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.

Friday, December 10, 2010

Natural Law in Cicero's De republica

MARCUS TULLIUS CICERO, "Tully" as he is known to his English-speaking friends, was Republican Rome's great advocate of the philosophy of natural law. He was, one must probably accede, not the most original thinker, but that is not necessarily a fatal defect in the area of morals. His facility of expression, his rhetorical power, the ebullience of his devotion to the natural law, the genius in his packaging all make up for any deficiency in his originality. His greatest contribution to the doctrine of natural law then cannot be said to be in some new insight. His great contribution is in remolding the Platonic/Aristotelian/Stoic thinking on the natural law, a teaching largely found in Greek sources, so as to Latinize it for his Roman countrymen in a manner they could readily comprehend. So Latinized, it entered into the blood of jurists to thicken it, until relative modern times where the Ciceronian corpuscles seems to have been thinned out by a sort of intellectual transfusion with Positivistic platelets.

Cicero's devotion to the natural law is already found in some of his early writings, before he devoted himself to the philosophical project as an adult. For example, in is found already solid in his youthful work De inventione Rhetorica. Cicero finds virtue to be a "habit of the mind [in tune] with nature," virtus est animi habitus naturae. II.53.159. One of the virtues is, of course, justice, and justice is a "habit of the soul which accords a fitting dignity to everything, conserving a due regard to the general welfare." (Iustitia est habitus animi communi utilitate conservata suam cuique tribuens dignitatem.) Like the genus virtue, of which justice is one species, justice's "initial principle proceeds from nature," eius initium est ab natura profectum. Finally, the "natural right is," according to Cicero, "that which has not born with the opinions of men, but has been implanted by some innate power, like religion, piety, gratitude, vindication, obedience to one's superiors, truth." Naturae ius est, quod non opinio genuit, sed quaedam in natura vis insevit, ut religionem, pietatem, gratiam, vindicationem, observantiam, veritatem. II.53.161. So here is the full Monty of morality already in the young Cicero: virtue to justice to natural law.

Marcus Tullius Cicero

By the time Cicero undertakes his more ambitious philosophical project in his later years, Cicero begins with the conviction, a conviction we see that he had in his youth, that the practical life was under a regulatory order, an order of nature (natura), an order that deployed itself in ontological, anthropological, and moral dimensions. The natural law (lex naturae), a law that governed the moral life of man, was not to be viewed as something separate from a general philosophy of man or a comprehensive view of reality, but was to be seen as springing forth from these foundations, as a tree branch from the trunk. It intimately affected both man's individual and his social relations.

Dream of Scipio by Raphael

This sort of view is clearly comprehended by his works on political philosophy, De republica (On the Commonwealth) and De legibus (On Laws). We shall look at Cicero's De republica in this posting, and the De legibus in the next several postings.

Cicero wrote his dialogue on Roman politics De republica between 54 and 51 B.C. Composed of six books, De republica explores forms of government within the context of justifying moral ordering in practical life and in the public life. Alas, this philosophical work which is in the form of a dialogue, survives only in part, found by chance as a palimpsest in 1822 in a Vatican Library manuscript under some text of St. Augustine, and that surviving part has been supplemented from random other sources--a pastiche of Nonius, Lactantius, Augustine and others who quoted or referred to the Ciceronian work, so there are huge gaps in our patrimony. Be that as it may, in those excerpts of the De republica we do have Cicero presents a group dialogue between Scipio Aemilianus, or Scipio Africanus Minor, and a variety of other participants, including Gaius Fannius, Gaius Laelius, Manius Manilius, Quintus Mucius Scaevola, Spurius Mummius, Lucius Furius Philus, Publius Rutilius Rufus, and Quintus Aelius Tubero.

