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18.3.Atkins

Despite much recent interest in Roman philosophy and ancient theories of natural law, Cicero’s De legibus remains an underutilized and puzzling dialogue. Recent commentators have been especially troubled by the seemingly obscure relationship between the account of natural law in Book 1 and the religious and constitutional laws that occupy the rest of the extant dialogue (cf. Zetzel 1999, Atkins 2000, Dyck 2004, Inwood 2007; for a more positive assessment, cf. Asmis 2008). In this paper I illuminate the relationship that obtains between these different types of law. The key lies in recognizing that on this specific matter Cicero’s chief source of inspiration is not (as usually supposed) the Stoics, but rather Plato’s Laws.

I begin by briefly sketching the different stances that Plato and the early Stoics took towards ideal or natural law and non-ideal or human law. In his Laws Plato suggests that the laws of his second-best city are authoritative because they are the closest possible approximation of “right law” (orthos nomos) that is in accord with “right reason” (orthos logos) (cf. 714a, 890d). The early Stoics, however, insist that only right law counts as law. Laws of ordinary states that fall short of this standard do not qualify as laws (cf. SVF 3.325).

After these preparatory remarks I turn to De legibus and focus on the crucial section at the beginning of Book 2 which marks the transition from the discussion of natural law to the particular laws of the legal code (2.11-14). Scholars typically hold that in this section Cicero endorses the Stoic position that law must meet the standards of natural law in every detail to count as law. As a consequence, Cicero is saddled with the following dilemma: either he adopts the incredible position that his own law code drawn mostly from Roman custom and law is the complete reflection of natural law or he must concede that his legal code does not merit the designation law. However, a careful reading of this section with due attention to both the characterization and drama of the dialogue reveals that while this position is entertained by one of the participants (Cicero’s brother Quintus), the reader is ultimately discouraged from endorsing it. Instead, Cicero follows Plato in granting authority to law that is the best possible approximation to ideal natural law once it is adapted to meet human needs. When natural law is applied to humans, it is necessarily altered. In the human realm permanence becomes contingent and the general precepts of nature become more specific.

This teaching is applied and illustrated in the later discussion of the religious and constitutional laws. In the third section of the paper I look at one or two examples. Of particular interest is the discussion in the third book about the powers to be granted to the tribunate (3.19-26). An extended debate not only shows that the laws of the ideal code must accommodate constraints imposed by present conditions, but reveals that the source of this teaching is Plato’s Laws. I conclude by showing how this principle of accommodation not only obtains between the natural law of Book 1 and the general laws of Cicero’s law code, but also between these latter laws and the still more specific ius civile, a subset of law which is discussed in the extent text only briefly. This tripartite division of law adds further plausibility to the Platonic position that conventional human laws may enjoy the sanctions of nature. De legibus, then, should be seen as a seminal and coherent attempt to address at some length the relationship between natural and positive law—a problem central to natural law theories ancient and modern.

Bibliography

  • Asmis, Elizabeth. "Cicero on Natural Law and the Laws of the State." Classical Antiquity 27 (2008): 1-33.
  • Atkins, Margaret. "Cicero." In C. Rowe and M. Schofield et al. eds., The Cambridge History of Greek and Roman Political Thought. Cambridge: Cambridge University Press, 2000, 477-516.
  • Dyck, Andrew. A Commentary on Cicero, De legibus. Ann Arbor: University of Michigan Press, 2004.
  • Inwood, Brad and Fred D. Miller, Jr. "Law in Roman Philosophy." Treatise of Legal Philosophy and General Jurisprudence. vol. 6. Dordrecht: Kluwer Publishing, 2007, 133-65.
  • Zetzel, James. Cicero: On the Commonwealth and on the Laws. Cambridge: Cambridge University Press, 1999.

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