Classical Natural Law: Cicero and the Stoics
by John Fielding
Classical natural law teaching recognized rights only as they were concomitants of one's position in society. Thus, one's rights and responsibilities were seen in terms of the duties one owed to others through society and the rights of one's class. These duties and responsibilities were dictated by natural law. Natural law or justice was defined "as the habit of giving to everyone what is due to him according to nature."1 Leo Strauss recognizes three different ways in which natural right2 was understood by classical thinkers. We have dealt with two: Socratic-Platonic and Aristotelian.3 The third is Thomistic. We shall examine that in subsequent parts.
In this part we shall examine Cicero's and the Stoics' distinctive contribution to the notion of natural law or natural right. Strauss takes the position that Cicero and the Stoics represent a return to the Socratic-Platonic. Strauss notes that this is due to the close relationship between "stoicism and cynicism, and cynicism was originated by a Socratic."4 Cynicism taught that the "wise man should be completely self-sufficing.... Everything except for moral character is a matter of indifference. [Thus], [t]he protest of the Cynic against social convention was a doctrine of the return to nature in the most nihilist sense of the term. The chief practical importance of the Cynic School lay in the fact that it was a matrix from which Stoicism emerged."5 Cynicism emphasized the necessity of the cultivation of moral character, but everything beside this, family, property, citizenship, learning, marriage, and other expressions of society, was indifferent. All who cultivated moral character and wisdom were "citizens of the world," but this was as a result of the positive spin placed on it by the later development of Stoicism.
The Stoics, and Cicero in particular, developed natural law more completely than either Plato or Aristotle. They did so, moreover, in a different time than Plato and Aristotle. They did so at a time when the city-state was on the wane. What was needed was a concept of natural law that was "suprasocietal" or even "supranational." Stoicism, in distinction from Cynicism, developed within the bosom of the City of Rome, which became the Roman Empire. Universal natural law became identified with Roman law.
Russell Kirk explains the Ciceronian concept of natural law:
[H]uman laws are only copies of eternal laws. Those eternal laws are peculiar to man, for only man, on earth, is a rational being. The test of validity for the state's laws is their conformity to reason.... Learned men know that "Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite. This reason, when firmly fixed and fully developed in the human mind, is Law. And so they believe that Law is intelligence, whose natural function it is to command right conduct and forbid wrongdoing. They think that this quality has derived its name in Greek from the idea of granting to every man his own and in our language I believe it has been named from the idea of choosing. For as they have attributed the idea of fairness to the word law, so we have given it that of selection, though both ideas properly belong to Law. Now if this is correct, as I think it to be in general, then the origin of Justice is to be found in Law; for Law is a natural force; it is the mind and reason of the intelligent man, the standard by which Justice and Injustice are measured." Law, then, at base is a knowledge of the ethical norms for the human being.6
Thus, natural law forms the basis in creation for our intuitions of right and wrong, and is the context for our ability to reason. Additionally, according to Cicero, the ability to discern the natural law is not limited to one nation:
True law is right reason in agreement with Nature...it is of universal application, unchanging and everlasting... we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.7
Kirk points out that the natural law, conceived as a natural moral order rather than a natural physical order, was the "moral imagination," enabling man, through the exercise of reason, to apply other laws humanely.8 The natural law is to be distinguished from that found in individual nations and cities:
For Justice is one; it binds all human society and is based on one law, which is right reason applied to command and prohibition.... But if the principles of Justice were founded on the decrees of peoples, the edicts of princes, or the decisions of judges, then Justice would sanction robbery and adultery and forgery of wills, in case these acts were approved by the votes or decrees of the populace.... But in fact we can perceive the difference between good laws and bad by referring them to no other standard than Nature; indeed, it is not merely Justice and Injustice which are distinguished by Nature, but also and without exception things which are honourable and dishonourable.9
The teaching on natural law found in Cicero provides us with an insight into the view of liberty or individual rights held by the Stoics.
