Reece Edmunds, Princeton University
My paper reinterprets the natural-law arguments employed by Cicero in Philippics 10 and 11. In these two speeches, delivered before the Senate in early 43, Cicero proposed sweeping military commands for his allies Brutus and Cassius respectively. On both occasions, Cicero’s opponents accused Brutus and Cassius of acting without senatorial authorisation and, in particular, with entering another governor’s province. Cicero defended them not by citing legal loopholes but by appealing to the superiority of natural law. In grand philosophical style, he declared, for instance, in Phil. 11.28 that Cassius followed ‘the law which Jupiter himself has sanctioned… for law is nothing other than right reason, commanding honourable things, forbidding the contrary’. His language is reminiscent of the definition of law in De Legibus 1.18: ‘the highest reason, implanted in nature, which commands what ought to be done and forbids the opposite’.
Scholarly interest in these two speeches has always been limited. Cicero’s appeal to nature is typically regarded (eg. Harries 2006, 224-228, Manuwald 2007, 99-100, Gildenhard 2011, 194-195, Straumann 2016, 116-117) as symptomatic of his wholesale abandonment of positive law by this stage in the crisis of the forties. Scholars tend to believe that Cicero’s philosophical treatises, chiefly De Legibus, advanced the Stoic position that natural law was the only true law. As such, they have few qualms about inferring the same doctrine from the Philippics (Gildenhard 2011, 194: Cicero ‘quotes Stoic idiom almost verbatim’).
I propose a new, more constitutionalist, understanding of Cicero’s position. In my view, neither speech proposed ignoring positive law altogether in favour of nature. Rather, both speeches, which ended with the texts of proposed legal resolutions, advocated the creation of new positive legislation, modelled on the natural law illuminated by the virtuous actions of Brutus and Cassius during the state of emergency created by Antony’s overthrow of the constitution. The emphasis which Cicero placed on the philosophical virtus of Brutus (and to a lesser extent Cassius) in these speeches was unusual. Cicero's point, I argue, was that these virtuous individuals were peculiarly capable of responding to the commands of reason and nature, but that the res publica required that their activities be incorporated into a normal constitutional framework, in order that law might have once again have normative value for ordinary human beings.
My argument is influenced by the reinterpretation of De Legibus by Atkins (2013), which argues along Platonic lines that the fundamental laws of Cicero’s regime are impermanent ones designed for use by human beings. Insofar as they have the capacity to distinguish between justice and injustice, they are modelled on natural law, but they have been modified for human nature. Cicero's appeal to nature in these two speeches needs to be examined again in light of Atkins’ insights.