The Republic and The Laws (Oxford World's Classics) (5 page)

5.
That law is based on nature, not on opinion.
‘Nature’ here means the condition of man as it actually is, within the cosmos. So the law based on this objective nature will be a set of general principles, providing a criterion for the laws of diverse communities. Such laws are not necessarily good. Since all men are fallible and many are wicked, ‘it is foolish to imagine that everything decreed by the institutions or laws of a particular country is just’ (L. 1. 42). This recalls a passage of Aristotle where he distinguishes specific law enacted by various communities from general law, which is based on nature
(kata physin).
He goes on to cite the famous clash between Creon and Antigone in Sophocles’ play (in particular, lines 456–7). Antigone, he says, appeals to what is just by nature
(physei dikaion)
in burying her brother, even though that has been forbidden by the ruler.
⁵⁵

Unless a law is contrary to nature (in which case it is a bad law, or, as some argued, not a law at all), a citizen has a duty to obey
it, whether or not it is in his selfish interests to do so, and whether or not he can get away with ignoring it (L. i. 40–1, 43–5). Here Cicero is in line with Plato, who goes to much trouble to refute the idea that the sensible man will aim at a
reputation
for justice but will behave badly when he can escape detection.
⁵⁶
Justice, then, like the other virtues, should be sought for its own sake, and vices should be shunned because they are bad in themselves (L. 1. 48–52).

This is not the place to follow the theory of natural law through the centuries.
⁵⁷
It is worth pointing out, however, that in the 1940s the appalling, but legally sanctioned, excesses of Nazism and Communism led to a revival of interest in natural law: surely there had to be
some
criteria, however general, by which evil laws could be judged and condemned. At the end of the war, Jacques Maritain published his essay
The Rights of Man and Natural Law.
Though Maritain was a Christian, he called his political philosophy ‘humanist’ (29), and conceded that non-Christians might share it. The point here was that, from at least as early as Hugo Grotius in the seventeenth century, it had been recognized that, even if the whole theological dimension were removed, natural law could be seen as a set of principles without which civilized society could not survive. From the other direction the distinguished positivist, H. L. A. Hart, discerned ‘a core of good sense’ in the doctrine of natural law
⁵⁸
—a step welcomed (with qualifications) by A. P. d’Entreves.
⁵⁹
This was the sort of thing that Dennis Lloyd had in mind when he said ‘One of the most significant contemporary characteristics of jurisprudence is the coming together of positivism and natural law’.
⁶⁰
Nevertheless, many problems are still the subject of strenuous debate, including the basic ‘Is-Ought question’, that is, can ‘ought’ ever be reduced to, or derived from ‘is’? Is it logically legitimate to say ‘She is your sister, therefore you should treat her kindly’?
⁶¹

Such problems, of course, are usually discussed in the general context of moral philosophy. But many would think it reasonable to relate them to the idea of natural law. For example, like every law, ‘thou shalt not kill’ admits of exceptions—as in self-defence, in a just war, and possibly in the case of an intolerable tyrant. In antiquity suicide, too, was permitted in extreme circumstances, not only by Epicureans but also by the Stoics, who believed in natural law. What, then, of voluntary euthanasia for a person suffering from an incurable illness? Though not new, the problem has now become urgent as a result of modern techniques of prolonging life. Again, procreation (within marriage) was approved of for centuries as fulfilling natural law, and contraception was condemned for violating it (as it still is by the Roman Catholic Church). But before Malthus very few foresaw that overpopulation would become a serious threat to human survival. Or again, until very recently, most people agreed with Cicero and the Stoics in assuming that man’s dominion over animals (including birds and fish) was in accordance with natural law. But no one envisaged that man would ever be in a position to treat some species as machines and hunt others to extinction. And what of
inanimate
nature? Does natural law have nothing to say about the squandering of resources and the pollution of the planet? If natural law
is
relevant to such matters, does that mean it has to be changed or extended? Or has it always included certain qualifications—qualifications which are now being discovered by the light of experience? For these and similar questions Cicero’s observations are still a good starting point.

