Some Remarks on the Notion of "Natural Law" in Cicero's Laws
By Fabrice P. Beland, December 17, 2010 in Uncategorized

From Plato and Aristotle to Cicero, we observe a radical change in the understanding of classical natural right. By contrast to his two predecessors, Cicero doesn’t seem to harbor any doubt about the salutary character of some philosophical doctrine of natural right for the political community. In his dialogue The Laws, we see Cicero having recourse to the notion of a rational or natural law to defend and justify his own slightly improved version of the ancient Roman Republic’s legal code. Since the notion of a “natural law” also appears in Cicero’s Republic(cf. I.17 and 3.22), Cicero has often been considered as one of the first thurifers of this controversial notion. In this paper, we focus exclusively on Cicero’s presentation of the natural law in his dialogue The Laws. After replacing Cicero’s treatment of the natural law in its specific context, we argue that in his Laws, Cicero’s defends two different notions of the natural law: 1) the natural law strictly speaking which is the preserve of the wise man, a law whose only command is that the wise man should rule over the unwise; 2) the natural law understood as the theoretical support of the gentleman’s moral decency. In this last sense, the natural law is disconnected from any real knowledge of the whole, and becomes as a consequence a very problematic concept.  

In The Laws,Cicero’s doctrine of the natural law is part of an attempt to find a proper foundation for his interpretation of the ancient Roman civil law. This attempt begins with a detour via the “deepest recess of philosophy” (I.17). With the Epicurean Atticus and his brother Quintus, Cicero announces his intention to focus first on “the universal right and the universal law” (I.17), then on “the laws by which States are governed”, and finally on “the enactments and decrees of nations which are already formulated and put in writing” (I.17). For the most part, we will limit ourselves to a careful reading of the first part of this ambitious project: Cicero’s inquiry into the nature of this universal right/law, an inquiry that begins in I.18 and reaches its conclusion in II.18. Again with the explicit intention of providing a philosophical or rational deduction for his new formulation of the Roman civil law, Cicero begins to look for the origins of justice. Even though he “doesn’t know” if they were right to proceed as they did, his starting point in this inquiry is the starting point of the “most learned men” who, before him, were interested in the same subject: the meaning of the notion of “law” (I.18-9).

The natural law of the wise man:

Cicero ascribes two different meanings to this notion: “law” can mean either “the highest reason, inherent in nature, a law which enjoins what ought to be done and forbids the opposite”, or it can refer to that same reason “confirmed and perfected in the human mind”, i.e. “prudence [prudentiam]” (I.18-9) or that prudential reason by virtue of which a man can direct himself towards the good and avoid evil. From the outset, it should be noted that, although he begins with a clarification of what the notion of law means, Cicero ends up looking to “nature” or to the wise man’s understanding of the cosmic order “for the origins of justice” (I.20). Indeed, while the law understood as the perfected reason of the wise man is not identical with the highest reason inherent in nature, it is derived from it. It is a natural law, the natural law of the wise man. Here, prudence is defined as the exclusive attribute of the wise man who has successfully grasped the rational order of the cosmos. The meaning of “prudence” in Cicero is ambiguous, as is the meaning of Plato’s “phronesis”, an ambiguity which is the same in both cases: as in this instance, prudence (prudentia) can sometimes be understood as almost synonymous with wisdom (sapientia), a perfection of reason which includes the theoretical knowledge of the whole (cf. Cicero, The Laws, I.22), and it can also adopt the narrower practical meaning that Aristotle gives it in his Ethics (cf. Cicero, The Laws, I.60). This ambiguity has the following cause: in order to act wisely in a given set of circumstances, a man first has to know his own good; but this knowledge of one’s own good presupposes the more general knowledge of man’s good, and ultimately of the whole that man is a part of. Hence, for Cicero, the prudent man’s reason can be called“law” as a consequence of this man’s knowledge of the highest rational law inherent in nature. “Wisdom [sapientia]” is the “mother of all good things” (I.60).

