Laws and Justice
Abstract and Keywords
This chapter discusses Cicero's positions on legal matters. After a survey that brings various facets of this complex and complicated topic into view, the analysis focuses on how he deals with the perceived non‐coincidence, or even conflict, between (positive) laws or legal institutions and justice. Case studies include his philosophy of crime and punishment in the in Pisonem, which serves as a rhetorical substitute for malfunctioning law courts; and his appeal to the authority of natural law as a benchmark and justification of political action, above all in the Philippics.
Social theorists, such as Niklas Luhmann, consider ‘functional differentiation’ a hallmark of modern society. They do not deny that interdependences between the various subsystems (such as politics, economics, or law) exist—quite the contrary; but they emphasize that each subsystem observes and processes the world according to its specific code and logic, only accepting those connections and stimulations from other functional circuits that are essential to its own operations.1 For various reasons, legal scholars have long had the habit of studying the history of their subject as if this state of affairs already applied in the distant past, understanding law as a sphere of thought and practice that by and large followed its own set of principles and protocols. But one may recognize, surely, the distinctive logic, status, and function of legal thought and practice in Roman society (and changes therein over time), without the need to endorse the proposition that ‘Law’ developed ‘ohne Anforderungen und Ansprüche der Politik’ (‘without importunities or demands from the sphere of politics’) in the last three centuries of the republic.2 Within more circumscribed temporal limits, Bruce Frier has identified the last century of the republic as the period when jurisprudence began to acquire a significant degree of functional autonomy:3
…the jurists began to study and manipulate the materials of private law in a disciplined, rational fashion: they enunciated and organized existing legal rules in a convincing presentation, they discovered and described the systematic boundaries and internal articulation of private law, they deduced fundamental principles and concepts of law, and they applied these principles and concepts in the coherent development of new legal rules and institutions.
On the level of discourse, this model remains persuasive.4 Legal doctrine was, after all, not the only body of knowledge that underwent a ‘cultural (p. 169 ) revolution’ at the time or, to use a less grandiose term, reorganization through (at times self‐proclaimed) specialists, trained in Greek ways of thinking.5 Again, however, it is crucial to differentiate sharply between the formal techniques of dialectics used to endow a body of thought with structure and coherence, and the influence of philosophical ideas (of Stoic or other provenance) on legal doctrine or practice: there is as much evidence for the former as there is next to no evidence for the latter, despite a significant body of scholarly myth‐making.6 And the rise of the jurists and developments in the discourse of jurisprudence ought not to obscure the fact that non‐legal factors continued to play a vital role in all legal activity throughout the republic, if not beyond. The administration of the ius civile by the urban praetor and jurisdiction more generally, access to legal advice and representation in court, and practices of jurisprudence remained ‘socially embedded’ activities—impossible to separate from the wider political culture of republican Rome, with its hierarchies, networks, and economies of services.7
The same interlocking of technically legal and extra‐legal considerations is of course also apparent in the ius publicum and the criminal courts. Indeed, as E. S. Gruen has shown, the second half of the second century bc was a period that witnessed both ‘the slow regularization of the criminal court structure’ and ‘its greater and greater involvement in Roman politics’, since the new legal institutions offered the welcome option to pursue political conflicts and rivalries by other means. The phenomenon was certainly not unknown in earlier times, as witnessed by the famous trials of the Scipios, ‘but the gradual installation of regular criminal procedures after 149 added a new dimension and greatly expanded the opportunities for this unholy alliance’ of politics and judicial action.8 The evolution of legal institutions, in other words, had the unintended consequence of exacerbating conflict, thus proving to some degree dysfunctional in the republican system of senatorial government that had much invested in consensus. As Gruen notes for the period from the lex Calpurnia, which instituted the first quaestio perpetua (149), to the laws passed by Sulla (82–79), ‘legislation was swiftly passed and as swiftly repealed. (p. 170 ) Control of the judiciary changed hands five times within the era under scrutiny’9—and Sulla's reorganization of the quaestio‐system, designed to ensure long‐lasting control of the judiciary by the senatorial elite, was of course itself short‐lived.10
