Cicero and Modern Law

Richard O. Brooks

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351571890
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Cicero and Modern Law contains the best modern writings on Cicero's major law related works, such as the Republic, On Law, On Oratory, along with a comprehensive bibliography of writings on Cicero's legal works. These works are organized to reveal the influence of Cicero's writings upon the history of legal thought, including St. Thomas, the Renaissance, Montesquieu and the U.S. Founding Fathers. Finally, the articles include discussions of Cicero's influence upon central themes in modern lega thought, including legal skepticism, republicanism, mixed government, private property, natural law, conservatism and rhetoric. The editor offers an extensive introduction, placing these articles in the context of an overall view of Cicero's contribution to modern legal thinking.

Part I
Cicero’s Life, Predecessors and Works

[1]

INTRODUCTION TO THE PHILOSOPHY OF CICERO

RICHARD MCKEON

I. THE INFLUENCE OF CICERO

THE influence of Cicero’s writings and the interpretation of his career run in threads of debate through the major changes of Western civilization. He participated in the events which led to the fall of the Roman Republic, in the first century b.c., and his writings laid the grounds of an analysis of the conflict between freedom and despotism and of the causes of the decline of constitutional government; he has been quoted as example and as authority, with extravagant enthusiasm and equally extravagant contempt, whenever men have speculated on the beginnings of Caesarism and imperialism. His philosophy was an important ingredient in the construction of a Christian doctrine and the establishment of scholastic logic from the fourth to the sixth century a.d.; and many of the scholars who declared themselves in revolt against scholasticism, during the period of the Renaissance a thousand years later, derived their inspiration and weapons from Cicero. The philosophers and politicians who undertook during the eighteenth century to construct a new philosophy based on the new science and congenial to the principles of constitutional democracy returned to a renewed study of his works.

The character of Cicero, as well as his ideas, has entered into the discussions that have determined major turns of doctrine and policy; but, what is more important, the distinctions which underlay the discussion, whether it eventuated in Cicero’s conclusion or in opposition to it, have been influenced significantly by Cicero’s formulation of problems and oppositions. Even his harshest critics have usually condemned him in his own terms. His strength and his weakness lie in the simplicity and the adaptability of the distinctions by which he explained his times and traced the history of ideas and of forces that culminated in the institutions and manners of Rome. Cicero’s fundamental ideas are powerful implements of debate and propaganda in spite of their ambiguity in application. The controversial and practical applications of his commonplaces, even in periods when Cicero himself was little studied or admired, are themselves worthy of study in the diagnosis of the problems of Western civilization and culture.

Cicero’s style, his character, his services to the Republic, the accuracy of his statements about his achievements, his hesitancies, and the wisdom and effectiveness of his opposition to Caesar and Mark Antony were all subjects of praise and criticism by Roman poets, rhetoricians, and historians. Quintilian (a.d. ca. 35–ca. 100), who was one of Cicero’s great admirers and who reduced the doctrines of rhetoric on which Cicero had worked to schematic form in a program of education, answered some of the adverse judgments. “Cicero” had ceased to be regarded as the name of a man and had become the synonym of “eloquence”;¹ yet Quintilian defended Cicero against allegations that his style was bombastic, Asiatic, redundant, excessive in its repetitions, and sometimes pointless in its witticisms.² Moreover, like many Romans, Quintilian found it impossible to separate questions of character from questions of eloquence. He quoted the definition of the orator (attributed to Cato by Seneca) as “a good man learned in the ways of speaking,” and he defended Cicero against the accusation that he lacked decision and courage. As evidence that Cicero never failed in the duties of a good citizen, Quintilian cited the nobility of his conduct as consul, the rare integrity of his provincial administration, his refusal of office under Caesar, and the firmness of his mind, yielding to neither hope nor fear, during the Civil Wars, which came heavily upon him during his old age.³ Quintilian could explain Cicero’s tendency to boast of his exploits in his speeches, as well as the hesitancy and timidity disclosed in his letters; and he found in Cicero both the closest approximation to the perfect orator and also the standard of literary taste and achievement. De Quincey’s insight into the peculiarity of Cicero’s place in the political disputes in which he was entangled applies also to disputes about his ideas and character: he has not benefited from the uncertainties of partisan differences to which his was one possible solution, but rather his formulation has given amplitude to the problems that he treated and has determined the significance of both parts of the oppositions in which he was involved.⁴