To be sure, both as the highest reason inherent in nature and as the prudent man’s reason, the law is perfectly rational. But understood as the prudent man’s reason, the law becomes practical. It is not a law that indicates an already existing order. It is a natural law that shows what must be, who should rule who. As we will see, this natural law will guide the prudent man’s conduct in the world by informing his attitude towards other men – the decent man and the common citizen – who aren’t privy to the same knowledge. But so far, nothing specific has been said concerning the possible political applications that could be made of the wise man’s natural law. One thing is nevertheless certain: the natural law qua the prudent man’s practical reason is very different from the human laws that govern men in political communities. To repeat, its knowledge is reserved to the wise man, i.e. to the man who has grasped the cosmic order. It seems, then, that Cicero makes a provisional distinction between three different meanings of the notion of “law”: 1) the eternal law or the highest reason inherent in nature; 2) the wise man’s prudential law – the “intelligence and reason of the prudent men” (I.19), a law derived from the cosmic law; and 3) the human/positive laws. What is still unclear is the way to derive the human laws from the wise man’s grasping of the eternal/cosmic law. Is such a deduction even possible, given the fact that the vast majority of the citizens aren’t wise? If his intention is to provide the ancient Roman civil laws with a solid foundation, is Cicero acting prudently by looking for this foundation in the philosopher’s knowledge of nature?

A moral world view for the decent man:

From I.20 to I.52, Cicero attempts to provide some theoretical support for the specific virtue of the decent man. The decent man is the man who acts virtuously for the sake of virtue. As such, his virtue needs neither the lure of some reward nor the fear of punishment. For this reason, the decent man’s noble dedication to the common good is crucial for the survival and prosperity of the city. Unfortunately, the decent man’s virtue is also very fragile: it rests on a moral worldview that does not coincide with the whole as it can be known by the philosopher. To secure and protect this worldview against what threatens it, the decent man needs the help of the political philosopher. The first step taken by Cicero in this direction is to hide the philosopher’s own agency or rule behind the rule of the gods. Man, asserts Cicero, lives in a world “ruled [regi]” by the “immortal gods [deorum immortalium]” (I.22). This belief, insists Cicero, must be accepted by the Epicurean Atticus for their discussion to move forward. Atticus politely agrees. Cicero then goes on: “a creature of foresight, sagacity, variety, keenness, memory”, “reason and judgment”, man was created by “a supreme god [supremo deo] to enjoy a remarkable status” in the world. Most importantly, adds Cicero, this benevolent god is a god of reason. Indeed, nothing is “more divine than reason”, a faculty which, when fully developed and completed in a man, endows him with “wisdom [sapientia]” (I.22).

It is not enough to say that man is a rational being destined by a benevolent and rational god to acquire wisdom by developing and perfecting his reason. This same reason also makes him a highly dignified social being, the member of a very exclusive society. Qua rational beings, all men belong to a universal society, a “rational society” whose members are all ruled by the same “law”, a law defined by Cicero as “right reason [recta ration]” (I.23). Moreover, as rational beings themselves, the supreme “God” and the other “gods” are also members of this universal “rational society”. In “common” with men, they are too subject to the same “right reason”, to the same “justice [ius]” (I.23). Behind the great variety of all the existing codes of laws, and above the many deities worshipped by men, Cicero carefully makes out the same fundamental justice, a justice based in a rational law enforced by a supreme God who rules the whole for the benefit of all men and gods. This second notion of the rational law is not identical to the wise man’s grasping of the highest reason inherent in nature. It is included in a description of the whole that is meant to solidify the decent man’s moral understanding of the world. Unlike the world of the philosopher, this world is ruled by an “all-powerful God” who has created man and who rules over the other gods. The “whole universe” (I.23) is suddenly given the distinctive features of a “city” inhabited by rational citizens and ruled by a rational law: the law of “justice”. Thereby, the decent man’s faith in the gods of his particular city may be weakened. But by the same token, the unity and goodness of justice will end up being solidified.

In an allusion to one very concrete manifestation of mankind’s rational unity, Cicero notes that divine worship is a universal phenomenon. No matter how sophisticated their respective culture is, all men understand the necessity to worship some god: “within mankind itself, there is no tribe so civilized or so savage as not to know that it should believe in a god, even if it is mistaken about the kind of god it should believe in” (I.24). What is the rational cause responsible for this surprising show of unanimity? According to Cicero, the naturalness of man’s religiosity is a consequence of his awareness that something in him, namely his reason, is “divine” (I.24). Based on this awareness, man is justified to conclude that he must have some “origin, or stock in common with the gods” (I.24). Thereupon, Cicero puts forward a commonsensical argument meant to demonstrate the goodness of nature. The importance for moral decency of the belief in nature’s goodness is self-evident. The existence of a rational law of justice known by all men and supported by an all-powerful God isn’t enough. If nature itself as a whole isn’t good, then man may have some reasons to be unjust. Moral decency can only exist in a moral world wherein injustice has absolutely no excuse.