Moreover, the late Roman republic is characterized by the seemingly paradoxical coincidence of an ever‐increasing number of laws with an ever‐increasing willingness to operate outside the traditional legal order. As Tacitus famously put it: corruptissima re publica plurimae leges.11 And yet, despite the fact that the willingness to abide by established procedures and regulations became less pronounced among members of the senatorial elite during the last decades of the republic, legal politicking at Rome remained very much committed to criteria and considerations of formal correctness. Thus when the senate declared a law passed by the assembly null and void because ‘the law was not passed in accordance with ius’ (lex non iure rogata)—a novel practice that seems to have originated in senatorial opposition to the legislation passed by the tribune Appuleius Saturninus in 100 bc—ius referred to procedural aspects or technical flaws that had occurred during the rogation, such as violations of sacred regulations (contra auspicia) and disregard for the protocols that governed legislative activity as codified in the lex Caecilia Didia and the lex Iunia Licinia.12
Still, the breakdown of consensus generated severe conflicts at the constitutional level: the people's sovereign privilege to pass legislation clashed with the right of certain magistrates, frequently backed by the auctoritas of the senate, to exercise a veto in the form of obnuntatio. Likewise, legislation and senatorial policy in the wake of Tiberius' murder in 133 bc generated the irreconcilable tension between the lex Sempronia, which outlawed the executions of citizens without trial, and the senatus consultum ultimum, which invested magistrates with extraordinary powers to ensure the safety of the commonwealth, via the auctoritas of the senate as the body thought to be endowed with the best understanding of what was necessary to guarantee the survival of the state. As J. Bleicken puts it: ‘Der grundsätzliche Zwiespalt der Standpunkte blieb unaufhebbar, weil die dahinterstehenden politischen Richtungen unverträglich waren.’13 Thus in a prequel to Cicero, the Catilinarians, and Clodius, L. Opimius deemed himself to be authorized by a senatus consultum ultimum to execute C. Gracchus and his followers, only to be (p. 171 ) condemned eleven years later in a quaestio set up by the tribune C. Mamilius Limetanus. Here the aggravation of political conflict brought to light (or generated in the first place) conflicts within constitutional principles or arrangements that had evolved in a rather different political climate.
Cicero's approach to advocacy and his political choices and career in many ways epitomize the interlocking of legal and legislative activity and (power) politics during the last century of the republic. The arguments of his law‐court speeches illustrate the distinctiveness, if not autonomy, of ‘the law’, but also the fact that judges and juries were not averse to listening to, and could perhaps even be swayed by, considerations that were not technically legal. Needless to say, he always tried to show that the letter and spirit of the law were on his side, together with truth (veritas) and fairness (aequitas): the Romans, after all, ‘did, or at least wished to, “believe in their verdicts”’14—even though he of course spun, twisted, or obfuscated the actual facts of the matter whichever way he thought most conducive for his cause. In terms of advocacy, there is no contradiction between Cicero appealing to the truth and being economical with it. Indeed, his appeals tend to be particularly intense in those moments when he freely invented his ‘facts’: in the pro Cluentio, he turns appeals to veritas into something of a leitmotif (it is, not least, the final word of the speech), only to boast afterwards that he had shrouded the judges in a web of falsehoods.15 At the same time, he also routinely provided further, non‐legal reasons in support of his causes, such as considerations of pity or politics. In the pro Murena and elsewhere Cicero thus submitted that the criterion of political exigencies outweighed the question of whether the defendant was guilty as charged: in a moment of crisis, the commonwealth simply could not afford to be without one of its main magistrates.16
However, in addition to operating within the legal order, Cicero's oratory is also distinctive for its tendency to articulate views on the legal order (or elements thereof), often in a highly critical spirit. These reflections, by which he (as it were) stepped outside the rules of the game to comment on it, address, not least, the potential or actual non‐coincidence, or even conflict, between laws or legal institutions and justice (section 1). Against this wider background, the two subsequent sections of this chapter focus on situations in which Cicero invoked, more or less forcefully, (higher) considerations of law, justice, and modes of punishment, over and above, indeed in contradistinction (p. 172 ) to, positive law: his philosophy of crime and punishment in the in Pisonem, which serves as a rhetorical substitute for malfunctioning law courts (section 2); and his appeal to the authority of natural law as a benchmark of political action, above all in the Philippics (section 3).
