Great Ideas of Philosophy

Lecture SeventeenRoman Law⎯Making a City of theOnce-Wide WorldScope: It is often observed that the greatness of Rome is by way of nothing more than the enlargement, imitation,and promulgation of that which was “Greek,” a claim that is defensible when considering much of Romanart, architecture, education, and philosophy. But the Roman development of law based on a conception ofnature and of human nature is one of the signal achievements in the history of civilization.Even as barbarian invasions and occupations of Rome transformed the cultural dimensions of life in thecity, the staying power of the Roman rule of law asserted itself. The political and social character of whatwe take to be “Western civilization” is simply unimaginable in the absence of this influence.OutlineI. It is a commonplace to note that Rome, in its art, architecture, sculpture, philosophy, and much of its literatureis beholden to Greek originals, but if there is a contribution that the Roman world made to civilization and thehistory of ideas, that contribution would be Roman law.II. Cicero’s De Legibus offers an eclectic assimilation of Platonic, Aristotelian, and Stoic philosophies into atreatise on the nature of law, the varieties of its expression, and its ultimate grounding.A. In this essay, Cicero comes to grips with the questions: What is the essence of law? What forms of law arethere? How should the law be understood? What is it that the law matches up with in us?B. Cicero makes a distinction between law as it operates differently in different jurisdictions and law as itseems to function everywhere.C. The type of law that displays variation is what Cicero refers to as the ius civile, what we would translate as“civil law” but in the sense of jurisdictional law. This law is an expression of local values and peoples.D. Cicero observes, however, that in every known community, there are certain precepts that are honoredwithout exception.1. These precepts seem to be universally understood and adopted: precepts regarding violent and lethalassaults on an innocent other, precepts involving the appropriation of what is recognized to be theproperty of another, precepts regarding fraud and deception in business transactions.2. With respect to offenses of this sort, Cicero reasons as Aristotle does in the Politics. Both note thatthere are jurisdictional differences when it comes to law, but the core principles of equity, Aristotlesays, are “universal and everywhere the same.”3. Aristotle offers Antigone’s defense as exemplary: For a sister to bury her dead brother is an act thatcould be defended before the gods themselves.4. In other words, Aristotle defines what he means by a universal principle of equity: Certain notions offairness virtually express our rationality. These do not vary from place to place. An entity in whomthese principles are not operative is one that might be human in name only but is utterly lacking in oneof the defining attributes of a human being.E. Cicero labels these principles the ius gentium, the law or the judicial principle of nations.1. The ius gentium is not transmitted from one people to another but inheres in our very nature as rationalbeings.2. By the end of the 1 st century A.D., this concept will be referred to as the ius naturale, the “natural law.”F. Here, Cicero is laying the foundations for one of the most developed theories in the philosophy of law: thetheory of natural law. It will, of course, be famously promulgated by Thomas Aquinas.1. Ignorance of this law is no excuse. One cannot commit murder and mayhem and claim as a defensethat these crimes are not recognized as such among one’s own people.2. This aspect of the rule of law is more fundamental than statutes and local ordinance. It affirms thosecore principles possessed by any being who is fit for the rule of law. Not to know this much is to beoutside the rule of law. It is to be an unnatural or defective kind of being, part of no gens (“tribe,”“nation”) at all.©2004 The Teaching Company Limited Partnership 13