WE SAW THAT CICERO WAS CONVINCED that positive law is insufficient to govern man and that the inner discipline and sanction of the natural law is required. But Cicero reserves his greatest excoriation for those who are foolish enough to think that the positive law is the only source of right and wrong. If you would have argued that law is nothing other than convention to Cicero as, for example, John Austin or Jeremy Bentham or H. L. A. Hart may have argued, Cicero would have laughed in your face and indeed called you nothing short of stupid or mad, stultified and demented:
The Three Stooges of the Law per Cicero: Bentham, Austin, and Hart
De leg., I.42-43, 45. If all is convention, if all is determined by utility, then the law itself will be destroyed by convention or utility. There would be no grounds for liberality, for love of country, for piety, for any selfless acts or acts directed toward the common good. All these acts "arise because we are inclined to love other humans (propensi sumus ad diligendos homines), and that inclination, that diligence or love, is the foundation of justice (fundamentum iuris est)." De leg., I.43.
Justice arises from nature, and not from convention. Therefore, Cicero insists, the decisions of judges, the will of the majority, or the decree of the prince cannot define justice: a judge, a prince, the people cannot make it just to commit adultery, highway robbery, or forge wills. No, nature is above positive law. Indeed, nature is what serves as positive law's standard and judge: "But in fact we can divide good laws from bad laws by no other standard than that of nature." Atqui nos legem bonam a mala nulla alia nisi naturae norma diuidere possumus. De leg., I.44.
Man is no exception to the rule. Just like a horse or a tree is judged with reference to its nature, so man is judged with reference to his nature. We do not argue that a lame horse does not correspond to what a horse ought to be, or that a tree that has tree rot or blight is not living in accord with its nature. Nothing would suggest that man operates under a different rule. "For just as true and false, logical and illogical are judged in themselves and not be external considerations, so to a constant and consistent manner of life, which is virtue, and similarly inconstancy, which is vice, will be judged by their own nature." De leg., I.45. Man's character is judged in reference to virtue and vice, and virtue and vice, including justice and injustice, are judged in reference to nature. To suggest that man is not to be judged by nature, but by opinion, is, ultimately to propose that "men would be happy by opinion--and nothing dumber than that could possibly be said," Nam ni ita esset, beati quoque opinione essemus, quo quid dici potest stultius? De leg., I.46.
Justice, like all the virtues, "seeks no reward and no prize, and thus it is sought for itself," item iustitia nihil expetit praemii, nihil pretii. A man must not apprise justice by the profit in it, or whether it is in his interest, or if there be reward in it. If not cultivated for itself, then justice is not justice. "For that is the most unjust thing of all," id enim iniustissimum ipsum est, says Cicero, iustitiae mercedem quaerere, "to seek a reward for justice." De leg., I.49.
Cicero ends his first book of the De legibus by discussing the supreme good, the finis boni. It is, he admits, a matter of controversy among all the philosophers and their different schools. Cicero's brother Quintus is the one who summarizes the Ciceronian teaching and the Academic/Peripatetic (Platonic/Aristotelian) position and the Stoic position:
De leg., I.56. The Socratic/Platonic/Aristotelian school stresses virtue, whereas the Stoic school stresses law. Which emphasis is left for another day among the three participants of the dialogue.
From the discussion of law in its most fundamental form, the parties now turn to how life ought to be lived, and here the focus is on the philosophical life. Wisdom ought to be loved, and the law ought to be learned, for the law is what corrects for vice and encourages virtue. For this, we need to know ourselves as the Delphi oracle declared. A man who searches inward will see in him the spark of divinity in him, a divinum ingeniumque in se, which sets him apart from the cosmos. He will recognize that it is a "great gift of the gods," tantoque munere deorum that he has this quality. This quality will be precious to him, and he will do all he can to develop it. He will also recognize it in those which share his nature. And the peroration of Cicero is long but magnificent, as he sings the praises of philosophy as tutor of all that is good in man:
In fact, later in his dialogue, in Book II, Cicero repeats this notion. It is the divine providence that is apparent in the cosmos, the reason by which all things--the course of the stars and planets, the seasons, the growth of plants and animals--are ordered that is the "proem to the law," legis prooemium, the prelude or precursor to human law.
