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Thursday, April 7, 2016

Cicero and the Roman Republic

Marcus Tullius Cicero (106–43 BCE) was the most famous “new man” of Roman politics, hailing from a minor provincial landowning family rather than the great clans of hereditary nobility. He rose to the office of consul and the Senatorial membership it conferred by his wits and audacity as a lawyer and orator in public prosecutions. His greatest moment as consul in 63 BCE came in exposing a conspiracy by Catiline; his brutal suppression of the conspiracy, executing Roman citizens without trial, would however tar his political legacy. He became an enemy of Julius Caesar (though accepting a pardon from him at the end of a stretch of civil wars in 47 BCE), seeing the assertion of rule by first Caesar and then Marc Antony as fatal to the republic. Having defended in his De officiis the murder of Caesar in 44 BCE, Cicero was himself murdered a year later by partisans of the then-ruling Triumvirate in which Antony figured.
The writings of Cicero were virtually canonized subsequent to his death as classic models of rhetoric and philosophy; as Richard Tuck (1990: 43) has remarked, “For fifteen hundred years, from the fourth century to the nineteenth, schoolchildren in Europe were exposed daily to two books. One was the Bible, and the other was the works of Cicero.” His many speeches and letters are themselves of considerable political and often philosophical interest, while his philosophical writings—composed for the most part as a student of philosophy in Rome and Athens, and then in a brief period (46–44 BCE) when political developments led him to retreat from active public life – cover a wide range of topics of which politics is only a part. While Cicero would adhere to a moderate skepticism in general philosophical matters, he admired Panaetius and drew on a number of Stoic ideas in formulating his own ethical and political teachings. In particular, he emphasized the natural affinity for society and the existence of natural law. Here we will focus on his two writings modeled on Plato's, De re publica and De legibus (respectively On the Commonwealth and On the Laws), followed by his most important work of ethics, the De officiis (On Duties), which exercised particular influence on subsequent Western moral and political thought.
De re publica was composed by Cicero between 54 and 51 BCE, a turbulent period of strife in Roman politics. Its dramatic setting is in 129 BCE at time of the crisis caused by Tiberius Gracchus, a consul who had championed a property redistribution law for the people and whom the Senate had suppressed as a threat to Roman civil order. All of it except the “Dream of Scipio” (Book VI) was lost from the Middle Ages onward; it has been reconstructed from references and excerpts in later authors, supplemented by a palimpsest of much of Books I-III discovered in 1819. Framed as a dialogue between Scipio Aemilianus, a hero of the anti-Gracchi resistance, and several others of his actual contemporaries, the dialogue has a discernible structure as identified by E.M. Atkins (2000: 490): Books I-II treat “the best condition of the res publica”; Books III-IV treat “justice and human nature”, topics common to the best city and the best citizen; and Books V-VI treat the “best citizen’ in the discussion of the statesman and in the Dream of Scipio.
While justice was for Cicero, as for the Greeks, the fundamental bond of the commonwealth, he offered distinctive and influential linked definitions of the res publica (”commonwealth“, but literally the ”public thing“) as the res populi, the ”property/thing of the people“, and of a populus or ”people“ in turn as ”an assemblage associated with one another by agreement on law [iuris consensu] and community of interest [utilitatis communione]“ (both, I.39). This could be interpreted either as a strong normative claim –the people agree on law, also translatable as right or justice, and share a common interest – or in a weaker deflationary manner, in which the people nominally accept a common law and share a common conception of their self-interest which may or may not be in accord with justice.[12] Such ambiguity would be famously exploited by Augustine, who used Cicero's definition to argue that lacking justice, conflicted and divided republican Rome had been no commonwealth, before offering his own even weaker definition of a ”people“ as those united in (any) common love (City of God, II.21). In Cicero's own hands, the definitions were used to stress that the commonwealth was the property of the people, who entrusted it to the magistrates to be used for the common good (I.51–2), and that the ”welfare of the people is the supreme law“ (”salus populi suprema lex“, De leg. III.8; this was a reference to a maxim in the ancient ”Twelve Tables“ compendium of Roman law). It followed too that just as Plato denied the title of a (single unified) regime to the imperfect regimes torn by civil discord, so Cicero inferred that corrupt regimes were not strictly speaking res publicae at all (III.43–48). The role of the statesman (rector rei publicae) is to aim at the happiness of the citizens, defined in a laxer way than most Greek philosophers would allow, as wealth, glory, and virtue all combined.