1. Cicero and the Law
Cicero engaged with and reflected on legal matters in diverse contexts and from a wide range of perspectives. He made a name for himself as a high‐flying advocate or prosecutor in various types of law courts. He backed, proposed, or opposed bills in the senate and the forum. As consul, he masterminded the execution of the Catilinarians, which he deemed to be justified under the terms of the senatus consultum ultimum, but was soon forced to realize that his triumph contained the seeds of tragedy and his victory would come back to haunt him as he became the target of hostile legislation. And he extensively reflected on law and legal issues in his philosophical writings, often in direct response to personal experiences, with explicit recourse to a wide range of Greek thinkers, in particular Plato, Aristotle, and the Stoics. In the de Republica, Cicero turns ius into a foundational principle of civic life;17 and in the de Legibus, he develops a law code grounded, above all, in the natural‐law doctrine of Stoicism but also manifesting Platonic influence.18
Cicero's lexicon of legal terms is extensive, and it is not easy to establish clear‐cut semantic correlations between mos, lex, ius, or aequitas, as well as various compounds such as lex humanitatis, ius civile, or ius naturale, especially if one recognizes that he manipulated the meaning of these terms as it suited him.19 The conflicting ways in which he correlated ius and mos are symptomatic. In the speech for Cornelius, for instance, he argued that the actions of his client may have contravened the latter, but were in conformity with the former, endorsing technical legality as the decisive criterion;20 yet in other places he was not beyond elevating mos over ius, and be it for rhetorical effect: in the days of yore, he proclaims in the pro Balbo, Pompey could have acted against ius publicum without anyone raising an eyebrow (Balb. 16), thereby invoking an alleged tradition to justify a potential breach of traditional legal principles. But perhaps the most distinctive theme in Cicero's (p. 173 ) reflections on Rome's legal practices and institutions is his concern that they do not necessarily guarantee justice. Although he viewed law and a functioning legal order as absolutely crucial for civic life, the spectre of their suspension in periods of violence or their infiltration by the wicked is a powerful presence in Cicero's oratory throughout his career. More specifically, he identified three main threats to Rome's legal order, the principle of fairness, and ius in its constitutional sense as underwriting internal peace and justice, all of them intimately related to his personal background and experiences: the arbitrary will of an omnipotent ruler (or tyrant) (1.1); the distortion of legal processes by established nobiles through the application of extra‐legal resources such as wealth, family connections, or accrued social and symbolic capital (1.2); and revolutionary violence (tribunicia licentia) (1.3).21
1.1 Omnipotence and Tyranny
The impact of tyranny on republican politics and Rome's legal order is a key preoccupation of Cicero, long before Caesar's rise to power. Sulla's proscriptions formed the dire backdrop to the first case he argued in a quaestio perpetua, and Cicero, far from avoiding ‘any whispers of criticism of Sulla’,22 took care to script an oblique indictment of omnipotence into his defence of Sextus Roscius. It was not just that monarchy as a system of government was radically and irreconcilably at variance with the norms and values, beliefs, and preferences of republican culture. With a tyrant in charge, society and its legal order become subsumed under the will of an individual: the safeguards of due process, the autonomy of institutions and procedures, even the network of social roles and their associated normative expectations, become suspended. Ironically, one of the most striking articulations of the point that tyrants collapse the distinction between lex and their voluntas or libido, substituting their will for positive law or more generally the legal order, occurs in the ps‐Sallustian invective against Cicero, with the author resorting to his target's own idiom of abuse (5):23
(p. 174 ) immo vero infelicem et miseram, quae crudelissimam proscriptionem eam perpessa est, cum tu perturbata re publica metu perculsos omnes bonos parere crudelitati tuae cogebas, cum omnia iudicia, omnes leges in tua libidine erant, cum tu sublata lege Porcia, erepta libertate omnium nostrum vitae necisque potestatem ad te unum revocaveras.
