Cicero's De Officiis III.5 and Natural Law

The first time I ran into the concept of natural law or a "law of nature" was in studying Romans 1-2 in college. During Paul's screed against sexual aberrations, he talks about how people have departed from "natural intercourse" with others and were consumed with passion for those of their own gender (1:27). I learned shortly thereafter that the talk of natural roles, natural rights, natural duties, etc. derived ultimately from Stoic philosophy in the 4th-3rd century BCE, originally written in Greek, but which had been mediated into the Latin tradition through Cicero in his later writings (ca. 45-43 BCE). So, I studied Stoicism with great interest, learning that a focus on Stoic ethics, rather than Stoic logic and physics, were characteristic of the later period (around Cicero's time). Terms such as the "law of nature" or "living accordance with nature" were very much a part of my vocabulary, even though I sort of dismissed the terms because they didn't have a "Christian" meaning.

I was surprised, and not a bit intrigued, when taking up legal study at age 44, to come across references to natural law, not only in early American law but in classic treatises of the common law (Blackstone and others). But then, when doing further work on juridprudence, I realized that the concept of natural law was overlaid with/put next to/placed in contrast to concepts such as the "law of nations" or the "divine law." Indeed, the 13th century Catholic theologian Thomas Aquinas speaks of four kinds of law--including natural, divine, human and eternal. Hugo Grotius, the gifted 17th century Dutch legal scholar, made major contributions to the nascent field of international law by appealing to the Stoic notion of a ius gentium, a "law of the nations." Thus, it appeared to me, there was a lot of slippage in terminology as people tried to explain the nature and number of sets of "laws" in the universe.

Returning to Cicero

Well, I have been reading a lot of Cicero in Latin of late, as a way of "making the language my own," and today I came across a section of De Officiis ("On Duties") in which Cicero speaks of the various kinds of law. He is particularly interested in Book III of this work to describe the contrast or similarity between the "honorable" (honestas) and the "expedient" (utilis). But as I studied III.5, I recognized that Cicero used several terms interchangeably that seemed to become the basis of different kinds of law in later thinkers. That is, what was rather fluid terminology in his time became hardened or fixed perhaps a millennium or two later. He says:

"Neque vero hoc solum natura, id est iure gentium, sed etiam legibus populorum, quibus in singulis civitatibus res publica continetur, eodem modo constitutum est, ut non liceat sui commodi causa noceri alteri.....Atque hoc multo magis efficit ipsa naturae ratio, quae est lex divina et humana" (De Officiis III. 5).

I have italicized these terms because they seem to reflect Cicero's understanding of the relationship of a divine and a human law. Care should be taken not to force him into the Procrustean bed of later systematic thinkers. He says:

"Nor in fact is it only by nature, that is the law of the nations, but also by the laws of the people, by which the republic is managed in each state, i.e., by that manner it is set up, so that it is not permitted for the sake of its own comfort to injure another...And the rational principle of nature itself, which is the human and divine law, much more brings this about.."

My translation is rather wooden because I wanted to bring out the ways that Cicero speaks of law. First, he speaks of "nature" as equivalent to the "law of the nations." But these laws of the nations are different from the "laws of the people," i.e., these latter laws appear to be what we would call "statutory enactments" today. The laws of the nations, then, are not to be distinguished from some overarching, or underpinning, 'law of nature' which the laws of the nations somehow "imitate" or "mirror." At least that is the sense I get from III.5.

But then, in the last sentence quoted, he speaks of the "rational principle in nature," which is the "divine and human law." You can see how fluid his language is, for one wonders if the "human law" here, which seems to be an expression of the "rational principle in nature" is identical to the "laws of the people" of the earlier part of the quotation. Thus, it isn't really all that clear at this point how many types of law Cicero envisioned. We ought not, however, to try to force him to enumerate these for clearly the concept is fluid for him. Cicero as rhetorician is coming through here loud and clear, rather than Cicero the systematic philosopher. But by introducing several terms, many of which he doesn't consistently use, he bequeathes to the Western philosophical tradition a host of terms that can be taken up by those more systematically/legally minded, who are interested in constructing a system, rather than in making an argument. So, how many "systems of law" does Cicero believe in, from this passage? I think, if pressed, that he believes in a sort of general "law of nature," a kind of brooding omnipresence which provides rather conservative values to him, and the "laws of the people," which are the enactments of duly elected or appointed political bodies. The first category has many terms to describe it, all the way from "nature" to the "law of the peoples" to "divine law." But these are all ways, in my judgment, for Cicero to try to conceptualize the same thing.

Conclusion

It is always fun to read how a systematician takes this rhetorical exposition as the basis for logical analysis. Thus, we have four types of law in Aquinas and Blackstone, for example (even though their four types of law don't fully agree with each other!), with their terms almost all ultimately derived from Cicero, though others sympathetic to natural law would just emphasize a divine and human law. Interest in natural law has waned, principally because it is difficult to conclude what its content is, but for those historically and theologically inclined, Cicero's discussion in De Officiis III.5 is a very helpful starting point.

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