Cicero’s moral cosmology or the goodness of nature:

If God has “created” man to take precedence over everything else in nature, nature is in charge of rearing him to fulfill this divine destination. Nature first supplies man with the end of his existence. As rational and social beings, the same notion of “universal virtue” applies to all men: “the completion and perfection” of their “nature”. Strikingly, Cicero now refrains from associating this universal perfection of man’s nature to the philosopher’s wisdom. He seems to be interested in providing some support for a notion of virtue more easily attainable by man. Be that as it may, nature is not stingy. It also provides us with the means to attain our god-given end. It “has lavished such a wealth of things on men for their use and convenience that every growing thing seems to have been given to us on purpose” (I.25). It has supplied us with all our physical features and faculties. Even our technical skills “have been discovered thanks to nature’s teaching” (I.26). Finally, nature has supplied us with “the power of speech, which is above else the promoter of human fellowship” (I.27). As Atticus is then keen to mention, Cicero has gone “a long way back in [his] search for the basis of justice” (I.28). What was the purpose of this teleological description of nature? To convince us, answers Cicero, that “we are born for justice, and that what is just is based, not on opinion, but on nature” (107), a nature that is hospitable to morality.

Therefore contends Cicero, no man is prevented by nature to be virtuous. Thanks to nature’s goodness, all that is needed to practice excellence is “reason”, and all men are endowed with it. Yes, many men do not live according to principles of right reason. But their common rational nature is not responsible for the fact that men often behave irrationally. The fault lies rather with the “corrupt habits and foolish opinions” (I.30) that cloud their “feeble minds” (I.29), thereby hiding their own eyes their natural destination. Nevertheless, insists Cicero, nature remains everywhere as a faithful “guide” to be used by men in their practice of justice understood as the virtue of every rational and social being. The same “principles of right living” (I.32) make everyone, since they are endowed with the same “ability to learn” (I.30) and provided by nature with the same basic “perceptions” and “ideas” (I.30) about justice, “a better person” (I.32).

The problem of evil and justice’s natural goodness:

With this conclusion, Cicero’s detour via “nature” is almost completed. For the common benefit of the decent man and his city, he has defined man as a being naturally endowed with reason and sociability. In addition, he has specified that, thanks to nature’s inherent goodness, man was destined to live a life of justice. Is there anything to add if what Cicero wanted was to provide a natural basis for the decent man’s practice of justice? One is tempted to say that Cicero has proven too much for the decent man’s own good. Indeed, to make his moral cosmology totally convincing, he must now answer the following objection: if we are naturally destined to be just, and if man is the pinnacle of the natural world, then why is the world of man the most chaotic part of nature? Why is there evil in the human world? Cicero doesn’t deny the existence of evil. In fact, he can’t. Moral decency wouldn’t tolerate it. That being said, the existence of evil is a problem for the decent man: it makes the natural goodness of justice problematic. Because of the existence of wicked men, the decent man sometimes seems by comparison to be disadvantaged by his love of justice. For the world to be moral, evil must be allowed to exist, provided of course that it be punished.

While he inquires into the nature of evil and the consequences of its existence (I.29-52), Cicero’s tone and attitude change. He gradually adopts the posture of the decent man who can’t talk about evil without expressing his profound disgust and disapprobation. Cicero first reasserts “that we have been made by nature to share justice amongst ourselves and to impart it to one another” (I.33). Nature, then, isn’t responsible for injustice. “Bad habits” (I.33) are. Whence do these bad habits come? Ultimately, they are caused by the beguiling nature of “pleasure” (I.31). But isn’t this an argument against the goodness of nature? To the contrary, argues Cicero: pleasure can lead men to vice because it “bears some resemblance to what is naturally good” (I.31). If nature wasn’t good, pleasure wouldn’t be able to foul men. In the end, pleasure’s ubiquitous nature bears the responsibility for the fact that some men believe that their own particular good isn’t identical with the common good of all. What is pleasurable for me, they think, cannot be enjoyed in common. Thus, most men doubt the natural goodness of justice. Led astray by pleasure, they have “separated self-interest from justice” even though, maintains Cicero, “it is in fact the case” (I.33) that justice is naturally good for all men.