[Rather, hapless and wretched [sc. during your consulship] Rome suffered that most pitiless proscription when you with the commonwealth in turmoil forced all good men, who were stricken with fear, to obey your pitiless policies, when all the law courts, all the laws were in the power of your personal whim, when, after rescinding the Porcian law and abolishing freedom, you usurped the power of life and death over all of us.]
Apart from stressing cruelty as a hallmark of tyrannical regimes, the passage explores the constitutional implications of tyranny, in particular the transformation of the res publica, the shared possession and concern of all members of the citizenry, into a res privata, the sole possession of the tyrant, and the ensuing substitution of lex with libido, in the sense of ‘criminal capriciousness and arbitrary despotism’.24 With the commonwealth having become coextensive with the house (domus) of the tyrant, the tyrant turns into the pater patriae or dominus of all his subjects (formerly known as free citizens), over whom he exercises patria potestas, which found its most striking articulation in the ius vitae necisque. The legal condition that the subjects of a tyrant find themselves in is thus tantamount to slavery (servitus)—as the author of the invective goes on to deplore, taking a leaf out of the propaganda of Clodius, who sealed the expulsion of Cicero from Rome by dedicating a shrine to the goddess Liberty on the site of Cicero's house (6). As we have seen, Cicero's own benchmark for tyrannical regimes was the reign of Sulla, and he retrospectively turned him into a negative exemplum for the illegal and illegitimate imposition of his will upon society at large, often in the context of charging his present adversaries with being worse than the dictator in elevating personal desires to the status of law.25 Sulla's regime and its aftermath also served Cicero to bring out the antinomy of tyranny and law (Agr. 3.5):26
Omnium legum iniquissimam dissimillimamque legis esse arbitror eam quam L. Flaccus interrex de Sulla tulit, ut omnia quaecumque ille fecisset essent rata. nam cum ceteris in (p. 175 ) civitatibus tyrannis institutis leges omnes exstinguantur atque tollantur, hic rei publicae tyrannum lege constituit. est invidiosa lex, sicuti dixi, verum tamen habet excusationem; non enim videtur hominis lex esse, sed temporis.
[Of all the laws I believe that to be the most unjust and utterly unlike a law, which the interrex L. Flaccus passed about Sulla, namely that everything he had done was to be valid. For while in other citizenries once tyrants have been established in power all laws are rendered void and are eliminated, he approved through law the tyrant of the commonwealth. It is, as I said, a hateful law, but it still has an excuse; for it seems to be a law not of human design but of historical circumstances.]
In conditions of tyranny, so Cicero here implies, a law is not always a law; and the passage indeed puts the signifier lex (and the reality of law) under significant semantic pressure. The superlative attribute iniquissimam, together with the genitive omnium legum, sets the tone: the formulation dissociates in principle lex and aequitas, law and fairness, and suggests a range of possible correlations, from coincidence to (as in this case) complete disjunction: Flaccus' lex enacts not aequitas but its opposite; and once Cicero has established aequitas as a criterion for the evaluation of laws, he proceeds to suggest, taking the oblique further step that fairness is not just a desirable but a necessary quality of law, that this apparent law is not a law at all: it is in fact its exact ‘other’ (dissimillimam). The reason for his harsh condemnation resides in the perversity that the law tied together tyranny and legality, which normally are diametrically and irreconcilably opposed to one another. As elsewhere, the historical perspective on Sulla's regime and its aftermath serves as a foil for a present that is even worse: despite the fact that the law was hateful (invidiosa: Cicero is back to recognizing the legal status of the law, and articulating his disapproval via choice attributes), there was a reason for it: historical exigency. The distinction between lex hominis and lex temporis is an ingenious, underhanded way of introducing a whiff of anthropological ethics into Cicero's legal discourse: no (upright) human being would pass or endorse a law such as this if he were not forced to do so by historical circumstances and against his better understanding. In the present context (i.e. 63 bc) no such circumstances exist, hence it would surely be perverse for the people to pass a bill (Rullus' agrarian legislation) that outdoes the retrospective recognition of Sulla's laws in its tyrannical implication, and Cicero succeeded in making his case. But he did so by invoking the constitutionally problematic (though in situations of tyrannical yet legally sanctioned violence also courageous) principle that technical validity does not by itself guarantee the legality, let alone the justice, of specific laws.