Cicero's spokesman Scipio adheres to Greek philosophical principles in declaring that ”the commonwealth cannot possibly function without justice“ (II.70), adhering to the standard abstract definition in an Aristotelian vein of justice as ”giving each their due“ (ius suum cuique tribuere). In Book III, two other dialogue participants present respectively the famous arguments given on one day for justice, and on the next day against justice, by the skeptical Greek philosopher and ambassador to Rome Carneades. Cicero's presentation reverses the order, no doubt to give justice the last word.
In Cicero's hands, Carneades' case against justice avails itself of the nomos/phusis contrast and of the kind of ambition for power expressed by Plato's character Callicles in the Gorgias. Justice is not natural, as it differs radically among different peoples; it conflicts with wisdom, which tells us ”to rule over as many people as possible, to enjoy pleasures, to be powerful, to rule, to be a lord“ (III.24b), and it is fatal for states and empires, which can't survive without injustice. The speech for justice avails itself in contrast of Stoic themes: ”true law is right reason, consonant with nature“; there is ”one eternal and unchangeable law“ [i.e. what has come to be known as ”natural law“] (III.33). This includes rule of the best over the weakest for the benefit of the latter (III.36): as in Plato's Republic, the justice of rulership is not exploitation but paternalistic benefit. And as in Plato's Book X, where the myth of Er supplies a revisionary religious justification for justice (it will help you to choose your next reincarnation well), so Cicero's Republic concludes with a dream recounted by Scipio Aemilianus about his even more eminent Roman ancestor, Scipio Africanus. The dream describes the divine order which both rewards humans for just service to their city (VI.13), and also puts human affairs in a cosmic perspective designed not to humble humans but to embolden them to care more for justice than for petty human advantage:
you must always look at these heavenly bodies and scorn what is human. What fame can you achieve in what men say, or what glory can you achieve that is worth seeking?” (VI.20)
In a dramatic rejection even of the traditional Roman motive of honor and glory as a motivation to virtue, the imagined elder statesman asks: “…and even the people who talk about us—how long will they do that?” (VI.21).
De legibus, or On the Laws, is also written as a dialogue, but one set in Cicero's own day with himself, his brother, and closest friend as the interlocutors, gathered at his country estate of Arpinum. Probably begun after De re publica, it was likewise written in the years immediately before 51 BCE, and similarly survives only in piecemeal and fragmentary form. Books I-II treat natural law or ius naturae, with “Marcus” (Cicero himself) declaring that “law is the highest reason, rooted in nature” (I.18), and that men, bound to the gods by reason, are “born for justice” (I.28–32). However, “the corruption of bad habits…extinguishes…the sparks given by nature” (I.33) and can result in the formation of bad laws. Such iniquitous laws as those passed by tyrants are not just (I.42); nor is the title of law to be conferred upon “what bandits have agreed among themselves” (II.13).
In Books II-III, the speakers prescribe an ideal law code, based on but modifying Roman law; notably, for example, the institution of the tribunate is defended (III.16–17). As these prescriptions, and the circumstances of their writing (a temporary retreat from active politics), suggest, Cicero had a complex attitude to the Greek dilemma posing the lives of philosophy and of politics as opposed alternatives. He saw philosophy as a source of insight and perspective relevant to politics, but after his early studies, devoted himself to it primarily when temporarily debarred from more active pursuits: one might say that philosophy became, beyond its intrinsic value, a form of alternative public service when the forum was too dangerous for him to enter (for further reflection, see Baraz 2012).
“The De officiis, not the De re publica, is Cicero's Republic” (Long 1995: 240). A. A. Long's dictum is true not only in the sense that for Cicero, as for Plato and Aristotle, ethics was inseparable from politics. It is true also and more profoundly insofar as the De officiis takes as its subject the same subject as Plato's Republic, namely the apparent conflict between justice and individual advantage, and proposes broadly the same resolution, namely that the conflict is only ever apparent: violating one's ethical duties can never serve one's advantage so long as both are properly understood. Book I treats what is virtuous, or honestas; Book II treats what is advantageous, or utilitas; and Book III considers cases to show that any apparent conflict is illusory.
