Cicero and the roman lawyers. By the beginning of the first century before Christ the political processes which began with Alexander’s conquest of the East had in a large measure completed themselves. The whole Mediterranean world had been cast into the melting pot and had become in no small degree a single community. The city-state had ceased to count, and there were no politically self-conscious nations such as the modern era has produced.
Already it was apparent that the successor to Macedonia and also to Egypt and the Asiatic Kingdoms would be Rome, and that the known civilized world would be united under a single political rule, as indeed happened in the course of the century following. By the beginning of the first century, also, the Stoic philosophy had spread the ideas of a world-state, of natural justice, and universal citizenship, though these terms had an ethical rather than a legal sense. The stage was set for the further development and clarification of these philosophical ideas.
The more negative ethics of the Epicureans and the Skeptics-the identification of nature with individual self-interest-continued to exist, but the immediate future, at least, lay with the ideas developed by the Stoics. These had now become so dispersed that they were ready to lose their identification with any philosophic system and become the common property of educated men.
These ideas included a number of convictions having an ethical or a religious import but no very high degree of philosophical precision. With an ever-increasing tendency of the Schools to borrow from one another, they had even lost some of the precision which trey had in the Stoicism of Chrysippus, as was to be expected when they became current in a culture that was substantially world-wide.
They included the belief that the world is the subject of divine government by a God who is, in some sense, reasonable and good, and who stands therefore in a relation to men that may be compared with that of a father to his children.
They included also the belief that men are brothers to one another and members of a common human family, in which their rationality makes them as a race akin to God and in some fundamental way alike, even after allowance has been made for the distinctions which diversity of language and local custom create among them.
Hence there are some rules of morality and justice and reasonableness in conduct which are binding upon all men, not because they are laid down in the positive law or because a penalty follows their violation, but because they are intrinsically right and deserving of respect, Finally, and perhaps vaguest of all, men were felt ta be fundamentally social in their nature.
This idea had no such precision as Aristotle’s theory that man is an animal who reaches the highest stage of his development in the civilization of the city-state. It suggested merely that respect for the laws of God and man is a native endowment of human nature and that by following the lead of this innate reverence he fulfills his own nature, while he stultifies himself if he elects to do the opposite.
The development of these ideas, in the first century before Christ and in the two or three centuries thereafter, followed two main lines. The one continued in the direction already indicated by the influence of Stoicism upon the beginnings of Roman jurisprudence; it had the effect of embedding natural law in the philosophical apparatus of the Roman Law.
The other had to do with the religious implications of the idea that law and government are rooted in the plan of Divine Providence for the guidance of human life. In both cases the development of a political philosophy was incidental.
Of the writers to be considered, only Cicero was avowedly a political theorist, yet his effort to deal specifically with the political problems of the Roman Republic was the least important part of his work. But though a political theory was incidental to more general purposes-in the one case to the construction of a system of law and jurisprudence and in the other to the construction of a theology and an ecclesiastical organization-the resulting nodes of political thought departed widely from the point of view that had prevailed in Greek political theory and exerted a profound influence upon political reflection in the centuries following.
Legalism-the presumption that the state is a creature of law and is to be discussed not in terms of sociological fact or ethical good but in terms of legal competence and rights-had hardly existed in Greek thought; it has been an intrinsic part of political theory from Roman times to the present.
The relation of the state to religious institutions and of political philosophy to theology had scarcely been problems for the Greeks, but they set the chief problems and colored the discussion of every problem throughout the Middle Ages and well down into modern times. In the history of political theory, therefore, the changes wrought in the age just before and not long after the beginning of the Christian era were of momentous importance, though they produced no systematic treatises on political philosophy.
This Article and the following will deal respectively with these two tendencies, the legal and the theological. In respect to dates they lie nearly parallel to one another. Perhaps a world of explanation is required for allocating Cicero to the first and Seneca to the second, thus violating a chronological arrangement and also, as it may seem, slurring over the break which might be assumed to have occurred with the rise of Christianity.
The reason for including Cicero in the same chapter with the lawyers is not, of course, either that he was a great jurist, for he was not, or that only lawyers read him. It is merely that his political ideas seem to lave a secular cast and so a relatively close affinity with those of the lawyers.