(p. 176 ) 1.2 Corruption
In addition to impugning his opponents for trying to benefit from tyrannical lawlessness (as he did in his first criminal case, the pro Sexto Roscio), Cicero routinely charged them with corrupting law and justice, especially by means of illicit influence (potentia). Thus, early on in his first civil case, the pro Quinctio, he ascribes the fact that he has to speak first to the unfairness and injustice of the praetor (§ 9: id accidit praetoris iniquitate et iniuria), who, so Cicero goes on to claim, has succumbed to the influence (gratia) and power (potentia) of his adversary's noble backers; and they in turn had agreed to help satiate Naevius' greed (cupiditas) by providing legal representation. Twice in the speech, Cicero uses nobiles and potentes all but synonymously, and charges the prosecution with abusing their social rank and standing, in essence crushing veritas with vis.27 Put differently, the law courts are in danger of becoming sites for the enactment of illegal violence.28 In the pro Quinctio and elsewhere, he engineers this paradoxical inversion by turning legal squabbles over right or wrong, guilt or innocence, or political disagreements into confrontations that pitch good and depraved human beings against each other.
Similarly, in the Verrines, he begins by evoking the hatred of the senatorial order (invidia vestri ordinis) and the disgraceful reputation of the law courts (infamia iudiciorum), and then proceeds to attack the intolerable influence (intolerabilis potentia) of Hortensius, indeed his reign over the law courts (dominatio regnumque iudiciorum).29 In part, this rhetoric, which is particularly pronounced at the outset of Cicero's career, derives from his status as newcomer and homo novus; he had to hold his own against established orators, who could draw on significant social and material resources and bring to bear their accumulated auctoritas. After the passing of the lex Aurelia in 70 bc, which assigned responsibility for the criminal courts to the knights, attacks on specifically senatorial corruption were of course by the way. (Indeed, there is compelling evidence that from then on Cicero himself benefited from his special relationship with the equestrian order.30) And yet, he continued to invoke the possibility that wicked individuals hijack (p. 177 ) legal institutions and procedures, supposed to bolster civilized society by enabling the just resolution of conflicts, for their own evil purposes.
More generally, in arguing his cases, Cicero not only addressed the question of who was right according to the law; in addition, he systematically placed the proceedings within larger, extra‐legal frames by charging the opposition with an abuse of the legal system. Logically, this rhetorical ploy pre‐empted the trial, insofar as it implied that the prosecution, in pursuing the charge, tried to turn legal procedure and the law courts into sites for the pursuit of unjust ends by illicit means. The judges were thus placed in a quandary: if they sided with Cicero's opponents, they would (so Cicero implies) abet in the miscarriage of justice and subvert and destroy the legal order they were charged with representing and preserving. Meant to be independent arbiters of legal guilt or innocence, right or wrong, the judges were thus notionally put on trial as well, and in Cicero's rhetorical tribunal they were being judged not just by legal but also by ethical or political criteria. To gain this wider perspective on the law courts and their personnel, Cicero resorted to conceptual resources that had little, if anything, to do with Rome's positive law code, but with a self‐designed code of civic ethics and perceived violations thereof through the abuse and manipulation of social resources.