The problem of the natural goodness of justice doesn’t concern virtue in general. In fact, it could be argued that justice is the only virtue whose natural goodness isn’t self-evident. Why is it good to be moderate or magnanimous? This question is very rarely raised. Why should one be just? Why should one sacrifice his private good for the good of others? Even though the decent man would never ask these two questions himself, they highlight a real problem for his brand of human excellence. In the case of justice, there appears to be a divorce between the inherent nobility of the virtuous act and the pleasure that can be taken from it. Is the decent man’s subjective awareness of being intrinsically virtuous (i.e. worthy of being happy) sufficient to establish justice’s natural goodness? It doesn’t seem so. To invoke the pleasure caused by this subjective awareness begs the question, for it presupposes that justice is a virtue, i.e. an essential part of human excellence. And this is only one part of the whole problem caused by the existence of wickedness. Indeed, even if we admit that the pleasure taken by the decent man from the subjective awareness of having acted justly proves justice’s natural goodness, one could still object that this pleasure doesn’t always compensate the just man for the pain caused to him by the injustice of others, a pain that he would have had to endure as a direct consequence of his own love of justice.

A natural law for the decent man:

Without altering the commonsensical meaning of justice, the only satisfactory way to prove its natural goodness in a human world full of wickedness is to ascribe to all men the natural inclination for the noble and the just as such. Justice is naturally good if and only if men, in addition to being naturally destined to a life of reason and sociability, are by nature also inclined to do what is just for its own sake. Incidentally, this is exactly what Cicero is now asserting: “For those who have been endowed by nature with reason have also been endowed with right reason, and hence with law, which is right reason in commanding and forbidding; but if with law, then with justice too” (I.33). This last assertion represents a clear break with Cicero’s earlier position with respect to the law of reason. Indeed, knowing justice as something both natural and rational doesn’t depend anymore on possessing wisdom, a very rare virtue that the decent man doesn’t have. But as things stand now, it appears that he doesn’t even need it: all men naturally have the knowledge of justice’s goodness by the simple fact of being rational animals. They are all, to borrow from Atticus ironic rendering of Cicero’s argument, “held together by a natural goodwill and kindliness and also by a society of justice” (I.35).

This is so paradoxical, so flagrantly contradicted by any man’s personal experience, that one is not surprised by reservations immediately expressed by Cicero: the truth about the natural goodness of justice can only be arrived at by examining “on its own” and “adequately” the “particular proposition” according to which “justice is derived from nature” (I.36). So far, Cicero has maintained that it was, without ever proving it. He knows has to do it. Before supplying us with this much anticipated proof, Cicero recalls the main purpose of the discussion: his aim in attempting to lay down the “first principles” of natural justice is to “bring stability to states, steadiness to cities, and well-being to communities” (I.37). Therefore, Cicero continues, he will not try to prove the natural goodness of justice “to everyone’s satisfaction”. Indeed, admits Cicero, such a proof cannot be given. Only those can be convinced that justice is naturally good who already “believe that everything right and honorable should be desired for its own sake, and that things which are not praiseworthy in their own right, should not be counted among good things at all, or at least that nothing should be regarded as a great good if it cannot truly be praised for its own sake” (I.37). In other words, the proof of the natural goodness of justice will be convincing for those men who are already morally decent. To put it bluntly: his proof of the natural goodness of justice will be perceived as satisfactory by those men who cannot really admit their need for it, and who even consider the simple fact of raising the issue as a lack of decency.

The natural punishment of the wicked:

As he is getting ready to prove that “justice is derived from nature”, Cicero isn’t interested so much in what is true than in what will secure the well-being of political communities. Indeed, those “slaves” who “measure everything that they should seek and avoid in life by the yardstick of pleasure and pain” (I.38) might very well be “right” (I.38). True or not, their self-indulgent speeches are harmful to political communities. Therefore, concludes Cicero, it is more prudent to ignore them. One is entitled to ask himself why, if not to discretely highlight the true nature of man’s natural destination, Cicero indecently brings up an issue that he himself deems detrimental to the city’s steadiness and prosperity. Be that as it may, Cicero begins to expound, this time with the appropriate sense of decency, on the natural character of justice. The first part of the argument is missing. Cicero seems to have been arguing against one erroneous way to understand justice’s natural goodness: namely, as a consequence of the punishment incurred by unjust men in political communities or in the after-life. By contrast with this instrumental notion of justice’s goodness, Cicero is adamant that men are deterred or punished for their unjust acts by the wicked or unjust character of the act itself (“with the torment of their conscience and the agony of their guilt” (I.40)). Otherwise, observes an indignant Cicero, “why on earth should the wicked have anything to worry about if the danger of punishment were removed?” (I.40).