Seneca, on the other hand, gave a definitely religious bias to his philosophy. The reason for including Seneca with the Christian Fathers is to mark the fact that, in the beginning, the rise of Christianity did not carry with it a new political philosophy.
Christianity itself and its ultimate establishment as the legal religion of the empire were the consummation of social and intellectual changes that had long been at work and which affected almost equally thinkers who never embraced the new faith.
So far as political ideas are concerned, those of the Fathers were for the most part those of Cicero and Seneca. For purposes of historical accuracy there is no reason why the Christian era should be taken as beginning a new period in political thought.
The political thought of Cicero is not important because of its originality; his books were frankly compilations, as he himself avows. They had, however, one merit which is far from negligible everybody read them. An idea once embedded in Cicero was preserved to the reading public for all future time. So far as his political thought is concerned, his philosophy was the form of Stoicism which Panaetius had produced for a Roman public and transmitted to the Scipionic Circle.
In fact, nearly all that is known of this philosophy as it stood at the beginning of the first century before Christ has to be gathered from Cicero. His own political treatises, the Republic and the Laws, were written at about the middle of the century and are the-best index of political thought at Rome, especially in conservative and aristocratic circles, during the last days of the Republic.
For the understanding of Cicero and his historical importance it is necessary to distinguish rather sharply between the immediate purpose for which he wrote and the long-time influence that he exerted. His influence was very great, but what he attempted was a total failure, if not actually an anachronism in its own time. The moral purpose for which he wrote was to commend the traditional Roman virtue of public service and the per-eminence of the statesman’s career, enlightening and harmonizing these with a tincture of Greek philosophy.
His political object was nothing less than to turn back the clock and restore the republican constitution to the form that it had had before the revolutionary tribunate of Tiberius Gracchus. This explains his adoption in the Republic of the younger Scipio and Laelius as the heroes of the dialogue. Needless to say, this object had little reality when Cicero wrote and none at all within a generation after his death.
To this part of his political theory must be assigned two ideas to which he attached great importance but which, in the age under discussion, had hardly more than antiquarian interest: a belief in the excellence of the mixed constitution and the theory of the historical cycle of constitutions. Both these he derived from Polybius, and perhaps also from Panaetius, though he endeavored to modify them in the light of his own understanding of Roman history.
In fact, Cicero had a really promising plan, if only he had possessed the philosophical capacity to carry it out. This was to set forth a theory of the perfect state (a mixed constitution), by permitting its principles to be developed in the course of a history of the Roman constitution (according to the theory of the cycle).
Contributed by many minds working under diverse circumstances and embodying piecemeal! the solutions of political problems as they arose, the constitution of Rome, as Cicero conceives, was the most stable and perfect form of government that political experience had evolved. By tracing its development and analyzing its parts in relation to one another it should be possible to arrive at a theory of the state in which mere speculation is reduced to a minimum.
Unfortunately, however, Cicero lacked the originality to strike out a new theory for himself, in line with Roman experience and in defiance of his Greek sources. The Polybian cycle-the orderly alternation of good and bad constitutions, from monarchy to tyranny, from tyranny to aristocracy, from aristocracy to oligarchy, from oligarchy to moderate democracy, and from democracy to mob-rule-had been commendable chiefly for its logical neatness, but such empirical observation as lay behind it was that of the city-states.
Cicero was uncomfortably aware that it did not fit his ideas of Roman history, and in the event he did little more than render lip service to the theory of the cycle while robbing it even of logical neatness. In a somewhat similar way he praised the advantages of a mixed constitution, the type of which he believed to be Rome, without even making: clear what Roman institutions he took to represent each element of the composite.
His account of the matter justifies Tacitus’s gibe that it is easier to praise a mixed constitution than to realize one. The intention to sketch a theory of the state in close relation to Roman institutional history was laudable, but it was not to be realized by a man who took his theory ready-made from Greek sources and grafted it upon an account of Roman history.