Our evidence for the text of the
Republic
is threefold, (1) The incomplete Vatican manuscript, shelfmarked Vat. lat. 5757, was brought to light in 1820 by Cardinal Angelo Mai, Prefect of the Vatican Library. It is an eighth-century copy of St Augustine’s commentary on the Psalms, written at the monastery of Bobbio in northern Italy. Mai detected the traces of an earlier text, which proved to be that of the
Republic.
It was common practice in the early Middle Ages to reuse the parchment from old books, after first making an attempt to wash off the original script. Such recycled manuscripts are called ‘palimpsests’. Using chemical reagents to enhance the clarity of the older script, Mai recovered about a quarter of the original text, which was evidently a luxury edition of the
Republic
written in uncial script in the fourth or fifth century. The pages were out of order, but the original order could be reconstructed partly from context and partly from the signature numbers which the original scribes had marked at the foot of some of the pages. Subsequent editors have made only minor adjustments. (A photograph of a page of the manuscript may conveniently be found in Reynolds and Wilson, plate 10.) The text in this manuscript contains many errors, but the correct reading is in many cases inserted by an early annotator who appears to have had access to an equally or more reliable text. (2) A number of fragments of the text are preserved as quotations in later writers, particularly Lactantius, Augustine, and the grammarian Nonius Marcellus. The fragments have been fully re-examined by Heck. We have omitted some of the shorter fragments and those whose placing or authenticity is doubtful. (3) The ‘Dream of Scipio’ survives, often in association with the commentary of Macrobius, in an independent manuscript tradition of which the earliest representative (Paris, nouv. acq. lat. 454) dates from the ninth century.

The
Laws
survives as part of what is called the Leiden corpus, a collection of Cicero’s philosophical works preserved principally in three medieval manuscripts held at the Bibliotheek der Rijksuniversiteit, Leiden. The text as we have it breaks off at or before
the end of the third book, though there is evidence that it consisted of at least five books (a fragment attributed to Book 5 is preserved by Macrobius). It may well originally have been planned in six books to parallel the
Republic.
It is not clear that Cicero ever published it himself and he may never have revised it fully; it is ironically in this very work that Cicero admits to being bad at resuming work on a project once laid aside. It has been suggested by Zelzer that the text survived at one period only in a cursive copy, which would naturally lead to difficulties of legibility; but whatever the reason, the text as we have it is corrupt in many places and editorial conjecture is often called for.

The reader of any Latin text is likely to encounter some words which have no exact equivalent in English. In these works the chief examples are
animus, magistratus, optimates, pietas, popularis, respublica,
and
virtus.
The Latin
animus
is translated by ‘mind’, ‘soul’, and even ‘heart’, depending on the context.
Magistratus
often meant something more like the minister of a government department than our magistrate. Nevertheless, it has been translated as ‘magistrate’ since that is the traditional practice in all works on classical antiquity. For
optimates
‘the best people’ will not do, for that is a colloquial phrase, usually tinged with irony. In
Pro Sestio
96 Cicero extends the term to ‘right-thinking people’; but in the
Republic
and
Laws
he usually restricts it to the socially, economically, and politically dominant group, i.e. the aristocracy. The word
popularis
was used of a politician who was keen to promote the interests of (and thus gain the favour of) the common people. It did not imply a party or even a programme. ‘Populist’ seems to be the closest approximation. ‘Devotion’ has been used for
pietas,
since our ‘piety’ is predominantly a religious concept. ‘The Republic’ has been kept as the title of Cicero’s work because of the Platonic precedent. Elsewhere ‘state’, ‘country’, ‘form of government’, ‘constitution’, and ‘nation’ have been used for
respublica,
according to the context. As for
virtus,
which originally denoted ‘manliness’ in the sense of ‘courage’, the term ‘moral excellence’, or, less frequently, ‘valour’, ‘worth’, or ‘goodness’ has been used. Latin was blest with two general words for ‘men’, namely
homines
(‘human beings’) and
viri
(‘males’). Often the translation simply uses ‘men’, relying on the context to make the sense clear.

In the dialogues the names of the speakers have been put at the beginning of every speech, and ‘Marcus’ or ‘Quintus’ has been substituted for ‘brother’. In the direct interchanges the style is that of a rather formal conversation; but when Cicero warms to his theme he tends to rise, quite spontaneously, to a higher, more rhetorical, level. Obvious examples occur in ‘The Dream of Scipio’ and at the end of
Laws
1. Little attempt
has been made to reproduce the archaic elements in the diction of Cicero’s proposed legal code. Cicero himself has aimed only at something ‘slightly more old-fashioned’ than contemporary speech (L. 2. 18).

