Greece, Rome, and the Bill of Rights (4 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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individuality can be realized in any other society, with any other group of individuals, or in any other period than that in which he is actually living."

33

Stoicism is a one-way street. Self-sufficient individuals act in accordance with nature, but nature owes them nothing back. Certainly nature has not endowed them with "unalienable rights."
How, then, did Stoicism advance the climate of potentiality for an eventual emergence of the idea of individual rights? The answer is threefold.
First, it shifted the definer of persons from the city, as in the case of Plato and Aristotle, to the larger world, or cosmos. To the question: "To whom or what do you belong?" the good Stoic would probably answer, "Not to Sparta or Athens, but to my rationality, which is the part of me most akin to the Law of Nature." No longer was the idea of citizenship limited to local communities.
Second, new emphasis was attached to the individual as a moral agent. Stoics, to be sure, labor as hard as Heracles at being virtuous without thinking of themselves as autonomous or independent agents, but they are moral agents nevertheless.
Finally, the Stoics elaborated and extended the idea of natural law, providing a framework to which many subsequent doctrines could be attached. B. F. Wright locates the earliest sources of American theories of natural law in Plato and Aristotle but concludes that it was the Stoics who produced a theory of natural law adapted to legal and political implications from which human laws and institutions could be seen as at least approximating the laws of nature. These Stoic ideas, as appropriated by Cicero and the Roman jurists, were the sources from which modern ideas of natural law are derived.
34
Roman Law and Natural Law
If Rome's mission was war, her vocation was law.
35
Law has been called the most original product of the Roman mind. While in most other areas of intellectual activity the Romans were subject to the Greeks, here they were

 

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masters. In their hands law became a scientific subject for the first time, with its own abstract principles derived from actual rules and practices. The Romans typically were not given to abstractions, but this capacity for abstract legal thinking turned out to be one of the most fertile of all, for it meant that they could easily combine old principles and rules to form new ideas and rules.

36
Barry Nicholas emphasizes this capacity for abstractions:

It was the strength of the Roman lawyers that they not only had the ability to construct and manipulate these abstractions on a scale and with a complexity previously unknown, but had also a clear sense of the needs of social and commercial life, an eye for the simplest method of achieving a desired practical result, and a readiness to reject the logic of their own constructions when it conflicted with the demands of convenience. If the law is "practical reason" it is not surprising that the Romans, with their genius for the practical, should have found in it a field of intellectual activity to which they were ideally suited.
37
The Romans were so given to the ordering of relations in a legal sense that they even adopted a legal relationship with the gods. There was no need to love the gods, only to give them their due and to expect due consideration back. Roman prayers typically had the character of a legal contract:
do ut des
, "I give so that you will give."
The pragmatic Romans solved their legal problems in a practical fashion as they met them
solvitur ambulando
, "it is solved by going." At first the Roman city-state had few dealings with foreign law, which in any case was not acknowledged by the Romans as even existing since it was not their own. In the early days there was no concept of international private law, and Rome recognized the rights of foreigners only insofar as she conferred one-way concessions or treaties upon them. In the beginning, therefore, the "law of nations"
ius gentium
was only a way of describing accepted practices extended to ambassadors. From the time of Cicero (10643
B.C.
), however, the term came to refer to the legal institutions common

 

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to various peoples. Under the
ius gentium
Roman jurists recognized a whole range of legal relations as valid between Roman citizens and foreigners or between foreigners and foreigners, depending on the decrease in national or municipal particularism. By the first quarter of the second century
B.C.
the term
ius gentium
was used to group together an array of rules governing these relationships that had been found so useful as to be put into law.

38

This broader notion of the
ius gentium
was a Roman creation and had no validity except in a context defined by Rome. Gaius (second century
A.D.
) devised the distinction between the
ius civile
, each people's particular law not met elsewhere, and the
ius gentium
, the law revealed by natural reason and observed everywhere. This was the first time that the conception of universal reason appeared not only in the books of philosophers but also in the actual corpus of Roman jurisprudence.
39
Rome took seriously her task of governing her newly conquered provinces. She was so confident of her own laws that the provinces were led to submit to them, too. This meant that gradually Roman law came to hold sway over a very large area and for a very long time, so that a significant portion of the human race has been affected by it ever since.
40
The power of Roman law was greatly enhanced by its marriage with Stoic philosophy and especially with the doctrine of natural law. At first Rome had only the local laws of her own citizens, the
Quirites
. Slowly the law of nations,
ius gentium
, began to carry the weight of law among Rome's allies and enemies alike. A later term for the
ius gentium
was
ius commune
, which means almost "common sense." The evolution of the
ius gentium
was advanced by Cicero and predicated on Stoicism. Stoicism furnished the philosophical basis that, over a long period of time, transformed the
ius gentium
from an exception into a rational system flexible enough to embody a system of equity for all of Western society.
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Stoicism provided Roman law with a more cosmopolitan outlook appropriate to a world widened by the conquests of Alexander and transformed into an enduring

 

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empire by the Romans. The major thrust toward empire, sped by the wars with Carthage, occurred during the very period in the second century
B.C.
when Stoic philosophy was most influential at Rome. As Rome assumed a role of administering jurisdiction over the world it had conquered, it needed a broader conception of law to confirm and justify such a role. Stoic philosophy as adapted by the Romans and most especially by Cicero was perfectly suited for this function.

42
Without Stoicism, Rome could not have made her greatest contribution to Western culture.

Our major source for Roman law is the
Digest
, also called the
Pandects
, compiled at the behest of the emperor Justinian between
A.D.
530 and 533. Justinian, eager to restore the greatness of the Roman Empire and conscious of the importance of law to that project, commissioned Tribonian and a group of sixteen legal scholars to read all the law books available and abridge them into one work. The result was a work one and a half times the size of the Bible. Justinian insisted, however, that all the constituent texts had to be abridged and edited to include nothing that was obsolete in his own time. This meant that most earlier Roman legal documents cannot be known in their original form except for the
Institutes of Gaius
, a textbook of the second century
A.D.
, which was discovered in 1816 underneath a text of St. Jerome. A second commission in 534 revised an earlier collection of imperial constitutions dating from the reign of Hadrian. The third component of Justinian's project was the
Institutes
, a short educational handbook for students published also in 533.
All of these works together comprise the
Corpus iuris civilis
, which is often considered to have influenced the Western world more than any other document except the Bible. Edward Gibbon in the
Decline and Fall of the Roman Empire
gives tribute to Justinian for his astonishing achievement:
The vain titles of the victories of Justinian are crumbled into dust, but the name of the legislator is inscribed on a fair and everlasting monument. Under his reign, and by his care, the

 

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