Greece, Rome, and the Bill of Rights (5 page)

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Authors: Susan Ford Wiltshire

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civil jurisprudence was digested in the immortal works of the
Code
, the
Pandects
, and the
Institutes
: the public reason of the Romans has been silently or studiously transfused into the domestic institutions of Europe, and the laws of Justinian still command the respect or obedience of independent nations. Wise or fortunate is the prince who connects his own reputation with the honour and interest of a perpetual order of men.

43

The opening of the
Digest
holds that laws are of three different sorts. There is the law of the state,
ius civile
, expressing the interests of a particular community. There is the law of nations,
ius gentium
, "which men have devised for their mutual intercourse." And finally there is the law that expresses a higher and more permanent standard, the law of nature,
ius naturale
, that corresponds to "that which is always good and equitable (
bonum et aequum
)."
While this threefold distinction may have been an insertion of post-classical writers, it nevertheless expresses a practical solution formulated by Roman jurists to the problem of Rome's expansion from a municipal to a world power. Seeing local, imperial, and natural law as related creates a commonality for all legislation.
44
Stoic natural law contributed the theoretical basis for this common enterprise. As Quirinus Breen puts it:
The Roman jurist did not plan an empire, projected no blueprint for a world state. His ideal of goodness through justice was undergirded by a largeness of conception of certain guiding principles of private law. I refer particularly to his regard for the law of nature (e.g., every man is born free, even the slave) and the law of nations (e.g., the integrity of the empire's many peoples as to their nationhood, languages, customs, literatures, heroes). In truth, the civilian was right who said the Roman law (specifically the
Digest
) is "reasoned justice."
45
The Roman appropriation of natural law did not result from an intrinsic interest in transcendental speculation about the nature of law. Instead, it served what A. P. d'Entrèves calls "a quest for the intrinsic character of a

 

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given situation.''

46
For the Romans, it is probably fair to say that natural law provided a way of describing what seemed to them simply the normal facts of their concrete situation and experience. The
ius naturale
thus provided not a thoroughgoing system of legal rules but rather a means of interpretation. Together with the
ius gentium
, it helped decisively in the adaptation of positive laws, peculiar to a particular locale, into a legal system for an international or rather transnational civilization.
47
Robert N. Wilkin describes the process as follows:

When the ideal law of the Stoics came into contact with the positive law of the Romans, intelligence and enlightenment were brought to bear on traditional practice and mechanical formulas.... It established the law as a rational process, and recognized the exercise of the ethical will as a part of reason. It was not a substitute for the positive law, but served, and has served throughout the years, as a
critique
and norm of positive law. It operates not directly on positive enactments, but indirectly through the minds of men; but that which controls the minds of men will in the end master their institutions.
48
The incorporation of Stoicism into Roman thought occurred primarily through the teachings of Panaetius and Polybius in the circle around Scipio Aemilianus in the second century
B.C.
, enhanced later by the visit to Rome of Posidonius, under whom Cicero had studied Stoic philosophy at Rhodes. These teachers offered to some of Rome's leading minds a deeper insight into the relationship of human beings to nature; they adapted Stoic thought to the Roman mentality, especially in matters of ethics and politics; they taught notions of fairness by which to temper the positive laws of Roman jurisprudence; and finally they combined Stoic philosophy and Roman theology into what one observer calls a "philosophical state religion."
49
The natural law theory of Stoicism gave the Romans a basis for appealing to ancestral custom, the
mos maiorum
. Central to this process of adaptation was the Roman lawyer Cicero.

 

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The Role of Cicero
Roman law is the armature around which the Western civic project is constructed. The most articulate architect of that structure was Marcus Tullius Cicero.
Cicero was philosophically eclectic, but he had a keen instinct for the utility of Stoic natural law for Roman purposes. In perhaps his most influential work, the
De officiis
, he clearly approves of the Stoic views he represents, as he does also in the
De legibus
. Through Cicero, Stoic ideas gained favor among Roman lawyers and later among such influential fathers of the Roman Church as Lactantius and Ambrose.

50

In the
De republica
Cicero situates natural law theory within the Roman context:
True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions.... It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and 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.
51
The Roman perspective is clearly evident here. After noting the eternity and universal applicability of natural law, Cicero emphasizes its ethical force. It summons one to duty and averts wrongdoing. Neither the Senate nor the Roman people can abrogate it, and it requires no interpreter. It is the same at Athens as it is at Rome, valid for all nations at all times. Finally, the god of the Stoics, whether Zeus or Divine Reason, is the author of this law and, as it were, the jury, judge, and probation officer as well. This divine "mind of the world," however, is not an

 

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