Cicero’s true importance in the history of political thought lies in the fact that he gave to the Stoic doctrine of natural law a statement in which it was universally known throughout western Europe from his own day down to the nineteenth century. From him it passed to the Roman lawyers and not less to the Fathers of the Church.
The most important passages were quoted times without number throughout the Middle Ages, It is a significant fact that, though the text of the Republic was lost after the twelfth century and not recovered until the nineteenth, its most striking passages had already been excerpted into the books of Augustine and Lactantius, and so had become matters of common knowledge.
The ideas were, of course, in no sense original with Cicero but his statement of them, largely in Latin expressions of his own devising to render the Stoic Greek, became incomparably the most important single literary means for spreading them through western Europe. A few of Cicero’s great passages must be kept in mind by anyone who wishes to read political philosophy in the centuries that followed.
First of all, there is a universal law of nature arising equally from the fact of God’s providential government of the world and from the rational and social nature of human beings which makes them akin to God. This is, as it were, the constitution of the world-state; it is the same everywhere and is unchangeable binding upon all men and all nations. No legislation that contravenes it is entitled to the name of law, for no ruler and no people can make right wrong:
There is in fact a true law–namely, right reason-which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong. Ks commands and prohibitions always influence good men, but are without effect upon the bad. To invalidate this law by human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it wholly is impossible. Neither the senate nor the people can absolve us from our obligation to obey this law, and it requires no Sextus Aelius to expound and interpret it. it will not lay down one rule at Rome and another at Athens, nor will it be one rule to-day and another to-morrow. But there will be one law, eternal and unchangeable, binding at all times upon al! peoples; and there will be, as it were, one common master and ruler of men, namely God, who is the author of this law, its interpreter, and its sponsor. The man who will not obey it will abandon his better self, and, in denying the true nature of a man, will thereby suffer the severest of penalties, though he has escaped all the other consequences which men cal punishment.
In the light of this eternal law all men, as Cicero insists in the most unequivocal terms, are equal. They are not equal in learning, and it is hot expedient for the state to try to equalize their property, but in the possession of reason, in their underlying psychological make-up, and their general attitude toward what they believe to be honorable or base, all men are alike. Indeed Cicero goes so far as to suggest that it is nothing but error, bad habits and false opinions, that prevents men from being in fact equal.
All men and all races of men possess the same Capacity for experience and for the same kinds of experience, and all are equally capable of discriminating between right and wrong.
Out of all the material of the philosophers discussions, surely there comes nothing more valuable than the full realization that we are born for Justice, and that right is based, not upon man’s opinion’s, but upon Nature. This fact will immediately be plain if you once get a clear conception of man’s fellowship and union with his fellow-men. For no single thing is so like another, so exactly its counterpart, as all of us are to one another. Nay, if bad habits and false beliefs did not twist the weaker minds and turn them in whatever direction they are inclined, no one would be so like his own self as all men would be like all others.
Professor A. J. Carlyle has said that no change in political theory is so startling in its completeness
“as the change from Aristotle to a passage such as this. The process of reasoning is, in truth, the exact Opposite of that which Aristotle had used. The relation of free citizenship for Aristotle can hold only between equals, but because men are not equal, he had inferred that citizenship must be restricted to a small and carefully selected group.”
Cicero on the contrary infers that, be cause all men are subject to one law and so are fellow-citizens, they must be in some sense equal. For Cicero equality is a,moral requirement rather than a fact; in ethical terms it expresses much the same conviction that a Christian might express by saying that God is no re-specter of persons.
There is no implication of political democracy, though without some such moral conviction democracy would be hard to defend. What is asserted is that some measure of human dignity and respect is due to every man; he is inside and not outside the great human brotherhood.
Even if he were a slave he would not be, as Aristotle had said, a living tool, but more nearly as Chrysippus had said, a wage earner hired for life. Or, as Kant rephrased the old ideal eighteen centuries later, a man must be treated as an end and not as a means. The astonishing fact is that Chrysippus and Cicero are closer to Kant than they are to Aristotle.
The political deduction which Cicero draws from this ethical axiom is, that a state cannot exist permanently, or at least cannot exist in any but a crippled condition, unless it depends upon, and acknowledges, and gives effect to the consciousness of mutual obligations and the mutual recognition of rights that bind its citizens together.
