IN BOOK TWO OF CICERO'S DE LEGIBUS, Atticus, Quintus, and Cicero move to an small island in the Fibrenus river about the size of a small palaestra, or sports arena. Before Cicero gets into the specifics of law, he recapitulates. Like a poet, who invokes the Muses, or, even he behind the Muses, invokes "from Jupiter the beginnings of song," so a jurist must invoke "Jupiter" as the source of law. The gods, then, are in charge of poetry and law. This is because law is, at its source, divine:
De leg., II.8. Law, then, unlike fire, was not stolen from the gods as if by some Promethean act of hubris. Law was a gift, part of the largess of the gods, part of what the gods intended for man. It is in fact something that men share with the gods. Men, to be sure, make their laws, as they did the Twelve Tables, the most basic foundation of Roman law. But there is a law more ancient, more noble, more fundamental than even the most sacred of all Roman laws.
Publius Horatius Cocles Defending the Sublicius Bridge: Following Natural Law
There is a law "coeval with the God who protects and steers the earth," aequalis illius caelum atque terras tuentis et regentis dei. De leg., II.9. This heavenly law is not written, but it has the force of law. It is this law that governed the courageous Horatius Cocles or that condemned Sextus Tarquinius's rape of Lucretia.
Rape of Lucretia by Simon Vouet: Disobeying Natural Law
In fact the laws of men--the laws of human judges, human legislators, human princes--are not the preeminent example of law, but are law by participation, by "courtesy," by favor only: Quae sunt autem varie et ad tempus descriptae populis, favore magis quam re legum nomen tenent. ("The legislation that has been written down for nations in different ways and for particular occasions has the name of law more as a matter of courtesy than as a fact.") De leg., II.11. This is because the definition of law includes "choosing something just and right," in ipso nomine legis interpretando inesse vim et sententiam iusti et veri legendi. De leg., II.11. Therefore human laws are to have as their aim the common good, the safety of the state, the promotion of well-being and virtuous life of its citizens. Human laws are not laws at all if they are destructive or unjust to the people they intend to bind. Laws that damage and destroy are no more laws than rules among thieves. Quid quod multa perniciose, multa pestifere sciscuntur in populis, quae non magis legis nomen adtingunt, quam si latrones aliqua consensu suo sanxerint? Cicero asks rhetorically. De leg., II.12. They are no more to be called laws, than a wicked or ignorant doctor's poisons are to be called medicine. Cicero repeats:
Given such a definition, neither laws of Titius and Appuleius nor the laws of Livius,* are to be considered laws at all. Human laws have to conform to the natural law, or they are not laws at all, and it matters not the motive of the legislator who trespasses the natural law.
From here, Cicero begins to particularize and enters into specific laws relating to Roman religious and civil life which will occupy the remainder of Book II and the greater part of Book III.
From this point, we shall politely beg leave from the dialogue of the Roman friends, and we shall leave the pleasant little island in the Fibrenus at a time shortly before the coming of Christ, to return to the 21st century to a time and a place where we eat of the evil fruit, an evil fruit that comes from having rejected the Ciceronian vision of natural law and its interaction with the positive law. We have traded the Ciceronian tradition for a positivism in law, a legal positivism which both Cicero and our Founding Fathers and everyone in between would have found a recipe for tyranny, arbitrary rule, and the inculcation of vice and injustice.
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*During their tribunates, Sextus Titius (ca. 99 B.C.) and his predecessor, Lucius Appuleius Saturninus (died ca. 100 B.C.), attempted to pass radical agrarian laws in the spirit of the Gracchi brothers which, in Cicero's view, apparently trespassed on property rights. Marcus Livius Drusus, tribune in 91 B.C., was of a similar radical reforming spirit.
[L]aw was not brought up by human minds; that it is not some piece of legislation by popular assemblies; but it is something eternal which rules the entire universe through the wisdom of its commands and prohibitions. Therefore, they said, that first and final law is the mind of God who compels or forbids all things by reason. From that cause, the law which the gods have given to the human race has rightly been praised: it is the reason and mind of a wise being, suited to command and prohibition.
Legem neque hominum ingeniis excogitatam, nec scitum aliquod esse populorum, sed aeternum quiddam, quod universum mundum regeret imperandi prohibendique sapientia. Ita principem legem illam et ultimam mentem esse dicebant omnia ratione aut cogentis aut vetantis dei. Ex quo illa lex, quam di humano generi dederunt, recte est laudata: est enim ratio mensque sapientis ad iubendum et ad deterrendum idonea.