De leg., II.16.*
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*Plato, Laws 4:722d (νόμους δὲ ἄρτι μοι δοκοῦμεν λέγειν ἄρχεσθαι, τὰ δ᾽ ἔμπροσθεν ἦν πάντα ἡμῖν προοίμια νόμων.) "Yet it is only recently that we have begun, as it seems, to utter laws, and what went before was all simply preludes (prooimia) to laws."
The Three Stooges of the Law per Cicero: Bentham, Austin, and Hart
The most stupid thing of all . . . is to consider all things just which have been ratified by a people's institutions or laws . . . . There is only one justice, which constitutes the bond among humans, and which was established by the one law, which is right reason in commands and prohibitions. . . . And if justice is obedience to the written laws and institutions of a people, and if (as these same people say) everything is to be measured by utility, then whoever thinks that it will be advantageous to him will neglect the laws and will break them if he can. The result is that there is no justice at all if it is not by nature, and the justice set up on the basis of utility is uprooted by that same utility: if nature will not confirm justice, all virtues will be eliminated. . . . To think that these things are a matter of opinion, not fixed in nature is the mark of a madman.
Iam vero illud stultissimum, existimare omnia iusta esse quae scita sint in populorum institutis aut legibus. . . . Est enim unum ius quo devincta est hominum societas et quod lex constituit una, quae lex est recta ratio imperandi atque prohibendi. . . . Quodsi iustitia est obtemperatio scriptis legibus institutisque populorum, et si, ut eidem dicunt, utilitate omnia metienda sunt, negleget leges easque perrumpet, si poterit, is qui sibi eam rem fructuosam putabit fore. Ita fit ut nulla sit omnino iustitia, si neque natura est et ea quae propter utilitatem constituitur utilitate alia conuellitur. Atqui si natura confirmatura ius non erit, virtutes omnes tollantur. . . . .Haec autem in opinione existimare, non in natura posita, dementis est.
De leg., I.42-43, 45. If all is convention, if all is determined by utility, then the law itself will be destroyed by convention or utility. There would be no grounds for liberality, for love of country, for piety, for any selfless acts or acts directed toward the common good. All these acts "arise because we are inclined to love other humans (propensi sumus ad diligendos homines), and that inclination, that diligence or love, is the foundation of justice (fundamentum iuris est)." De leg., I.43.
Justice arises from nature, and not from convention. Therefore, Cicero insists, the decisions of judges, the will of the majority, or the decree of the prince cannot define justice: a judge, a prince, the people cannot make it just to commit adultery, highway robbery, or forge wills. No, nature is above positive law. Indeed, nature is what serves as positive law's standard and judge: "But in fact we can divide good laws from bad laws by no other standard than that of nature." Atqui nos legem bonam a mala nulla alia nisi naturae norma diuidere possumus. De leg., I.44.
Man is no exception to the rule. Just like a horse or a tree is judged with reference to its nature, so man is judged with reference to his nature. We do not argue that a lame horse does not correspond to what a horse ought to be, or that a tree that has tree rot or blight is not living in accord with its nature. Nothing would suggest that man operates under a different rule. "For just as true and false, logical and illogical are judged in themselves and not be external considerations, so to a constant and consistent manner of life, which is virtue, and similarly inconstancy, which is vice, will be judged by their own nature." De leg., I.45. Man's character is judged in reference to virtue and vice, and virtue and vice, including justice and injustice, are judged in reference to nature. To suggest that man is not to be judged by nature, but by opinion, is, ultimately to propose that "men would be happy by opinion--and nothing dumber than that could possibly be said," Nam ni ita esset, beati quoque opinione essemus, quo quid dici potest stultius? De leg., I.46.
Justice, like all the virtues, "seeks no reward and no prize, and thus it is sought for itself," item iustitia nihil expetit praemii, nihil pretii. A man must not apprise justice by the profit in it, or whether it is in his interest, or if there be reward in it. If not cultivated for itself, then justice is not justice. "For that is the most unjust thing of all," id enim iniustissimum ipsum est, says Cicero, iustitiae mercedem quaerere, "to seek a reward for justice." De leg., I.49.