The dialogue takes place in Campus Martius, in Scipio's country estate outside Rome, over three days during the Latin holidays or Feriae Latine, with two books devoted to each day. The sun is in the throes of an eclipse, perhaps symbolic of the eclipse of Republican values as Rome turned empire. The first two books deal with Constitutional theory. The second two books deal with the issue of justice and its function in civil life, and in this section the natural law features prominently, particularly as advanced by the protagonist Laeilius, Scipio's intimate as there was "something like a law between them in their friendship," fuit enim hoc in amicitia quasi quoddam ius inter illos. De rep., I.18. The last book contains the famous passage in which Scipio describes a dream. This is the Somnium Scipionis or "Scipio's Dream" in which Scipio is visited by his dead adoptive grandfather, Scipio Africanus, the great hero of the Second Punic War, and is the vehicle for Cicero to present his cosmological vision which emphasizes the important of an eternal life and final judgment in the scheme of morals and the political life. It is, of course, modeled after Plato's Myth of Er which is to be found in the latter's work The Republic, and which through Macrobius's Commentary had such large influence upon the middle ages, including the likes of Boethius, Dante, and Chaucer. We find it in art, as the subject of Raphael's brush and the music of the young Mozart (see the opera Il sogno de Scipione, K. 126).

On the Commonwealth [the De republica] was the first, and perhaps the only, serious attempt by a Roman to analyze the structure and values of republican government and imperial rule. In adapting Platonic and Aristotelian theories based on the small, self-contained, and relatively homogeneous society of the polis to the conditions of the Roman imperium, Cicero made use of Stoic ideas of the cosmopolis and of natural law to develop a complex and ambitious argument, linking the traditional values and institutions of republic Rome on the one hand to the Aristotelian ideas of civic virtue and on the other to the order of the universe itself. Stoic moral theory made it possible for Cicero to construct an image of society ruled not by a Platonic intellectual elite . . . but by all those whose recognition of their own moral capacities, as part of a cosmic whole, led them to contribute to the creation and preservation of a society which reflected and incorporated the natural justice of the universe.

De rep., xvii-xviii.*

Among the participants of Cicero's dialogue De republica, we find in general two models of human existence, of moral and political reality. The first, espoused by Scipio Aemilianus and Gaius Laelius is based upon a natural law philosophy, and seeks to base both moral and political life on some extra-human, even cosmological standard. The second theory, advanced by Lucius Furius Philus, a Machiavellian avant la lettre, rejects such extra-human standard and insists that all standards are conventional and relative, and that justice "is something civil and not natural at all," ius enim de quo quaerimus civile est aliquod, naturale nullum, that "nature . . . is [not] the mother of justice," iustitiae non natura . . . mater est. III.13, 23. Philus, as St. Augustine in his De civitate Dei put it "gave a careful presentation of he case of injustice against justice." De civ. Dei, 2.21 (egitque sedulo pro iniustitia contra iustitiam).

Scipio Aemilianus finds the foundation of justice and law in the order of things, and order which is based upon reason or mind (mens). It is, in fact, the same ratio ordinis that founds the central core of Thomistic natural law. Scipio Aemilianus finds his mentors not with those who would found their politics on legend or on myth, but with those who would found their politics on the recognition of an order or mind which governs the entirety of reality:
LAELIUS: And who are those instructors?
SCIPIO: Men who, through their investigation of the universe, have recognized that this entire world is ruled by a single mind (qui natura omnium rerum pervestiganda senserunt omnem hunc mundum mente).
De rep., I.57. Scipio is convinced of such an a natural order, divine and eternal, which must serve as the basis for moral and political life. It is nature itself which compels us to live in common: idque ipsa natura non invitaret solum sed etiam cogeret. De rep., I.39b. It is nature herself which provides the law for such common life. "He alone can truly claim all things as his own, not under the law of the Roman people, but by the common law of nature (nec civili nexo sed communi lege naturae) . . . ." De rep., I.27. The law of Rome qua law of Rome is parochial. There is a law that is wholly beyond the law of Rome and which frees man from the limited focus of his time and place. There is a reality beyond this world that is not subject to the vicissitudes, the perishability, the vanity, of the mundane, but is eternal, lasting, divine.
What power, what office, what kingdom can be grander than to look down on all things human and to think of them as less important than wisdom, and to turn over in his mind nothing except what is eternal and divine?