The most difficult case to resolve according to the overall argument of the book is that of advantage when understood as political ambition, driven by greatness of spirit in the pursuit of glory. As Cicero acknowledges, and as was especially true in the highest echelons of Roman society, “Men are led most of all to being overwhelmed by forgetfulness of justice when they slip into desiring positions of command or honour or glory” (I.26). The solution is for true glory to be gained only through the fulfillment of one's officia. Similar casuistry enables Cicero to resolve in accordance with his thesis a range of common cases where advantage might be sought at the expense of justice (in administering the estate of an orphan, for example, a common duty of eminent Romans). Yet such casuistry is always advanced within a context of celebration of justice and natural law: it is not simply that in fact justice never conflicts with advantage, but that justice properly understood is always to one's advantage as a human being.
As in Plato, a redefinition of the virtues plays a crucial role in the overall argument for the benefits of justice. For Cicero, the virtues are Romanized as officia or obligations of role or relationship, each attaching to someone in virtue of a distinct persona (as father, consul, neighbor, etc.). Some virtues are rooted in one's persona as a human being subject to natural law, others in the specific roles and customs of one's city. Four principal virtues are identified: wisdom; justice, resting on fides (good faith and credit) and respect for property; greatness of spirit; and decorum. Respect for property is a keystone of Cicero's political thought, here very far from the Platonism which subordinated property to civic harmony.
Strikingly, whereas tyrannicide might appear to be a difficult case for such an ethical code to confront, Cicero presents it – writing later in the year that Caesar was assassinated—as the straightforwardly ethically correct choice. Cicero couches his case in Stoic terms of naturalness and fellowship. His pivotal move is to deny that tyrants are party to the otherwise universal nature of human fellowship: “…there can be no fellowship between us and tyrants…just as some limbs are amputated if they are…harming other parts of the body, similarly if the wildness and monstrousness of a beast appears in human form, it must be removed from the common humanity…of the body” (Off. III.32: ostensibly about the tyrant Phalaris). Yet it has been observed that for the committing of tyrannicide, at least, Stoicism was not a strong or obvious support: if the wise are already free, and only the foolish are slaves, why should the Stoic risk his own life in killing a tyrant? In extremis, Cicero prized the survival of the republic above all else, and so fashioned an eclectic justification, blending Stoic themes with Platonic imagery, for the elimination of its would-be destroyers.
Marcus Tullius Cicero (106–43 B.C.), prominent Roman statesman and consul, preeminent orator, lawyer, and master of Latin prose, and significant moral and political philosopher, left a substantial written legacy. Within that legacy he gives extensive attention to the natural and thus universal basis of justice and right. In fact, it might fairly be said that his treatment of the natural foundation of right is his most important contribution to moral and political thought: it stands historically at a critical juncture where this idea assumes clearly the language of natural law and comes to exercise a direct and formative influence on leading thinkers from the first centuries of Christianity through the Renaissance.