It is important to remember that this rhetorical question is not addressed by Cicero to the wicked man. Cicero’s speech about justice is still intended to a decent audience. But why, one could wonder, speak to the decent man about wickedness? Why does Cicero feel the need to supply the decent man with some reassurance concerning the wicked man’s unhappiness? For the simple reason that, strictly speaking, decency doesn’t want only a proof of justice’s goodness. In addition, it demands to be shown that the wicked man will never be rewarded for his wickedness. The decent man’s opinion about his own situation is arrived at by a comparison between his own state and what he believes the wicked man’s state to be. Hence, and at the risk of making him “blush” (I.41), one must conclude that the awareness of his own decency doesn’t suffice to make the decent man happy. To be totally comforted in his choice of a life of justice, the decent man has to believe what he cannot know from personal experience: that the wicked man is rendered unhappy by his own wickedness (by contrast, the wicked man doesn’t need a comparison with another mode of life to be convinced that he is unhappy). If wickedness isn’t always its own punishment, then, threatens Cicero, “no one is unjust” (I.40) and the real alternative facing man becomes the one between craftiness and carelessness.

Justice as the supreme virtue:

While reacting to the belief that “everything decreed by the institutions or laws of a particular country is just” (I.42), Cicero takes the whole thing one step further: “there is one, single, justice. It binds together human society and has been established by one, single, law. That law is right reason in commanding and forbidding. A man who does not acknowledge this law is unjust, whether it has been written down anywhere or not” (I.42). In fact “every virtue is abolished if nature is not going to support justice” (I.43). Cicero raises the stakes considerably: we are no longer trying to prove the natural goodness of justice, but the natural goodness of virtue in general. Why this sudden modification? This, we suggest, is also meant to solidify the decent man’s moral worldview. To recapitulate, the decent man has first been told by Cicero that his love of justice stemmed from a divine part of his nature (and not from fear or ignorance), i.e. that justice’s didn’t need any help to be good. Unfortunately, it rapidly became evident that it did. Indeed, Cicero saw the additional necessity of reassuring the decent man by asserting that the wicked man was always punished as a direct consequence of his own wickedness. Starting from I.43, Cicero is again trying to persuade the decent man that his own decent life is good. Here however, the threat doesn’t come from wickedness, but from a virtue that appears superior to moral decency. Could such a thing even be? In the interest of decency, it better not: the decent man has to be convinced that his own brand of virtue is the highest that any man can pursue. Decency will believe in its own rationality and goodness if and only if it also believes that all virtues are social in nature, based in man’s natural “regard for others” (I.43).

The good and the appearance of the good:

But even this is not enough. As a consequence of the decent man’s regard for others, moral decency needs to be fortified by a fourth argument. Because of his regard for them, a man cares about what the men that he lives with think about him. His opinion about himself is informed by what he believes to be the others’ perception of what he is. To that extent, not only is a man’s happiness the result of a comparison between his own situation and the situation of others, but it depends to a certain extent on the possibility for such a man to believe that his evaluation of his own happiness is being shared by others. This last consideration seriously complicates Cicero’s argument in favor of moral decency’s goodness. For decency to be good, it is not enough that it be convinced to be naturally superior to other modes of life. It must also be publicly honored as such. For the decent man to believe in the natural goodness of justice, for him to be convinced that wickedness is always punished by unhappiness, and persuaded that social virtue is the peak of human excellence, he needs more than the comforting arguments of a philosopher. He must find some support for these arguments in what is held by the members of is political community to be “honorable” and “dishonorable” (I.44).