Quod autem imperium, qui magistratus, quod regnum potest esse praestantius, quam despicientem omnia humana et inferiora sapientia ducentem nihil umquam nisi sempiternum et divinum animo volutare?
De rep., I.28. This eternal, divine Reason or Mind is the "ontic plane," that is the basis of all natural order in the world and all moral life. Estrada, 12. It is this divine Reason which diffuses itself throughout all existence.

This view of reality is what informs law, and it is most earnestly argued by Scipio's friend Laelius. As Zetzel puts it in his introduction to Cicero's work:
Laelius advances a very different argument in favor of justice. This speech is unfortunately very fragmentary: but it is clear that Laelius argued in Stoic terms from the existence of natural affection to the existence of natural and permanent moral values, and thus to natural law defined as right reason and explained as a fundamental feature of the structure of the cosmos itself.
De rep., xiv. It is during the course of the Laelian's teaching that we can have this encapsulation of the Ciceronian doctrine in this paean to the natural law:

True law is right reason, consonant with nature, spread through all people. It is constant and eternal; it summons to duty by its orders, it deters from crime by its prohibitions. Its order and prohibitions to good people are never given in vain; but it does not move the wicked by these orders or prohibitions. It is wrong to pass laws obviating this law; it is not permitted to abrogate any of it; it cannot be totally repealed. We cannot be released from this law by the senate or the people, and it needs no exegete or interpreter like Sextus Aelius.** There will not be one law at Rome and another at Athens, one now and another later; but all nations at all times will be bound by this one eternal and unchangeable law, and the god will be the one common master and general (so to speak) of all people. He is the author, expounder, and mover of his law; and the person who does not obey it will be in exile from himself. Insofar as he scorns his nature as a human being, by this very fact he will pay the greatest penalty, even if he escapes all other things that are generally recognized as punishments.

Est quidem vera lex recta ratio, naturae congruens, diffusa in omnes, constans, sempiterna, quae vocet ad officium iubendo, vetando a fraude deterreat, quae tamen neque probos frustra iubet, aut vetat, nec improbos iubendo aut vetando movet. Huic legi nec obrogari fas est, neque derogari ex hac aliquid licet, neque tota abrogari potest; nec vero aut per senatum, aut per populum solvi hac lege possumus; neque est quaerendus explanator aut interpres eius alius; nec erit alia lex Romae, alia Athenis, alia nunc, alia posthac: sed et omnes gentes et omni tempore una lex et sempiterna et immutabilis continebit, unusque erit communis quasi magister et imperator omnium deus, ille legis huius inventor, disceptator, lator; cui qui no parebit, ipse se fugiet, ac naturam hominis aspernatus hoc ipso luet maximas poenas, etia si cetera supplicia, quae putantur, effugerit.
De rep., III.33 [cf. Lactantius, Inst., VI.8, 6-9]

Cicero mined for his philosophy in the rich veins of the Socratic-Platonic idealistic tradition, taken up an modified by Aristotle and the Stoics. He brings this precious intellectual tradition and melds it into tight and orderly Latin philosophical ingots. There are two phases or emphases. The first is the notion of the virtuous man. The second relates to the divine or eternal founding of the world's order, an immutable backing behind a world that is subject to mutability. This divine or eternal reason is the source of law even in the mutable world, and it defines the good, thereby reaching back to define what is virtuous.
This concept of reality bespeaks a teleology constitutive of a natural universal order, in which Cicero has brought about the convergence of two of the most salient teleological theories of Antiquity, namely Platonism and Stoicism; which, beyond undeniable differences in doctrine . . . share the vision of a cosmos that has been penetrated in its whole by divine rationality.
Estrada, 13. Even here, Cicero was not original. It is clear that this blend was part of the teachings of Antiochus of Ascalon, scholarch of Plato's Academy, "who, in an effort to make the school's approach return to its initial identity, fused together into a common heritage the teachings of Plato with those of Aristotle and the Stoics, as documented by Cicero himself." Estrada, 13.