The influence of Cicero on the formation of Christian doctrine in the West can be found both in the philosophic principles and arguments from which it was constructed and in the logical and rhetorical methods employed in its construction. Christian doctrine is sometimes viewed as antithetical to the methods of Cicero, which were adapted to pagan virtues and applied to skeptical arguments–sometimes as complement and completion to insights that were almost Christian. The style and devices of eloquence elaborated by the pagans were imitated and adapted by many Christians; but the words, like precious vessels, contained wine of error, as Augustine confessed, and many Christians were, like Augustine, revolted, in turn, by the crudities of scriptural style and by the infidelities of pagan ideas. Writers during the Renaissance were fond of calling Lactantius “the Christian Cicero,” and the fourth century a.d. has been named the “Ciceronian age,” aetas Ciceroniana, with an enlarged list of Christian Ciceros which includes Minucius Felix, Cyprian, Arnobius, Lactantius, Ambrose, and Jerome.⁵ Lactantius considered Cicero “not only a perfect orator, but also a philosopher, since he is the only one who conforms in all respects to Plato”;⁶ and he made use of Ciceronian doctrines in two ways which became traditional in later Christian literature: the skeptical arguments of the Academics repeated by Cicero are indication that he has a higher spiritual insight than he expresses, for the paradoxes of justice and self-interest and the rational refutation of providence and miracles present problems which can be resolved only by Christianity; on the other hand, the Stoic distinctions between moral rightness (honesta) and usefulness (utilia) from Cicero’s On Duties and the proofs for the immortality of the soul from the Tusculan Disputations (which is also known by the title On the Blessed Life) can be adapted to higher Christian uses. Ambrose borrowed not only the title of his work On the Duties of Ministers from Cicero’s On Duties but also the main divisions of his subject, rectified and supplemented by the conception of a future life with its rewards and punishments. Jerome confessed that he found the style of the prophets crude when he returned to them after reading the classics; and the library which he took with him to the desert in Syria and the pleasure which he found in Cicero in the midst of his fasting so troubled his conscience that he dreamed he was accused before the judgment seat of God of being a Ciceronian rather than a Christian.⁷ Augustine told of the profound spiritual effect made on him by the reading of Cicero’s Hortensius, an introduction to philosophy; he constructed his City of God in opposition to Cicero’s arguments against providence and to his conception of the republic; and his elaboration of a method of interpretation in his work On Christian Doctrine depends largely on distinctions borrowed from Cicero’s rhetoric, such as the fundamental division of the problems presented by Scripture into problems of discovery and statement, concerned, respectively, with things and signs. Boethius, a century later, laid the foundations of medieval logic by borrowing from Cicero the same distinction between discovery and judgment or statement to mark the major divisions of the “Aristotelian” logic and by substituting a discussion of commonplaces, in the Ciceronian manner, for the Aristotelian discussion of scientific first principles.

During the Renaissance, Cicero served as inspiration to many of the reactions against scholasticism: his style was used as a model to correct the barbarisms of medieval Latin; his rhetoric suggested reforms in logic, dialectic, and scientific method; his subordination of theory to practice and his identification of the wise man with the man of action were fundamental assumptions in the pragmatic philosophies, programs of education, systems of jurisprudence, and utopian political speculations of the period. Petrarch expressed admiration for Cicero’s intellectual powers and amazement at his command of language. Everything pleased him in Cicero except the fickleness of character and inconstancy which he found in Cicero’s letters. But, like Jerome, he feared that he might be thought a poor Christian because he declared himself so much a Ciceronian. He argued that there is nothing in Cicero contrary to the word of Christ, but he added that he would abandon any philosopher–Plato, Aristotle, or Cicero–if he contradicted the tenets of Christianity. Erasmus satirized the excessive Ciceronians who modeled their style on the vocabulary and syntax of Cicero, but he thought the moral doctrines of Cicero more Christian than much of the discussion of theologians and monks, and he would willingly have burned the theological works of Duns Scotus to save the philosophic treatises of Cicero. Pomponazzi, on the other hand, found in Cicero arguments against the immortality of the soul and against providence and miracles. Augustine had used Cicero’s treatises On the Nature of the Gods and On Divination as a source of arguments to show the insufficiencies of pagan religions; during the Renaissance they were used as a source of arguments against religion as such and against the principle of authority. From that tradition there originated doctrines that have been called variously “rationalism,” “libertinism,” “free thought,” “atheism,” and “deism”; and in that tradition “rationalism” acquired its modern connotation of “skepticism.” Voltaire also connected Cicero with that tradition when he exclaimed: “We hissed them off the stage then, those rude scholastics, who ruled over us so long; we honor Cicero, who taught us how to think.” Philosophy was also reformed under the inspiration of Cicero in attempts, like that of Nizolius in his treatise On the True Principles and True Reason of Philosophizing against Pseudo-philosophers, to join science and literature, philosophy and eloquence, theory and practice, by the methods of discovery and judgment elaborated in Cicero’s rhetoric.

In the eighteenth century Cicero was admired both for his style and for the “spirit of freedom” manifested in his activities as a public man in the last days of the Roman Republic. Gibbon described him as a “library of eloquence and reason”:

I read, with application and pleasure, all the epistles, all the orations, and the most important treatises of rhetoric and philosophy; and as I read, I applauded the observation of Quintilian, that every student may judge of his own proficiency by the satisfaction which he receives from the Roman orator. I tasted the beauties of language, I breathed the spirit of freedom, and I imbibed from his precepts and examples the public and private sense of a man. Cicero in Latin, and Xenophon in Greek, are indeed the two ancients whom I would first propose to a liberal scholar; not only for the merit of their style and sentiments, but for the admirable lessons, which may be applied almost to every situation of public and private life.⁸

Hume distinguished between the easy and practical philosophy, which considers man as born to action, and the accurate and profound philosophy, which views him in the lig...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Cicero’s Life, Predecessors and Works
• Part II The Roman Law and Rhetorical Practice
• Part III Cicero’s Works
• Part IV Cicero’s Method of Thought
• Part V The Collapse of the Republic and the Death of Cicero
• Part VI CICERO’S INFLUENCE ON WESTERN CIVILIZATION
• Part VII Cicero and Modern Political, Legal and Rhetorical Ideals
• Name Index