Cicero’s impact, both direct and indirect, on important post-Renaissance thinkers such as Locke, Hume, and Montesquieu was substantial, and through such writers, and often directly, his thought and very phrases reached to America’s founding generations. Thomas Jefferson explicitly names Cicero as one of a handful of major figures who contributed to a tradition “of public right” that informed his draft of the Declaration of Independence and shaped American understandings of “the common sense” basis for the right of revolution.[1] Cicero’s On Duties, highly regarded and influential throughout much of Western history, was regularly present in the libraries of early America. John Adams and James Wilson were notable in the founding period for recalling Cicero and his teaching on “the principles of nature and eternal reason.” Wilson had contributed in important ways to the success of the Constitutional Convention of 1787 and the subsequent ratification of the Constitution. His important lectures on law in 1790–91, which saw President Washington, Vice President Adams, and Secretary of State Jefferson in attendance at times, gave prominent attention to Cicero on natural law.[2]
Cicero looked back to the great Greek thinkers as one deeply conscious of his debt to them and yet aware of distinctive Roman ways and the general Roman resistance to any dependence on the Greeks. As a very public man in his actions as well as his writings he had to walk a careful line between his wanting to share his convictions of the primacy of the thinking of Socrates, Plato, and Aristotle and the requisite manifestations of his genuine Roman patriotism.  He considered Plato as the first among all philosophers, Aristotle second. It seems that he directly engaged a number of Aristotle’s texts, but he also knew Aristotelian thinking through the representatives in his day of the Peripatetic school of philosophy which Aristotle had founded. Centuries later Dante would look back on Cicero as Rome’s “best Aristotelian.”[3]
Cicero, however, affiliated himself quite explicitly, not with the Peripatetics, nor with the Stoics as is sometimes thought. Rather, he considered himself a Socratic and thus belonging, in his day, to the school of Academic skepticism. In Socrates Cicero found the beginnings of an approach to philosophy that attracted him and that he famously captured in his observation that “Socrates was the first to call philosophy down from heaven and set her in cities and even to bring her into households and compel her to inquire about human life and customs as well as matters good and evil.”[4] This practical orientation of Socrates must have helped draw Cicero to him, and Socrates’ limited skepticism fostered the stance Cicero took against the dogmatic assurance about all things, from wholesale materialism to cosmological order, which he found in the dominant schools of Epicureanism and Stoicism of his own time. The practical orientation entailed a priority for moral and political philosophy and all but assured that the questions about the natural foundation for the good and the just would be central and critical. At the same time, a skeptical approach for Cicero did not mean an abdication of moral judgment but rather a thorough and often adversarial testing of the arguments on important moral and political questions with the intent of affirming, acting upon, and sometimes even rhetorically embellishing what “seemed” most likely true. In such a way he was apparently led to his teaching about nature’s way and natural law.
Those views on nature’s way and natural law are expressed and explicated in the texts of Cicero appearing in the Documents’ section of this website. The passages excerpted there represent the most direct and noted statements of Cicero on the character and basis of natural law. They are drawn from his On the Republic (54–51 B.C.), On the Laws (51 B.C. ff.), and On Duties (44 B.C.). In the brief commentary that follows here, an effort is made to bring out a coherent statement of Cicero’s teaching by offering assistance in contextualizing and interpreting these texts. Proceeding chronologically, this essay moves from Cicero’s most assertive and seemingly cryptic statement about natural law, through his speculations on how that foundational law fits in a larger cosmological and divine order, to his observations on both how nature’s standard is grounded in the very inclinations and capacities of humans and the prudential challenges of applying that standard to concrete moral dilemmas and decisions.
Cicero’s Republic represents his conscious effort to pay tribute to Plato’s great classic by that name and yet to differentiate his approach to the critical questions about the best constitution or regime and the nature and basis of justice. Cicero’s dialogue is set more than twenty years before his own birth and involves prominent leaders of that time including the younger Scipio Africanus and his life-long friend Laelius. Scipio seems to speak for Cicero, but perhaps not exclusively so. In the first passage in the Documents (Republic 1.26–27) and at a point even before the conversation settles on its practical focus about the best constitution, Cicero presents Scipio speaking of the perspective that comes from elevating one’s thoughts and contemplating the whole cosmos in which man finds himself. So at least some of these public men on holiday are drawn to deep speculations about the eternal aspect of all things, and this laudable tendency, though always needing discipline and control, is exemplified again in the memorable Dream of Scipio with which the Republic ends. Here, however, so early in On the Republic and anticipating On the Laws, Cicero’s Scipio indicates that such deep thinking helps one see a “common law of nature” that provides a higher standard than the civil law, a law of nature that gives both privileges or rights, and responsibilities or duties to the truly wise.
Not too much later in the dialogue the idea that there is a law of nature beyond the will of the stronger, of the dominant class, or of public opinion comes under attack. Cicero assigns this Academic task to a character named Philus. It is for him and all present an unwelcome but necessary task of testing and thus making the best argument that can be made against the seeming assumption that there is a justice grounded in the nature of things. The second passage in the Documents (Republic 3.18–19) provides an indication of the kind of argument Philus makes, which emphasizes both the variation in laws from nation to nation and time to time, and that even well-known philosophers seem to differ from common practice in interpreting a standard of justice like giving every person their due. Philus represents a set of arguments heard yet today against the idea of a natural justice and natural law, namely, that variations in “just” civil laws and customs and differing opinions even among leading thinkers constitute an indication that there exists no natural, common understanding of the right and the just.