Fortunately, most men praise social virtue and blame injustice (cf. I.32). To be sure, this could be taken as a manifestation of their hypocrisy. To ward off this objection, Cicero must prove the trustworthiness of public opinion in these matters. With this end in view, he declares that all things without exception that are honorable and dishonorable are “differentiated by nature”, “for nature has created perceptions which we have in common, and has sketched them in our minds in such a way that we classify honorable things as virtues and dishonorable things as vices”. We were expecting from Cicero something slightly different: that we naturally classify virtues as honorable things and vices as dishonorable things, and not the other way around. As it is, Cicero’s argument proves the trustworthiness of public opinion concerning the honorable and the dishonorable if and only if 1) everything intrinsically good also has the appearance of the good (i.e. if all virtues are social in nature) 2) everything that has the appearance of the good also is necessarily good intrinsically (i.e. no wicked man could ever be mistakenly honored as an honorable man), two highly questionable presuppositions as we are about to see.

Maybe for this reason, Cicero’s immediately attempts to demonstrate the trustworthiness of men’s opinions regarding the honorable and the dishonorable in a different manner. In I.45, he resorts to a negative proof in order to establish that all “honorable and dishonorable things”, among which one finds justice and wickedness, are held to be so as a consequence of being “distinguished by nature”. His argument is the following:

 If “universal virtue”, i.e. justice, is only “certified by opinion” (I.45), namely without any natural basis, then the same must apply to the different “parts” of virtue.

But some parts of virtue – Cicero gives the example of prudence – are to be judge solely “on the basis” of the virtuous man’s “natural character”, and not according to some “external factor” (I.45) like opinion.  

Therefore, the whole of virtue, i.e. justice, isn’t certified solely by opinion, but has a firmer basis in nature.

Here again, Cicero’s argument is not without presuppositions. For one, It presupposes what has been presupposed since I.22 at least, namely that justice or social virtue is identical to “universal virtue”, i.e. that all virtues have the same origin in man’s natural regard for others. But this time, it discretely alludes to the fact that some virtues aren’t social in nature. As a matter of fact, prudence understood as theoretical wisdom isn’t. The man who contemplates the whole contemplates alone. Moreover, the vast majority of men are unwise, and as such totally unable to tell wisdom from apparent wisdom. In reality, it is not the case that everything intrinsically good also has the appearance of the good. The prudent man may appear to the unwise as something else than good, namely as wicked (indifference to justice being perceived by the decent man as identical to wickedness). Therefore, the prudent man has to be judged solely on the basis of his natural character. In return, this doesn’t prove anything with respect to social virtues. Hence, Cicero’s negative argument fails to establish that nature has given all men the same right opinions concerning what is honorable and dishonorable. Rather, it tends to prove that at least one virtue isn’t abolished if nature is not going to support justice.

Seemingly undisturbed, Cicero moves forward with his argument. The distinction between honorable and dishonorable things being based in their respective intrinsic goodness and wickedness, one can safely assume that everything publicly praised or honored as good is rightly so.  In other words, nothing can be honored for the wrong reasons. This too seems to fly in the face of our experience of human life. Moreover, when evoking earlier the beguiling power of pleasure, Cicero himself had maintained the contrary: “because good character and good reputation look alike, those who received public honors are regarded as blessed, and the obscure are objects of pity” (I.31). In consequence, and given the beguiling power of pleasure, it is not the case that what appears to be good necessarily is so intrinsically. In addition, Cicero’s argument could only be considered as potentially sound if men were unanimous in what they consider to be honorable and dishonorable. But here again, it is Cicero himself that points to the problematic nature of his own argument. To say nothing of those men who publicly deny the natural goodness of justice, those philosophers who equate the good and the pleasant do not even wish to participate “in public life” (I.39). They do not honor honor.

The rule of the philosopher:

Willy-nilly, Cicero acknowledges the confusion caused by the very troubling “variety and incompatibility of men’s opinions” (I.47) concerning what is honorable and good. But, he contends, this variety doesn’t prove that justice has no permanent basis in man’s nature. It proves that “young untrained mind” can be corrupted by a “parent”, a “nurse”, a “teacher” or a “poet”, but most importantly by “pleasure, which masquerades as goodness”. Pleasure is the “mother of all ills” (I.47), the source of the doubt that some people entertain concerning the natural goodness of justice. But, since none of these doubters can be counted among the decent men who already pride themselves of their capacity to scorn and reject pleasure in favor of virtue (cf. I.52), Cicero can consider himself exempted from the obligation of exposing the wicked nature of pleasure. His argument in support of moral decency is now officially completed. His final rejoinder is that one should strive after “justice” and “everything that is respectable” (I.48) for its own sake, that the “good man” can be trusted to never “make the mistake of loving what is not intrinsically lovable” (I.48), and that justice “is at once the cause and meaning of all the virtues” (I.48).