Works most suitable for general reading are indicated by an asterisk.

Astin, A. E.,
Scipio Aemilianus
(Oxford, 1967).

Barker, E. (ed.),
The Politics of Aristotle
(Oxford, 1958).

*Barnes, J., ‘Antiochus of Ascalon’, in M. Griffin and J. Barnes (eds.),
Philosophia Togata
(Oxford, 1989), 51–96.

Beard, M., and North, J. (eds.),
Pagan Priests
(London, 1990).

Beare, W.,
The Roman Stage,
3rd edn. (London, 1963).

Becker, E.,
Technik und Szenerie des ciceronischen Dialogs
(Osnabrück, 1938).

Bickerman, E. J.,
Chronology of the Ancient World,
rev. edn. (London, 1980).

Boyancé, P., ‘Les Méthodes de l’histoire littéraire; Cicéron et son oeuvre philosophique’,
REL
14 (1936), 288–309.

Bréguet, E. (ed.),
Cicéron, La République
(Budé), 2 vols. (Paris, 1980).

Broughton, T. R. S.,
The Magistrates of the Roman Republic,
2 vols. (New York, 1951–2; supplementary vol., Atlanta, 1986).

Bruck, E. E, ‘Cicero vs. the Scaevolas: Law of Inheritance and Decay of Roman Religion’,
Seminar,
3 (1945), 1–20.

*Brunt, P. A. (1), ‘Laus Imperii’,
Roman Imperial Themes
(Oxford, 1990), ch. 14.

——(2), ‘Cicero and Historiography’, in
Miscellanea di studi classici in onore di Eugenio Manni
(Rome, 1979), i. 311–40.

Büchner, K. (1), ‘Die Beste Verfassung. Eine philologische Untersuchung zu den ersten drei Biichern von Ciceros
Staaf, SIFC
26 (1952), 37–140.

——(2)
M. Tullius Cicero, De Re Publica
(Heidelberg, 1984).

Campbell, D. A.,
Greek Lyric,
iii (Loeb Classical Library, 1991).

Cornell, T. J.,
The Beginnings of Rome
(London and New York, 1995).

Crawford, M. H. (ed.),
Roman Statutes,
2 vols. (London, 1996).

Crook, J. A.,
Law and Life of Rome
(London, 1967).

Cumont, F. (1),
Oriental Religions in Roman Paganism
(1911; repr. New York, 1956).

——(2)
After Life in Roman Paganism
(1922; repr. New York, 1959)

Douglas, A. E., ‘Cicero the Philosopher’, in T. A. Dorey (ed.),
Cicero
(London, 1965), 135–70.

*d’Entrèves, A. P.,
Natural Law,
2nd edn. (London, 1970).

Favonius Eulogius,
Disputatio de Somnio Scipionis,
ed. R. E. van Weddingen, Collection Latomus, 27 (1927).

Ferrary, J.-L. (1), ‘Le Discours de Laelius dans le troisième livre du
de re publica
de Cicéron’,
Mélanges de I’École Française de Rome: Antiquité,
86 (1974), 745–71.

——(2), ‘Le Discours de Philus (Cicéron,
de re publica
3. 8–31) et la philosophie de Carnéade’,
REL
55 (1977), 128–56.

——(3), ‘L’Archéologie du
de re publica
(2, 2, 4–37, 63): Cicéron entre Polybe et Platon’,
JRS
74 (1984), 87–98.

——(4), ‘The Statesman and the Law in the Political Philosophy of Cicero’, in A. Laks and M. Schofield (eds.),
Justice and Generosity: Studies in Hellenistic Social and Political Philosophy
(Cambridge, 1995), 48–73.

Forrest, W. G.,
A History of Sparta, 950–192 B.C.,
2nd edn. (London, 1980).

Frazer, J. G.,
The Fasti of Ovid,
5 vols. (London, 1929).

Frede, D., ‘Constitution and Citizenship: Peripatetic Influence on Cicero’s Political Conceptions in the
De re publica’,
in W. W. Fortenbaugh and P. Steinmetz (eds.),
Cicero’s Knowledge of the Peripatos
(New Brunswick, NJ, 1989), 77–100.

Freeman, K.,
Ancilla to the Pre-Socratic Philosophers
(Oxford, 1956).