The state is a moral Community, a group of persons who in common possess the state and its law. For this reason he calls the state, in a fine phrase, the res populi or the res publica, the affair of the people, which is practically equivalent in meaning to the older English use of the word commonwealth.
This is the ground for Cicero’s argument, against the Epicureans and Skeptics, that justice is an intrinsic good. Unless the state is a Community, for ethical purposes and unless it is held, together by moral ties, it is nothing, as Augustine said later, except highway robbery on a large scale. A state may of course be tyrannous and rule its subjects by brute force-the moral law does not make immorality impossible-but in the measure that it does so, it loses the true character of a state.
The commonwealth, then, is the people’s affair; and the people is not every group of men, associated in any manner, but is the coming together of a considerable number of men who are united by a common agreement about law and rights and by the desire to participate in mutual advantages.
The state, then, is a corporate body, membership in which is the common possession of all its citizens; it exists to supply its members with the advantages of mutual aid and just government. Three consequences follow: First, since the state and its law is the common property of the people, its authority arises from the collective power of the people.
A people is a self-governing organization which has necessarily the powers required to preserve itself and continue its existence. Second, political power when rightfully and lawfully exercised really is the corporate power of the people. The magistrate who exercises it does so by virtue of his office; his warrant is the law and he is the creature of the law.
For as the laws govern the magistrate, so the magistrate governs the people, and it can truly be said that the magistrate is a speaking law, and the law a silent magistrate.
Third the state itself and its law is always subject to the law of God, or the moral or natural law-that higher rule of right which transcends human choice and human institution. Force is an incident in the nature of the state and is justified only because it is required to give effect to the principles of justice and right.
These general principles of government-that authority proceeds from the people, should be exercised only by warrant of law, and is justified only on moral grounds-achieved practically universal acceptance within comparatively a short time after Cicero wrote and remained commonplaces of political philosophy for many centuries, There was substantially no difference of opinion about them on the part of anyone in the whole course of the Middle Ages; they became a part of the common heritage of political ideas.
There might, however, be considerable differences of opinion about the application of them, even among men who had not the remotest doubt about the principles themselves. Thus everyone agrees that a tyrant is despicable and his tyranny a bitter wrong against his people, but it is not obvious just what the people are entitled to do about it, or who is to act in their behalf in doing it, or how bad the abuse must be before measures are justified.
In particular, the derivation of political authority from the people does not of itself imply any of the democratic consequences which in modern times have been deduced from the consent of the governed. It does not say who speaks for the people, how he becomes entitled so to speak, or exactly who the people are for whom he speaks-all questions of the utmost practical importance. The use of the ancient principle that political authority comes from the people to defend the modern forms of representative government was merely the adaptation | of an old idea to a new situation.
The Roman Lawyers:-
The classical period in the development of Roman jurisprudence fell in the second and third centuries after Christ, and the writings of the great jurists of that age were excerpted and compiled into the Digest (or Pandects), which the Emperor Justinian caused to be published in 533. The political philosophy which is embedded in this body of legal writing is a repetition and elaboration of the theories found in Cicero.
Political theory forms an insignificant proportion of the whole work, the relevant passages being neither very numerous nor very extensive. The lawyers were jurists, not philosophers. For this reason it is often hard to tell just how seriously a philosophical idea is to be taken when it occurs; one does not know whether the writer himself regarded It as a polite embellishment or whether it really influenced his legal judgment.
Obviously it was never part of the lawyers purpose to formulate a political philosophy or to inject a philosophy into the law the philosophy of the Roman lawyers was not philosophy in a technical sense but certain general social and ethical conceptions, known to all intelligent men, which were in some way considered to be useful for their own juristic purposes.
This makes it the more striking that they uniformly selected philosophical ideas belonging in the Stoic and Ciceroian tradition. The ideas of egoistic individualism, contained in the writings of the Epicureans and the Skeptics, must have been equally at their disposal, but the lawyers found no use for them.
The fact that their interest in political theory was desultory and unsystematic does not mean that what they had to say was unimportant. The enormous authority attached to the Roman law throughout western Europe gave weight to any proposition which was a recognized part of it.
