cicero and de re publica and de legibus and jurisprudence

Just as I have felt free to criticize the editors of our text when they have presented material unhelpfully (such as the Laws of Hammurabi and the Nicomachean Ethics), so I will commend them for their excerpts from Cicero's two major jurisprudential words: De re publica (On the Commonwealth) and De legibus (On the Laws). The excerpts from both texts present in stark contrast what I consider to be the most important jurisprudential debate in Western civilization: on the definition of and value of just vs. unjust conduct or, in other words, 'Why should I live a good/just life?' The purpose of this essay is to lay out some of the points made by each side in this perennial debate through my observations and questions.

A Word on Cicero

Cicero was one of the most illustrious Romans of the first century BCE. Though he wasn't born into a traditional aristocratic family, he won the admiration of the powers that be through skillful oratory and exposure of corruption through the 80s BCE. Elected consul, the highest rank in the Roman Republic, in 64 BCE, he exposed the conspiracy of Cataline and personally approved the execution of many he thought were conspirators. But this action also earned him the enmity of many and he was forced into exile in the 50s, returning to Rome only late in the decade. With political options closed to him, Cicero took up writing and captured for us in about 30 works some of the leading ideas of Greek thinkers three to four centuries before his time.

When Cicero began his career Greek philosophy, poetry, epic literature and rhetoric had not really made its way into Roman intellectual circles. However, with the conquest of Athens by Sulla in 88 BCE and the growing influence of Rome in the Eastern Mediterranean, the Greek literature, philosophy and ideas entered into Rome. Especially influential for Cicero were Plato and Aristotle. He admired so much the dialogue form of Plato that he put De re publica (from which our first excerpts are taken) as well as De legibus in a dialogue form. In addition, some of Plato's material in the Republic, especially from Books 1 and 2, is evident in De re publica, even though Cicero is not as eloquent or colorful a writer as Plato.

There is one more historical point about De re publica that those of us who confine our study to modern texts or cases don't understand very well. De re publica consists of six books, the first two of which primarily exist in only one manuscript from antiquity. But this manuscript is a palimpsest, which means that it was erased and another text, in this case a copy of Augustine's Commentary on the Psalms, was written over it. Thus, to understand the original text, one needed to peel away or "read through" the text of Augustine. One other interesting point is that the MS was not discovered until 1819 in the Vatican Library. All kinds of interesting questions can be proposed. How did it end up there? How long had it been there? What was the history of the Vatican's collecting MS in such a way that they were only gradually "discovered?" What remains to be discovered?

De re publica--Philus

The debate in this work and in De legibus centers on whether law and justice are something, as it were, built into the structure of the universe or whether law and justice are simply conventions and are called law and justice because it benefits someone in power to call them so. This debate is really the major theme of Plato's Republic. In that work it was Thrasymachus who took the position that justice is simply "the advantage of the stronger," i.e., is whatever the strong people in society can get away with. Socrates argued the contrary--that justice was something that was one of the eternal "forms," and that the best life was one that was lived with justice as one's guide. Cicero wants to create this debate for Latin readers about 330 years after Plato first did it for Greek readers. Thus, that we didn't study the Republic in this class is only a minor tragedy.

As the dialogue unfolds we have each of two speakers take the opposite position on the question. First it is Philus who argues. We join him right in the middle of his argument:

"[M]en ordain laws for themselves in accordance with utility, that is to say they vary in accordance with customs and have frequently been altered by the same people in accordance with the times; there is no such thing as natural law. All men and all other animate creatures are drawn to their own utility under the guidance of nature; and furthermore, either there is no justice at all, or if there is any, it is the highest stupidity, since it would harm itself in looking after the interest of others" (p. 70).

Here are some questions that we will deal with in class on 9/7.

1. What are the main points made by Philus not only in this paragraph but in the rest of his speech?

2. What is meant by the concept of utility?

3. I will hand out in class the famous excerpt from Book II of the Republic called the fable of The Ring of Gyges. After we read it together, ask yourself whether you, too, would behave like the servant who came across the ring.

4. The impression given on p. 71 is that Rome's imperialistic expansion really was not something that resulted from justice but rather from "wisdom" (i.e., prudence/wisdom/utility are all used synonymously). Is that inevitably the way it is..that utility, rather than justice, is really at the heart of expansionistic impulses?

Hearing from Laelius

In the remainder of the De re publica excerpt, Laelius speaks. The excerpt that follows from De legibus is consistent with Laelius' position.

1. You are immediately in a different intellectual world when you begin to read p. 73. How would you characterize this approach to justice and law? What is some of the terminology he uses to get across his argument?

2. Laelius makes reference to slavery on the bottom of p. 73. What is his point?

3. Marcus is the leading speaker in Book I of The Laws. What is the relationship between the supreme god, reason, nature, justice and law?

4. A key statement of Marcus is on p. 75: "But of all the things which are a subject of philosophical debate there is nothing more worthwhile than clearly to understand that we are born for justice and that justice is established not by opinion but by nature." What does this mean?

Conclusion

So, with which approach to law and justice do you tend to sympathize? If you had to plot the American justice system somewhere along the continuum between utility and justice, where would you put it?

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