Cicero ends his first book of the De legibus by discussing the supreme good, the finis boni. It is, he admits, a matter of controversy among all the philosophers and their different schools. Cicero's brother Quintus is the one who summarizes the Ciceronian teaching and the Academic/Peripatetic (Platonic/Aristotelian) position and the Stoic position:
But certainly it is the case that it is the highest good either [according to the Platonic/Aristotelian schools] to live in accordance with nature, that is, to enjoy a moderate life equipped with virtue, or [according to the Stoics] to follow nature and live in accordance with what can be called its law, that is insofar as possible to do everything to accomplish the demands of nature, who wishes us to live in accordance with virtue as if it were a law.
De leg., I.56. The Socratic/Platonic/Aristotelian school stresses virtue, whereas the Stoic school stresses law. Which emphasis is left for another day among the three participants of the dialogue.
From the discussion of law in its most fundamental form, the parties now turn to how life ought to be lived, and here the focus is on the philosophical life. Wisdom ought to be loved, and the law ought to be learned, for the law is what corrects for vice and encourages virtue. For this, we need to know ourselves as the Delphi oracle declared. A man who searches inward will see in him the spark of divinity in him, a divinum ingeniumque in se, which sets him apart from the cosmos. He will recognize that it is a "great gift of the gods," tantoque munere deorum that he has this quality. This quality will be precious to him, and he will do all he can to develop it. He will also recognize it in those which share his nature. And the peroration of Cicero is long but magnificent, as he sings the praises of philosophy as tutor of all that is good in man:
And when he has studied the heaven, lands, seas, and the nature of all things, and has seen where they come from and where they are going and when and how they will perish, what in them is mortal and bound to die, what is divine and eternal; and when he has (so to speak) got a grip on the God who guides and rules these things (et regentem deum paene prenderit) and has recognized that he is not bound by human walls as the citizen of one particular spot but a citizen of the whole world as if it were a single city (sed civem totius mundi quasi unius urbis agnoverit)--then in this perception and understanding of nature, by the immortal gods, how he will know himself, as Pythian Apollo commands, how he will scorn an despise and think as nothing all those things which are commonly called magnificent! And he will fortify all these things as if by a fence through the method of argument, the knowledge of judging true and false, the science of understanding logical consequences and contradictions. And when he realizes that he is born for civil society, he will realize that he must use not just that refined type of argument but also a more expansive style of speaking, through which to guide peoples, to establish laws, to chastise the wicked and protect the good, to praise famous men and to issue instructions for safety and glory suited to persuading his fellow citizens, to exhort people to honor, to call them back from crime, to be able to comfort the afflicted, to enshrine in eternal memorials the deeds and opinions of brave and wise men together with the disgrace of the wicked. And all these great an numerous things which are recognized as present in man by those who wish to know themselves, the parent and teacher of them all is philosophy.De leg., I.60-62.
In fact, later in his dialogue, in Book II, Cicero repeats this notion. It is the divine providence that is apparent in the cosmos, the reason by which all things--the course of the stars and planets, the seasons, the growth of plants and animals--are ordered that is the "proem to the law," legis prooemium, the prelude or precursor to human law.
What is more true than that no one ought to be so stupid and arrogant as to think that he has reason and a mind but not to believe the same of the heavens and the universe? Or to think that things which are barely understood by the greatest intelligence and reason are moved without reason? Anyone who is not compelled to be grateful by the order of the stars, the alternations of day and night, the balance of the seasons, the crops which grow for our enjoyment--why is it proper for someone like that to be counted human at all? And since all things endowed with reason are superior to those which lack reason, and since it is wrong to say that anything is superior to the natural universe, it must be admitted that the universe has reason. Who could deny that such opinions are useful when he understands how many things are secured by oaths, how conducive to safety are the religious guarantees of treaties, how many people have been kept from crime by the fear of punishment, how holy the bond of citizens one with another is, with the presence of the immortal gods as judges or as witnesses? This is the proem to the law, to use Plato's term.
De leg., II.16.*
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*Plato, Laws 4:722d (νόμους δὲ ἄρτι μοι δοκοῦμεν λέγειν ἄρχεσθαι, τὰ δ᾽ ἔμπροσθεν ἦν πάντα ἡμῖν προοίμια νόμων.) "Yet it is only recently that we have begun, as it seems, to utter laws, and what went before was all simply preludes (prooimia) to laws."
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