Moreover, any general conception embedded in the law was certain to be known to all educated men as well as to lawyers, and ultimately by common report to many who were not scholars at all. In the end the Roman law became one of the greatest intellectual forces in the history of European civilization, because it provided principles and categories in terms of which men thought about all sorts of subjects and not least about politics. Legalist argumentation-reasoning in terms of men’s rights and of the justifiable powers of rulers-became and remained a generally accepted method of political theorizing.
The lawyers excerpted in the Digest, as well as those who formulated Justinian’s Institutes in the sixth century, recognized three main types of law, the ius civile, the ius gentium, and the ius naturale. The ius civile is of course, the enactments or the customary law of a particular state, what would now be called positive municipal law.
The other two classes are not quite so clear, either in respect to the distinction between ius gentium and ius naturale or in respect to the relation of both to the ius civile. Cicero had used both these terms but had apparently made no distinction of meaning between them.
In origin, as was said in the preceding chapter, the term ius gentium belonged to the lawyers, while ius naturale was a rendering of Greek philosophical terminology. In meaning the two apparently coalesced, both for the earlier lawyers and for Cicero.
They signified indifferently principles that were generally recognized and therefore common to the law of different peoples and also principles that were inherently reasonable and right without reference to their occurrence in any system of law.
The distinction was easy to overlook because common consent was taken as a test of validity. It seemed a fair presumption that what many Peoples have arrived at independently is more likely to be right than What is peculiar to any single people.
As time went on the lawyers apparently saw a reason for distinguishing ius gentium from ius naturale. Gaius, writing in the second Century, continued to use the terms synonymous, but Ulpian and late; writers in the third century made a distinction, as did also the lawyers who prepared the institutes in the sixth.
The distinction added precision to legal definition, but it perhaps signified also a more penetrating ethical criticism of the law; even what is generally practiced may still be unjust and unreasonable. The main point upon which ius gentium and ius naturale are distinguished is slavery.
By nature all men are born free and equal, but slavery is permitted according to the ius gentium.? It is hard to tell just what this natural liberty meant to the lawyers who asserted its reality so flatly, but in view of the efforts made, not without success, to throw legal safeguards about slaves and other oppressed classes, it seems reasonable to construe it as representing some moral reservation about practices whose legality was unquestionable accord.
Being to all known codes. Perhaps the idea was, as Professor Carlyle suggests, that in some purer or better form of society slavery had not existed, or would not exist. At all events, such passages would be so understood after Christianity had made the story of the fall of man a common belief.
Whether or not they distinguished between ius gentium and ius naturale, none of the lawyers doubted that there is a higher law than the enactments of any particular state. Like Cicero they conceived of the law as ultimately rational, universal, unchangeable, and divine, at feast in respect to the main principles of right and justice.
The Roman law, like the English common law, was only in small part a product of legislation. Hence the presumption was never made that law expresses nothing but the will of a competent legislative body, which is an idea of quite recent origin. It was assumed that nature sets certain norms which the positive law must live up to as best it can and that, as Cicero had believed, an unlawful statute simply is not law.
Throughout the whole of the Middle Ages and well down into modern times the existence and the validity of such a higher law were taken for granted. As Sir Frederick Pollock says, the central idea of natural law, from the Roman Republic to modern times, was an ultimate principle of fitness with regard to the nature of man as a rational and social being, which is, or ought to be, the justification of every form of positive law.
In theory, therefore, the positive law is an approximation to perfect justice and right; these represent its objects and form its standards. It is, as ulplan says, quoting Celsus, ars boni et equal,
Justice is a fixed and abiding disposition to give to every man his right. The precepts of the law are as follows: to live honorably, to injure no one, to give to every man his own. Jurisprudence is a knowledge of things human and divine, the science of the just and the unjust.
Hence the lawyer is a priest of justice, the practitioner of a true philosophy, not a pretender to an imitation. It is not necessary to take ulpian’s rhetoric as a literal statement of fact. But it remains true that the Roman jurists did build up a more enlightened body of jaw than had ever existed, and though the changes they wrought had their economic and political causes, it is not to be imagined that they came about without reference to the ideals of the profession.