Since natural law governs all, all the positions of men are derived from it. The one who rebel against its dispositions "suffer the worst penalties, even if he escapes what is commonly considered punishment."10
As a result,
The Roman People as a corporate body and the individual citizen possessed Liberty, freedom from involuntary servitude and freedom to exercise specific rights and to assume specific duties. Under this ideal of Liberty the Roman People, as a corporate entity, was its own master, free from internal domination by a monarch or by a political faction and free from subjection to any foreign power; the Roman People was thus free to exercise its sovereignty, free to determine its destiny, free to follow those laws and customs which represented the Roman way of life. As an individual, the Roman was free from the impositions of slavery; as a citizen he was free from arbitrary exactions of fellow citizens, including magistrates. He was free to enjoy a variety of rights: free to elect his own occupation, free to marry the woman of his choice, free to own slaves and to dominate his wife and children. As a citizen, he was free to participate in the assembly, free to vote, free to hold public office, free to serve in the army.11
The freedom that the Romans enjoyed was freedom to be judged equally under the Law. Thus, the Law that dominated Roman society was the matrix within which any freedoms were enjoyed. Thus, J. Rufus Fears writes:
For the Roman of the republican epoch, Liberty was entirely consistent with the dictates of the Law and custom of the commonwealth of the Roman People. The necessary prerequisite of Liberty was the renouncement of self-willed actions. Consequently, genuine Liberty could be enjoyed only under the Law. The freedoms, personal and private, which constituted Libertas, were conceived of as the rights not of the isolated individual but of the citizen within the organized community of the Roman state. The state, the laws, and the customs and traditions of the Roman People were central to the realization of Liberty.12
Therefore, under Roman Law "it is only in duty that the individual acquires his substantive freedom.... In short, the Liberty of the individual received its deepest meaning only within the larger context of the community as a whole."13
Roman Liberty, especially after the end of the republic, was thus an elaborate myth constructed "to justify and to rationalize the institutions and policies of a commonwealth based fully upon a concept of collective political authority."14 Fears points out that "with Hegel the Roman could have agreed that it is only in duty that the individual acquires his substantive freedom."15
All of this is in keeping with Rushdoony's evaluation that for all of Cicero's, the Stoics', and the Romans' speaking of the universality of natural law, natural law for the Romans was "the central and most sacred community," Rome.16 Thus, "man's basic problem was not sin, but lack of political order."17 However, the order in the world was derivative of the natural order of reason and law which was superior to God and man. As Cicero states, "Law is the highest reason, implanted in Nature.... This reason, when firmly fixed and fully developed in the human mind, is Law.... Law is intelligence.... The origin of Justice is to be found in Law, for Law is natural force."18 Thus, "this order, which is basic to both divine society and human society, makes them one world."19 That being the case, there is no preservation of individual rights against the order imposed by nature, worked out in history through the state.20 As we have seen, then, freedom is defined as those who live according to the "right" as it is defined by natural law. In the order prescribed by natural law in the Roman system, there is no true freedom and therefore no rights of individuals in terms of a demand that natural law or the state must respect.
Rushdoony remarks that "Cicero's state was as all-absorbing and total as Caesar's; the difference rested in the source of power. For Cicero, it was reason, and for Caesar, the army and raw power."21 The freedom of man for Cicero and the Romans consisted of freedom internal to man. The outward man, and his actions, were severely curtailed by the requirement of total allegiance to the state. Natural law was the source of the unlimited power of the state, and indeed, became identical to it for the purpose of ruling. Thus, for Cicero, natural good must be diluted by merely conventional right, resulting in the identification of the state with that which is "political good."22 At this point natural law fails to act as a "brake" on the latitude afforded the government. Its latitude thus failing to be limited, Cicero's Republic is as all-encompassing as Caesar's dictatorship.
John Fielding (M.A., M.Div., J.D.) is the president of the National Reform Association. He is active in politics and practices law in Berks County, Pennsylvania. He can be reached at firstname.lastname@example.org.
1. Leo Strauss, Natural Right and History, Phoenix Edition (Chicago: University of Chicago, 1965), pp. 146-147.
2. "Natural right" or the theory of the source of justice to be found in universal or natural reason is not to be confused with the modern notion of "natural rights," which has its source in man's will.
3. See, John A. Fielding III, "Classical Natural Law," The Christian Statesman, vol. 147, no. 2 (March - April 2004).
4. Strauss, op. cit., p. 146.
5. George H. Sabine and Thomas L. Thorson, A History of Political Philosophy (4th ed.; Hinsdale, IL: Dryden, 1973), pp. 136-137.
6. Russell Kirk, The Roots of American Order, 3rd ed. (Washington, D.C.: Regnery Gateway, 1991), pp. 109-11 (quoting from Cicero, De Legibus, trans. Clinton Walker Keyes [Cambridge, MA: Harvard University, 1928], I, vi.18-19).
7. Cicero, De Re Publica, trans. Clinton Walker Keyes (Cambridge, MA: Harvard University, 1928), III, xxii.33.
8. Kirk, op. cit., p. 112. Kirk believes that Cicero's version of natural law (coming as Cicero believed from God) was incorporated into the Declaration of Independence.
9. Cicero, De Legibus, trans. Clinton Walker Keyes (Cambridge, MA: Harvard University, 1928), I, xv. 42 - xvi. 44.
10. Cicero, De Re Publica, III, xxii.33.
11. J. Rufus Fears, "Antiquity: The Example of Rome" in An Uncertain Legacy: Essays on the Pursuit of Liberty, ed. Edward B. McLean (Wilmington, DE: Intercollegiate Studies Institute, 1997), p. 7.
12. Ibid., p. 12.
13. Ibid., p. 13.
16. Rousas John Rushdoony, The One and the Many: Studies in the Philosophy of Order and Ultimacy (n.p.: Craig, 1971), p. 92.
17. Ibid., p. 94.
18. Cicero, De Legibus, I, vi.
19. Rushdoony, The One and the Many, pp. 96-97.
20. Ibid., p. 97.
21. Ibid., pp. 107-108.
22. Strauss, op. cit., pp. 152-153.