De leg., II.8. Law, then, unlike fire, was not stolen from the gods as if by some Promethean act of hubris. Law was a gift, part of the largess of the gods, part of what the gods intended for man. It is in fact something that men share with the gods. Men, to be sure, make their laws, as they did the Twelve Tables, the most basic foundation of Roman law. But there is a law more ancient, more noble, more fundamental than even the most sacred of all Roman laws.
Publius Horatius Cocles Defending the Sublicius Bridge: Following Natural Law
There is a law "coeval with the God who protects and steers the earth," aequalis illius caelum atque terras tuentis et regentis dei. De leg., II.9. This heavenly law is not written, but it has the force of law. It is this law that governed the courageous Horatius Cocles or that condemned Sextus Tarquinius's rape of Lucretia.
Reason existed, derived from nature, directing people to good conduct and way from crime; it did not begin to be a law only at the moment when it was written down, but when it came into being; and it came into being at the same time as the divine min. And therefore that true and original law, suitable for commands and prohibitions, is the right reason of Jupiter, the supreme god.De leg., II.10. That law, which is divine in fons et origo, in its fount and origin, is also found in man, enfleshed as it were. It is found in semine, in seed, perhaps in all men. But it is found in full flower also in the mind of wise men, in mente sapientis.
Erat enim ratio, profecta a rerum natura, et ad recte faciendum inpellens et a delicto avocans, quae non tum denique incipit lex esse quom scripta est, sed tum quom orta est. Orta autem est simul cum mente divina. Quam ob rem lex vera atque princeps, apta ad iubendum et ad vetandum, ratio est recta summi Iovis.
Rape of Lucretia by Simon Vouet: Disobeying Natural Law
In fact the laws of men--the laws of human judges, human legislators, human princes--are not the preeminent example of law, but are law by participation, by "courtesy," by favor only: Quae sunt autem varie et ad tempus descriptae populis, favore magis quam re legum nomen tenent. ("The legislation that has been written down for nations in different ways and for particular occasions has the name of law more as a matter of courtesy than as a fact.") De leg., II.11. This is because the definition of law includes "choosing something just and right," in ipso nomine legis interpretando inesse vim et sententiam iusti et veri legendi. De leg., II.11. Therefore human laws are to have as their aim the common good, the safety of the state, the promotion of well-being and virtuous life of its citizens. Human laws are not laws at all if they are destructive or unjust to the people they intend to bind. Laws that damage and destroy are no more laws than rules among thieves. Quid quod multa perniciose, multa pestifere sciscuntur in populis, quae non magis legis nomen adtingunt, quam si latrones aliqua consensu suo sanxerint? Cicero asks rhetorically. De leg., II.12. They are no more to be called laws, than a wicked or ignorant doctor's poisons are to be called medicine. Cicero repeats:
Law, therefore, is the distinction between just and unjust things, produced in accordance with nature, the most ancient and first of all things, in accordance with which human laws are constructed which punish the wicked while defending and protecting the good.De leg., II.13.
Ergo est lex iustorum iniustorumque distinctio, ad illam antiquissimam et rerum omnium principem expressa naturam, ad quam leges hominum diriguntur, quae supplicio inprobos adficiunt, defendunt ac tuentur bonos.
Given such a definition, neither laws of Titius and Appuleius nor the laws of Livius,* are to be considered laws at all. Human laws have to conform to the natural law, or they are not laws at all, and it matters not the motive of the legislator who trespasses the natural law.
From here, Cicero begins to particularize and enters into specific laws relating to Roman religious and civil life which will occupy the remainder of Book II and the greater part of Book III.
From this point, we shall politely beg leave from the dialogue of the Roman friends, and we shall leave the pleasant little island in the Fibrenus at a time shortly before the coming of Christ, to return to the 21st century to a time and a place where we eat of the evil fruit, an evil fruit that comes from having rejected the Ciceronian vision of natural law and its interaction with the positive law. We have traded the Ciceronian tradition for a positivism in law, a legal positivism which both Cicero and our Founding Fathers and everyone in between would have found a recipe for tyranny, arbitrary rule, and the inculcation of vice and injustice.
___________________________
*During their tribunates, Sextus Titius (ca. 99 B.C.) and his predecessor, Lucius Appuleius Saturninus (died ca. 100 B.C.), attempted to pass radical agrarian laws in the spirit of the Gracchi brothers which, in Cicero's view, apparently trespassed on property rights. Marcus Livius Drusus, tribune in 91 B.C., was of a similar radical reforming spirit.
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