Upon closer inspection, it appears that pleasure and the many errors that are due to its charms aren’t the sole causes of the variety and incompatibility of men’s opinions concerning the good. “Teachers” must also be held accountable for this variety, i.e. philosophers. Indeed, a philosopher’s understanding of the good is entirely different from what the unwise – decent or not – believes the good to be. If pleasure is the mother of all ills, “wisdom [sapientia]” is the “mother of all good things” (I.58). When the philosopher “examines the heavens, the earth, the sea, and the nature of all things, and perceive where those things have come from and to where they will return, when and how they are due to die, […] and when it almost apprehends the very god who governs and rules them, and realizes that it itself is not a resident in some particular locality surrounded by manmade walls, but a citizen of the whole world, […] in this contemplation and comprehension of nature, great God! […] how it will disdain, despise, and count as nothing those things that are commonly deemed so precious!” (I.61). A citizen of the world, the wise man shares neither the moral evaluations of the wicked man nor those of the decent man. His is a third human possibility: a relative indifference to human justice.

That being said, the wise man is still a man, and as such, he understands that his social nature requires him “to join a civil society” (I.62). But the wise man will not join a civil society as a mere citizen. This would be against the natural law, this understood in its strict sense: the right reason of the prudent man. The wise man will join civil society as its legitimate ruler according to right reason. With his perfectly developed reason, he will “rule nations [regat populos], reinforce [already existing] laws, castigate the wicked, protect the good, praise eminent men, issue instructions for security and prestige in language which will persuade fellow-citizens”; this prudent man “will be able to inspire [his fellow-citizens] to honorable actions and restrain them from disgrace; to console the afflicted, and to hand on the deeds and counsels of brave and wise men, along with the infamy of the wicked, in words that will last forever” (I.62). In a nutshell, the philosopher who has understood how to rule himself will know how to rule his nation and praise eminent men exactly as Cicero has been doing in the Laws.

The divine law – the natural law of the common citizen:

If the philosopher qua thinking being has the cosmos for only fatherland, as a bodily creature, his fatherland is his hometown, the place where he and his beloved ancestors were born: “Well, to tell you the truth, this is the actual country where I, and my brother here, were born. Yes, we come from a very old local family […] I was born in this very place, you know, my grandfather was alive and the house was a small one in the old-fashioned style, like Curius’ home in the Sabine country. So there’s something deep in my heart and soul which gives me, perhaps, a special affection for the spot” (II.3). Like that “eminently sensible man” who “wanted to see Ithaca once again”, Cicero’s love for his hometown in not founded in any philosophical love. In this respect, the political man that he is embodies a mean between the cosmopolitanism of Atticus the Epicurean, and the patriotism of his brother Quintus. His concern for the good of a particular political community stems from two opposite sources: 1) the natural law according to which the superior (the wise man) should rule over the inferior (the unwise); 2) the fact that his hometown’s security and prosperity depends on the security and prosperity of a particular political community. These two vectors meet in Rome.

Book I has inquired into the possibility of finding a firm basis for moral decency in nature. In the process, man was defined as a rational and social being, and the problematic character of justice’s natural goodness was emphasized. The conclusion of Book I was that the rule of the wise man is both needed to support the gentleman’s moral decency and justified by the natural law. In Book II, we see Cicero complete his deduction of human justice from the prudent man’s natural law. This deduction begins rather abruptly by stressing the urgency of the matter. As he had done in Book I, Cicero makes a distinction between two types of law: a law which is human reason “fully developed in the mind of the wise man” (II.11), and the “authentic original” (II.10), “final”, “divine” (II.8), “eternal” (II.10), “highest” (II.11) law, a law which rules the cosmos and is ascribed to “the intelligence of God, who ordains and forbids everything by reason” (II.8). Here again, if they differ with respect to the being who thinks them, these two eternal laws are still equally rational. Strictly speaking, rationality is the distinctive feature of the law. From this understanding of the “nature of the law” (II.8), Cicero proceeds to deny all humans laws the right to bear such a dignifying appellation. Voted by assemblies or enacted by kings, all these so-called irrational laws “enjoy the name of laws thanks to popular approval rather than actual facts” (II.11).