It is the “wise” Laelius[5] to whom Cicero chiefly assigns the response to Philus, but most of it is lost to us or highly fragmented due to the condition of the manuscript. The heart of the response and the most frequently quoted passage of Cicero on natural law is the third passage in the Documents (Republic 3.33).[6] It can appear to be raw assertion over against the kind of arguments Philus has made. However, what is notable in this eloquent statement is how powerfully its implications tell against the arguments of Philus. The concepts “true law” and “right reason” indicate that not every law is indeed a law, and not every reason, even if pronounced by a “philosopher,” would be a sound reason. Given what is said about “upright men” contrasted with “wicked men,” it is clear that one must be disposed in a certain way to heed the true law, and yet in cases of individual “wicked men” and even where customs and civil laws are generally at variance from right reason, seeds of this true law remain in all, never to be entirely obliterated.
Passages from On the Laws in the Documents clarify what is said in Cicero’s Republic as well as develop what is implicit or lost in that partial text. This is a dialogue, written almost coterminously with the Republic, in which Cicero sets himself as chief character in conversation with his brother Quintus and his dearest friend, Atticus Pomponius. Without contempt for the ordinary knowledge of civil law, Cicero is laying out early in this work and as a primary objective an understanding of human nature and its place in the overall order of reality as “the source [in which] . . . laws and right can be found” (1.16). Fundamental law that is to be directive of human beings comes from a choosing or selection of the “highest reason implanted in nature” (1.18–19); the human mind grasps that fundamental law and derives from it the rules of right and wrong. Thus the effective natural law for humans is “the mind and reason of the prudent man” (1.19). In reaching into nature and learning from her, the wise person shares in a divine force or the very mind of god. Here is an important instance where Cicero shows himself apparently sharing a Stoic understanding of the divine dimension of the law of nature pervading the whole universe.[7]
A statement Cicero makes in On the Laws points to the enrichment of his thinking on natural law in On Duties, the final philosophical work in his richly productive life. “Not only right and wrong are distinguished by nature,” writes Cicero, “but also in general all honorable and disgraceful things. For nature makes common understandings for us and starts forming them in our minds so that honorable things are based on virtue, disgraceful things on vices” (1.44). In Book One of On Duties there is an explanation of the basic human inclinations that give rise, with reason’s guidance, to the foundational (later to be called “cardinal”) virtues of wisdom, justice, courage/magnanimity and temperance/moderation. Finding these virtues is the way to finding nature’s way for humans, to finding the law of nature and thereby what is right.
A complete reading of On Duties shows Cicero saving, as it were, the idea of utility by showing that there is a true utility that is in accord with right; there is, for example, a rightful attention to resources, property, and reputation. Never, when fully understood, are the right and the useful at variance, though they may indeed often seem so. In this work, Cicero is shown applying the right rooted in nature to issues that range from determining one’s specific vocation in life to decisions about just war. Since humans are by nature communal and political beings, he is emphatic in stressing that a natural justice means that one must never do harm and must always serve the common good. Cicero in this text and throughout his writings shows his awareness of the complexity entailed in understanding what true “harm” and the true “common good” are.
Cicero has made a monumental contribution to the tradition of natural law and natural rights in the West. While revering and learning from his great Greek predecessors in the tradition of moral and political philosophy as well as from the schools of philosophy in his own time, he brings forward in a more explicit way the language of natural law, thus developing the notion of “following nature” or of what is “right according to nature.” He points quite unambiguously to a divine source for this law and anticipates later developments of the notion of conscience by stressing that all humankind have a sense of the right within them, seeds needing nourishing and guidance to flourish as mature reason. This maturing entails reason being brought to work upon the gift of our inclinations and thus to formulate the virtues and the very law of nature. This law then is to be the standard shaping the commonalities in the laws of nations and against which one can judge the rightness of any specific civil laws and the edicts and rulings of magistrates.

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