1.3 Revolutionary Violence
Even before his feud with Clodius, Cicero raised the spectre of anarchy or the cooption of law courts and legislative assemblies for unjust political ends or revolutionary machinations, and identified the lawlessness of tribunes (tribunicia licentia) as operating outside of, indeed, threatening to destroy, Rome's legal and socio‐political order.31 And when Caesar, in 59 bc, undertook to transfer his arch‐enemy from patrician to plebeian status, thus rendering him eligible for election to the tribunate, he turned from commentator into a target, in what should become one of the defining experiences for his outlook on the world. Once in office, Clodius exploited the current balance of power and his own popularity with the people to turn Cicero into a state criminal under the law. At the end of January or the beginning of February 58 bc, he promulgated a hugely popular bill entitled lex de capite civis Romani, which specified that fire and water be denied to whoever killed or would kill a Roman citizen without trial.32 The bill was held in general terms, but Cicero (p. 178 ) felt that Clodius was taking aim at his Achilles heel: the execution of the Catilinarians without trial. He put on mourning—a tactical mistake, as he would later concede in that he thereby all but admitted that the legislation was targeted at him—and when Clodius increased the pressure, he left the city, one day before the bill became law. To make his victory permanent, Clodius passed a second piece of legislation (the so‐called lex de exilio Ciceronis) that was designed to make the banishment permanent and also included provisions for the dedication of an altar to the goddess Liberty on the site of Cicero's Palatine house. Cicero of course realized that the two pieces of Clodian legislation were technically laws, even though he considered the second a privilegium; and he tried to challenge the legality of both, according to the logic of legal formalism, in various ways.33 But in his preferred version of the events, which he promulgated tirelessly in his post‐reditum speeches, Cicero portrays himself not as victim of the law, but of violence and anarchy, in which legal institutions and due process have disappeared; a passage from the pro Sestio, in which he recalled how one of his supporters argued his case in the senate, is representative of the rhetoric (Sest. 73):
tum princeps rogatus sententiam L. Cotta dixit id quod dignissimum re publica fuit, nihil de me actum esse iure, nihil more maiorum, nihil legibus; non posse quemquam de civitate tolli sine iudicio; de capite non modo ferri, sed ne iudicari quidem posse nisi comitiis centuriatis; vim fuisse illam, flammam quassatae rei publicae perturbatorumque temporum; iure iudiciisque sublatis, magna rerum permutatione impendente, declinasse me paulum…
[Then L. Cotta, who was first asked for his opinion, stated a view most worthy of the commonwealth, namely that I had been dealt with without regard for our legal order, the custom of the ancestors, or the laws; that no one could be eliminated from the citizenry without trial; that about capital matters not only can no law be proposed, but no judgement can be reached unless in the centuriate assembly; that what happened was an act of violence, the conflagration of a shaken commonwealth and of chaotic times; that, with the legal order and the law courts abolished, with a great revolution imminent, I stepped aside for a short while…]
Cicero here strategically conflates the two Clodian laws, as a first step toward removing the proceedings from the legal sphere altogether. In his summary of Cotta's opinion, Clodius operated outside Rome's legal and historical order (ius, mos maiorum) and without consideration of the laws. Indeed, his time in office more generally saw the abolition of Rome's legal order and the law courts (ius, iudicia), and the real danger of bloodshed and revolution. Far from being a criminal found guilty under the law, Cicero makes out that he (p. 179 ) voluntarily stepped aside to save the commonwealth from the outbreak of apocalyptic violence.
This, however, was a minority view. For most senators, a law was a law—even when passed by a rogue tribune, or even when upholding it meant the collapse of the commonwealth. As Cicero himself notes in the de Domo sua, several high‐ranking senators (clarissimi viri, principes civitatis) considered Clodius' bill tantamount to the funeral of the commonwealth, but since the funeral took place without infringement of the auspices, it happened in accordance with Rome's legal order—however wretched and bitter the affair might have been.34 And at the end of the de Provinciis Consularibus Cicero again remonstrates with the legalism of his senatorial colleagues, who, on the grounds of obnuntatio, considered the laws that Caesar passed during his consulship not technically valid laws, but deemed the two Clodian laws aimed at Cicero perfectly valid, even though they amounted to a proscription of Cicero against the welfare of the commonwealth (proscriptio capitis mei contra salutem rei publicae), since they were passed salvis auspiciis, in other words without any infringement of the auspices. A reiteration of the paradox from the de Domo sua follows (Prov. 45):35
itaque vir summa auctoritate, summa eloquentia dixit graviter casum illum meum funus esse rei publicae, sed funus iustum et indictum.