Cicero then goes back to his original question of the law’s nature. What is a good law? Is rationality a sufficient attribute for a law to be considered “praiseworthy” (II.11)? On a more commonsensical level, a law is good that can successfully “ensure the safety of the citizens, the security of states, and the peaceful happy life of human beings” (II.11). What gives a good law this kind of power? Rationality? Cicero’s conclusion is more nuanced. For a law to be good in the aforementioned sense, it is not enough to be rational, i.e. to be objectively good for the preservation of the city and for the happiness of its citizens. To really be good in this sense, each law must be “accepted” and “approved” (II.11) by the citizens. However, at the level of the city, rationality ceases to be the sole characteristic of the good law. The real political community is not a fellowship of wise men. It includes many “ignorant” and “unqualified people” (II.13). Therefore, the human laws will not only have to indicate the right thing to do. They will have to command the right thing to do with sanctions attached to it: “Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, nature; and in conformity to nature’s standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good” (II.13). Thus, to rule the city effectively, the prudent man’s reason will have to be watered-down until the city can consent to it. By definition, good human laws “should obtain a measure of consent instead of imposing everything by threats of violence” (II.14). In consequence, the good human laws will be a compromise solution between the rational law of the prudent man, and the (not always decent) demands of consent.

That being said, one should not make the mistake of forgetting the real and only source of any law’s legitimacy: its rationality in the prudent man’s mind. This begs the following question: if the ground of the unwise citizen’s consent to the laws isn’t wisdom (i.e. the insight in their rationality/goodness), what is it exactly? In the midst of this very sensitive deliberation, Cicero praises the philosopher whom he calls the “most learned and most weighty of thinkers” (II.14): Plato. If the human laws weren’t perfected by the prudent man’s careful interventions, then, concludes a very platonic Cicero, the city would be no different that “a gang of criminals” (II.13). Cicero’s point here relates to the limited power of consent. Whether majoritary or unanimous, consent cannot give any kind of real authority to the human laws. Even robbers frequently agree on “some rules” (II.13). To be sure, very few citizens would deny that some authoritative laws are necessary. To that extent, everybody agrees that the laws are a “good thing” (II.12). But to be obeyed when the common good requires it, the city’s laws cannot rely solely on fear of punishment and violence. To be effective and good, the laws must be seen by the citizenry as something else than a mere tool. And yet, if the citizens cannot see for themselves the real source of their laws’ authority, how will they be lawful in those moments where dedication to the common good seems to go against their own private interest?

As was indicated by Cicero in Book I, moral decency squares this circle at the level of the gentleman. However unwise, the decent man doesn’t need the command of the human law to do what is right. He will act virtuously for the sake of virtue. In the more common case of the unwise citizen who lacks moral decency, the problem of the laws’ authority is unresolved. Cicero’s solution to this last problem is another kind of law: the divine law. The prudent man who wants to rule his own political community by supplying it with an improved legal code must introduce his rational propositions with a “preamble” (II.16). This preamble will provide each citizen with a set of opinions, all of which are either “true [vera] or useful [utili]” (II.16). The citizen will believe something “true” and “useful” who will be convinced that “reason and intelligence” are present both “in him” and in the heavens and the world”, that “universal nature possesses intelligence” (II.16). By contrast, he will believe something merely “useful” if some “fear of divine retribution” is instilled in him, a fear thanks to which he will consider his own “society” as something “sacred” (II.16).

Defining the crucial role of religion for the safeguard and well-being of the political community occupies Cicero for the rest of Book II (II.18-69). Of course, in a section exclusively devoted to the positive laws regarding religion, the problem of the natural goodness of justice comes out again. To repeat, the prudent man comes to the rational conclusion that piety must be an essential component of the citizen’s virtue. The unwise man who lacks moral decency cannot see the goodness of justice, let alone the goodness of virtue. But thanks to religion, the morally blind man will regain his sight. Since the citizens can’t see the rationality or the goodness of their own laws, they will be given a substitute: the useful belief in the sacredness of their own city, and in the “deity” who is to be its “guardian” (II.42), “appointed to inflict punishment” (II.25) on those who infringe upon the city’s laws. Thereby, the unwise citizen will be given an opportunity to share in the rationality of the whole. And as a result of the prudent man’s agency, the cosmos will have been made more rational and lawful.

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Fabrice P. Beland
Fabrice P. Beland

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