very fragmentary: but it is clear that Laelius argued in Stoic terms from the existence of natural affection to the existence of natural and permanent moral values, and thus to natural law defined as right reason and explained as a fundamental feature of the structure of the cosmos itself.

De rep., xiv. It is during the course of the Laelian's teaching that we can have this encapsulation of the Ciceronian doctrine in this paean to the natural law:

True law is right reason, consonant with nature, spread through all people. It is constant and eternal; it summons to duty by its orders, it deters from crime by its prohibitions. Its order and prohibitions to good people are never given in vain; but it does not move the wicked by these orders or prohibitions. It is wrong to pass laws obviating this law; it is not permitted to abrogate any of it; it cannot be totally repealed. We cannot be released from this law by the senate or the people, and it needs no exegete or interpreter like Sextus Aelius.** There will not be one law at Rome and another at Athens, one now and another later; but all nations at all times will be bound by this one eternal and unchangeable law, and the god will be the one common master and general (so to speak) of all people. He is the author, expounder, and mover of his law; and the person who does not obey it will be in exile from himself. Insofar as he scorns his nature as a human being, by this very fact he will pay the greatest penalty, even if he escapes all other things that are generally recognized as punishments.

Est quidem vera lex recta ratio, naturae congruens, diffusa in omnes, constans, sempiterna, quae vocet ad officium iubendo, vetando a fraude deterreat, quae tamen neque probos frustra iubet, aut vetat, nec improbos iubendo aut vetando movet. Huic legi nec obrogari fas est, neque derogari ex hac aliquid licet, neque tota abrogari potest; nec vero aut per senatum, aut per populum solvi hac lege possumus; neque est quaerendus explanator aut interpres eius alius; nec erit alia lex Romae, alia Athenis, alia nunc, alia posthac: sed et omnes gentes et omni tempore una lex et sempiterna et immutabilis continebit, unusque erit communis quasi magister et imperator omnium deus, ille legis huius inventor, disceptator, lator; cui qui no parebit, ipse se fugiet, ac naturam hominis aspernatus hoc ipso luet maximas poenas, etia si cetera supplicia, quae putantur, effugerit.

De rep., III.33 [cf. Lactantius, Inst., VI.8, 6-9]

Cicero mined for his philosophy in the rich veins of the Socratic-Platonic idealistic tradition, taken up an modified by Aristotle and the Stoics. He brings this precious intellectual tradition and melds it into tight and orderly Latin philosophical ingots. There are two phases or emphases. The first is the notion of the virtuous man. The second relates to the divine or eternal founding of the world's order, an immutable backing behind a world that is subject to mutability. This divine or eternal reason is the source of law even in the mutable world, and it defines the good, thereby reaching back to define what is virtuous.

This concept of reality bespeaks a teleology constitutive of a natural universal order, in which Cicero has brought about the convergence of two of the most salient teleological theories of Antiquity, namely Platonism and Stoicism; which, beyond undeniable differences in doctrine . . . share the vision of a cosmos that has been penetrated in its whole by divine rationality.

Estrada, 13. Even here, Cicero was not original. It is clear that this blend was part of the teachings of Antiochus of Ascalon, scholarch of Plato's Academy, "who, in an effort to make the school's approach return to its initial identity, fused together into a common heritage the teachings of Plato with those of Aristotle and the Stoics, as documented by Cicero himself." Estrada, 13.

For Cicero, human nature is not something separate and apart from the nature of the cosmos, but is integrally tied to it. Cicero's appeal to nature is "an appeal to nature considered as a whole, and to human nature, as part of that whole, in the justificatory way of moral order." Estrada, 13.

This vision of the nature of man fitted into nature as a whole and linked to divine and eternal reason is what gives the human soul a sort of divinity or dignity. This is the impetus behind Scipio's Dream, where the human soul, following Platonic paradigms, is given a divine origin, which means that man has an eternal destiny beyond that of this world. It is this eternal destiny which he ought to keep in mind when he lives his life on earth. He must live his life on earth sub specie aeternitatis.

There is in man, then a sort of seed or inclination, an "inchoate 'humanitas' that reveals itself in his specific natural inclinations." Estrada, 13-14. It is these inclinations that virtually compel man's need to live virtuously (necessitas virtutis), living for others, open to love (amor) and to the common good. Hos definio, tantam esse necessitate virtutis generi hominum a natura tantumque amorem ad communem salute defendendam datum. "I make this one assertion," Cicero begins his dialogue, "nature has given men such a need for virtue and such a desire [love] to defend the common safety that this force has overcome all the enticements of pleasure and ease." De rep.I.1. It is for this reason that man is "strongly drawn to try to increase the resources of the human race," "eager to make human life safe and better by our plans and efforts." "It is the spur of nature herself that goads us on to this pleasure." Ad hanc voluptatem ipsius naturae stimulis incitamur. De rep. I.3. It is the following of this inclination, this natural law, that leads us into eternal life if there is any hope for one. Cicero is no Hobbesian.

Cicero has a noble view of man, and as we have written before, it was, with baptism proper to anyone encountering Christ, injected into the heart of the New Testament by St. Paul. The old Platonic, Aristotelian, Stoic, Ciceronian wine was put into the new wineskin of the New Testament by the master evangelic and apostolic vintner, St. Paul. And in this he did well, and we trust that it was inspired by the Holy Spirit. For Jesus taught that new wine should not be put into old wineskins, and he taught that new wine should be put into new wineskins. (Matthew 9:14-17, Mark 2:18-22, Luke 5:33-39.) But the Lord did not teach that old wine could not be put into new wineskins. And St. Paul seized on that liberty, and did so in his great Epistle to the Romans (cf. Rom. 2:14), and we are still drinking the delight of that inexhaustible vintage and shall until the end of time.

We do, however, wish the rest of the world were drinking with us, for they would be in far better company than they're with, and there would be far more rejoicing, and much less sorrow, on account of the better wine. We are in a time like the characters of Cicero's dialogue De republica where the sun of the natural moral law is eclipsed. It is time for the eclipsing of moral values of the natural law to end. Then shall the Catholic sun shine unabated with Bellocian glee:

Wherever the Catholic sun doth shine,
There’s always laughter and good red wine.
At least I’ve always found it so.
Benedicamus Domino!

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*All cites and quotations of Cicero's De republica are taken from Cicero, On the Commonwealth and On the Laws (James E. G. Zetzel, ed.) (Cambridge: Cambridge University Press, 1999). I have also drawn on Laura E. Corso de Estrada, "Marcus Tullius Cicero and the Role of Nature in the Knowledge of Moral Good," in Natural Law: Historical, Systematic, and Juridical Approaches (Newcastle: Cambridge Scholars Publishing, 2008), 9-22 (herein "Estrada")
**Sextus Aelius Paetus Catus (fl. 198-194 B.C.) or Sextus Aelius was a Roman Republican consul, elected to that post in 198 B.C. He was highly regarded as a result of a commentary on the Twelve Tables, the traditional laws of Rome. Sextus Aelius's elder brother, Publius Aelius Paetus, was also a consul and famous jurist.