Natural law meant interpretation in the light of such conceptions as equality before the law, faithfulness to engagements, fair dealing or equity, the superior importance of intent to mere words and formulates, the protection of dependents, and the recognition of claims based on blood relationship.
Procedure was more and more freed from mere formality contracts were made to rest on agreement rather than on words of stipulation; the father’s absolute control over the property and persons of his children was broken; married women became the full legal equals of their husbands in the control of their property and children; and finally great progress was made in throwing legal safeguards about slaves, partly by way of protecting them against cruelty, partly by making their manumission as easy as possible.
A modern exponent of just law, Rudolf Stammler, has regarded this belief in justice as the crowning glory of Roman jurisprudence.
This, in my opinion, is the universal significance of the classical Roman jurists; this, their permanent worth. They had the courage to raise their glance from the ordinary questions of the day to the whole. And in reflecting on the narrow status of the particular case, they directed their thoughts to the guiding star of all law, namely the realization of justice in life.
It should be noted that these reforms in the Roman law, though they were completed after the beginning of the Christian era, were not due to Christianity. The effective humanizing influence was Stoicism and there seems to be no evidence whatever of any effect of the christian communities upon the great jurists of the second and third centuries.
At a later date, in the time of Constantine and after, Christian influence can be seen, but it was not exerted in the directions mentioned above. Its purpose was to secure in one way or another the legal position of the church or of its officials, or to aid in carrying out policies of the church.
Typical legal changes which the church secured for the protection of its interests were the right to receive property by will, the establishment of the jurisdiction of bishops courts, the power to supervise charities, the repeal of the laws against celibacy, and the enactment of laws against heresy and apostasy.
Finally, the Roman law crystallized the theory, already contained in Cicero, that the authority of the ruler is derived from the people. The theory was summed up in a sentence by ulpian, repeatedly quoted, and there is no dissent by any of the lawyers either of the Digest or the Institutes:
The will of the Emperor has the force of law, because by the passage of the lex regia the people transfers to him and vests in him all its own power and authority.
The theory is to be understood, of course, in a strictly legal sense and it is couched in terms that had a definitely technical significance. In itself it justifies neither the implication of royal absolutism, which was sometimes derived from the first clause, nor of representative government, which the sovereignty of the people came to signify later.
The latter meaning would have been especially absurd in the Roman Empire when ulpian wrote. The idea behind ulpian’s statement is that expressed by Cicero, that law is the common possession of a people in its corporate capacity. This idea appears in the theory that customary law has the consent of the people, since custom exists only in the common practice. It appears also in the classification of the sources from which law is derived.
Thus law might arise by the enactment of a popular assembly or by the vote of some authorized part of the people such as the plebeian assembly or by a decree of the Senate or by a decree of the Emperor or by the edict of an ordinance-issuing official. In all cases, however, the source must be authorized and in the last resort all forms of law go back to the legal activity inherent in a politically organized people.
In a sense every established organ of government does represent the people in some degree and some capacity, but there is obviously no implication that representation has anything to do with voting and still less that voting is a right inherent in every person. The people is an entity quite different from the persons who happen at any given time to be Included in It.
At the same time some essence has been preserved from the ancient doctrine that law is an impersonal reason and that in consequence there is a broad moral distinction between lawful government and successful tyranny. Even though the former be often bad and the latter sometimes efficient, subjection to law is not incompatible with moral freedom and human dignity, while subjection to even the kindliest master is morally degrading.
The Roman law preserved the spirit of Cicero’s striking phrase:
We are servants of the law in order that we may be free.
And indeed, there is no more astonishing evidence of the strength that this conviction had come to have in European morals than the fact of its preservation in a system of law which reached its maturity at a time when the personal power of the Emperors was often unlimited and when their authority rested frequently on nothing better than force.
Yet the fact remains that in the long run the ideal embedded in the law was a permanent factor in European political civilization-a distillation from the old free life of the city-state-which was able to endure through and beyond an age in which all the servility of oriental despotism had apparently been transplanted to Rome.