Sources of Law, 2: Cicero’s Philosophy

The Romans, at least judging by the surviving sources, developed one of the most sophisticated legal systems in the pre-modern world. This legal system first emerged during the Roman Republic (ca. 500 BCE to 31 BCE), although its early development is not well documented.

The political and cultural ideas underlying Roman law emerge more clearly into view in the last century or so of the Republican period, especially through the extensive writings of the lawyer and philosopher Cicero (106-43 BCE), who tried, but failed, to defend the Republic against the rise of dictators like Julius Caesar. Although Cicero lost this political battle, his ideas powerfully influenced later Western thought, including that of America’s founders. Through the nineteenth century Cicero was considered to be a model of oratory and a leading thinker on legal and political matters. In particular, Cicero is noted for having reshaped and transmitted the Greek Stoics’ tradition of Natural Law, i.e., the idea that there is a universal law that is part of nature itself. Cicero’s version of Natural Law included such ideas as human equality and that government should be based on the consent of the governed.

  1. Natural Law: “Nature not only endowed man himself with intelligence, but also gave him the senses as guides and messengers, as well as the obscure, insufficiently elucidated conceptions of many things as a foundation of knowledge… All of this is really a preface…, and its purpose is to make it more easily understood that justice is inherent in nature… It has been the opinion of the wisest of men that law is not a product of man’s thought, nor is it any enactment of peoples, but rather something eternal that rules the whole universe by its wisdom in command and prohibition. Thus they have been accustomed to say that law is the primal and ultimate mind of god, whose reason directs all things either by compulsion or restraint (On The Laws, 1.9.26; 1.12.34; 2.4.8).

  2. Human Equality: “[We should realize] that we are born for justice and that right is based not on men’s opinions, but upon nature. This will already be evident if you examine the fellowship and connection of men among themselves. For there is nothing so similar, so exactly alike, as all of us are to one another… And so, however we may define man, a single definition will apply to all. That is a sufficient proof that there is no difference in kind within the species… And indeed reason, which alone raises us above the level of the beasts…, is certainly common to us all, and though varying in what it learns, at least in the capacity to learn it is invariable… In fact, there is no one, from any people whatever, who, if he finds a guide, cannot attain to virtue… For virtue originates in our natural inclination to love our fellow men, and this is the foundation of justice” (On The Laws, 1.10.28-30, 43).

  3. Government by Consent: “A commonwealth (res publica) is the property of a people. But a people is not any collection of men brought together in any sort of way, but many people united by agreement on justice and a partnership for the common good. The first cause of such an association is not so much man’s weakness, but rather a certain social spirit that nature has implanted in him. For man is not a solitary or unsocial creature, but born with such a nature that not even under conditions of great prosperity of every sort is he willing to be isolated” (The Republic, 1.25.39).

  4. Tyranny Violates Consensual Government: “How can that state be called a republic [res publica], which means the property of the people? For there all were oppressed by the cruelty of one, and there was no bond of justice whatever, nor any agreement of partnership among those gathered there, though this is part of the definition of a people… Therefore, wherever a tyrant rules…we really have no republic at all… But when the multitude inflicts punishment on whomsoever it wills, when it seizes, plunders, retains, and wastes whatever it will…, the name of a republic is no more applicable to the despotism of the multitude…, because there can be nothing more horrible than that monster that falsely assumes the name and appearance of a people” (The Republic, 3.31.43, 45).

  5. Government Exists to Protect Property Rights: “A governing official must make it his first care that everyone shall have what belongs to him and that public acts do not infringe on private property… For the chief purpose in the establishment of cities and republics was that each person might have what belongs to him. For, although it was by nature’s guidance that men were drawn together into communities, it was in the hope of safeguarding their possessions that they sought the protection of cities” (On Duties, 2.21.73)

  6. The Best Type of Government: “Every republic…must be governed by some deliberative body if it is to be permanent… This function must either be granted to one man, or to certain selected citizens, or it must be undertaken by the whole multitude. When the supreme authority is in the hands of one man, we call him a king, and this form of state a kingdom. When selected citizens hold this power, the state is said to be ruled by an aristocracy. But a popular government (for so it is called) exists when all the power is in the hands of the people. If the bond which originally joined the citizens together in the partnership of the state holds fast, any of these three forms of government may be tolerable… For either a just and wise king, or a select number of leading citizens, or even the people itself, though this is the least commendable type, can form a government that is sufficiently stable… [But] a fourth form of government…, a moderate and balanced form of government, which is a combination of the three good simple forms, is preferable…, because the primary forms already mentioned degenerate easily into the corresponding perverted forms, the king being replaced by a despot, an aristocracy by a faction, and the people by a mob and anarchy” (The Republic, 1.26.41-42; 1.29.45; 1.45.69).