Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Saturday, December 11, 2010

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.


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.

*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).

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