For Cicero, human nature is not something separate and apart from the nature of the cosmos, but is integrally tied to it. Cicero's appeal to nature is "an appeal to nature considered as a whole, and to human nature, as part of that whole, in the justificatory way of moral order." Estrada, 13.

This vision of the nature of man fitted into nature as a whole and linked to divine and eternal reason is what gives the human soul a sort of divinity or dignity. This is the impetus behind Scipio's Dream, where the human soul, following Platonic paradigms, is given a divine origin, which means that man has an eternal destiny beyond that of this world. It is this eternal destiny which he ought to keep in mind when he lives his life on earth. He must live his life on earth sub specie aeternitatis.

There is in man, then a sort of seed or inclination, an "inchoate 'humanitas' that reveals itself in his specific natural inclinations." Estrada, 13-14. It is these inclinations that virtually compel man's need to live virtuously (necessitas virtutis), living for others, open to love (amor) and to the common good. Hos definio, tantam esse necessitate virtutis generi hominum a natura tantumque amorem ad communem salute defendendam datum. "I make this one assertion," Cicero begins his dialogue, "nature has given men such a need for virtue and such a desire [love] to defend the common safety that this force has overcome all the enticements of pleasure and ease." De rep.I.1. It is for this reason that man is "strongly drawn to try to increase the resources of the human race," "eager to make human life safe and better by our plans and efforts." "It is the spur of nature herself that goads us on to this pleasure." Ad hanc voluptatem ipsius naturae stimulis incitamur. De rep. I.3. It is the following of this inclination, this natural law, that leads us into eternal life if there is any hope for one. Cicero is no Hobbesian.

Cicero has a noble view of man, and as we have written before, it was, with baptism proper to anyone encountering Christ, injected into the heart of the New Testament by St. Paul. The old Platonic, Aristotelian, Stoic, Ciceronian wine was put into the new wineskin of the New Testament by the master evangelic and apostolic vintner, St. Paul. And in this he did well, and we trust that it was inspired by the Holy Spirit. For Jesus taught that new wine should not be put into old wineskins, and he taught that new wine should be put into new wineskins. (Matthew 9:14-17, Mark 2:18-22, Luke 5:33-39.) But the Lord did not teach that old wine could not be put into new wineskins. And St. Paul seized on that liberty, and did so in his great Epistle to the Romans (cf. Rom. 2:14), and we are still drinking the delight of that inexhaustible vintage and shall until the end of time.

We do, however, wish the rest of the world were drinking with us, for they would be in far better company than they're with, and there would be far more rejoicing, and much less sorrow, on account of the better wine. We are in a time like the characters of Cicero's dialogue De republica where the sun of the natural moral law is eclipsed. It is time for the eclipsing of moral values of the natural law to end. Then shall the Catholic sun shine unabated with Bellocian glee:
Wherever the Catholic sun doth shine,
There’s always laughter and good red wine.
At least I’ve always found it so.
Benedicamus Domino!
*All cites and quotations of Cicero's De republica are taken from Cicero, On the Commonwealth and On the Laws (James E. G. Zetzel, ed.) (Cambridge: Cambridge University Press, 1999). I have also drawn on Laura E. Corso de Estrada, "Marcus Tullius Cicero and the Role of Nature in the Knowledge of Moral Good," in Natural Law: Historical, Systematic, and Juridical Approaches (Newcastle: Cambridge Scholars Publishing, 2008), 9-22 (herein "Estrada")
**Sextus Aelius Paetus Catus (fl. 198-194 B.C.) or Sextus Aelius was a Roman Republican consul, elected to that post in 198 B.C. He was highly regarded as a result of a commentary on the Twelve Tables, the traditional laws of Rome. Sextus Aelius's elder brother, Publius Aelius Paetus, was also a consul and famous jurist.

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