[Therefore this man of the highest esteem and eloquence said emphatically that my case was the funeral of the commonwealth, but a funeral in accordance with our legal order (iustum) and properly proclaimed.]
In time, and with a shift in the balance of power, the senate passed a law, the lex de reditu, drafted by Pompey and passed by the people on 4 August 57 bc, that superseded Clodius' lex de exilio and allowed Cicero to come back to Rome. But this also shows that the senate, despite the opinion of Cotta and others, did ultimately recognize the validity of Clodius' legislation, in other words it did not adopt Cicero's view that he had become the victim of extra‐legal violence.36
The above survey has shown that, while Cicero was (strategically) invested in the rhetoric of truth, the workings of Rome's legal order, and the logic of the law, he appraised the realities on the ground against a notional (theoretical) (p. 180 ) ideal and often found them severely wanting. In practice, the sphere of legal activity was as much an arena of aequitas as of iniquitas. On those grounds, Cicero deemed it justifiable to question the functional autonomy of positive law and formal legal procedure: they were in principle integral components of Rome's legal order and helped to sustain society and civilization—but not in and of themselves. Bitter personal experience further fuelled his conceptual forays into legal philosophy and accounts for his development of perspectives outside of, or in conflict with, positive law, including its ideology, procedures, and outcomes, in a quest for justice outside legality. While he elsewhere is a strong proponent of the absolute validity of the laws, in the 50s bc Cicero also began to bristle at the formalism of Roman legal procedure, which presupposed a technical rather than a substantive conception of justice, considering it a cover for the cowardice of his senatorial colleagues in the face of his maltreatment at the hands of Clodius.
For Cicero, then, two entities stood over and above legal procedures and legislation: the res publica and justice. And although in theory (the de Republica) justice assumed foundational importance for any commonwealth deserving of the name, in practice he acknowledged the possibility of a tension between justice and the interest of the res publica—in which case the latter took precedent.37 Once he had determined that exclusive reliance on the specific logic of legal formalism, whether in the law courts or the legislative assemblies, was insufficient to guarantee either justice or the survival of the state, Cicero turned to philosophy, not least to combat and undo the perceived injustices enacted by actual pieces of legislation:
In Cicero's view, however, a law may not be a law for philosophical‐ethical reasons, i.e. because it fails in its essential and fundamental purpose to separate what is just from what is unjust and to contribute to the maintenance of the commonwealth and the welfare of the citizens (e.g. Leg. 2.11–13). Their right to existence can naturally not—or only in part—depend on the legitimacy of the procedure through which they came into force; rather, it is measured according to philosophical or theological criteria, such as the question of absolute justice or of the best commonwealth. It is evident that such a conception of law is unsuited for use in everyday political practice; if at all, it can only serve specific legislative bodies as a philosophical‐moral guiding principle, which, however, must remain subjective by definition and can only acquire binding force in society through an accepted tradition that has normative force or a procedure that establishes norms.38
(p. 181 ) In the Roman arena of power as a whole, Cicero's views seem to have been quite marginal, and L. A. Burckhardt, in his discussion, consigns them to an aside in a footnote, mirroring the extent of their likely importance in actual practice. At the same time, Cicero did not limit his quest for justice and his other unorthodox views on law and legal procedures and institutions to his philosophical treatises; if often (though not always) obliquely, they are also very much present in his speeches. The following two sections explore several particularly striking instances.
2. Punitive Justice: Crime and Punishment
The realization of justice, which one may loosely define as the maintenance or restoration of equilibrium in social relations, can take various forms and include a wide range of punitive measures and principles, such as the logic of double payback or an eye for an eye. The primary agents of justice in advanced societies tend to be the law courts and legal sanctions; but if the law is deemed to afford no protection or the injustice suffered seems excessive, the injured party (together with those who share its sense of outrage) may well decide ‘to take justice into its own hands’—though the leeway to do so differs from culture to culture, as does the response of the legal system to those who choose to take vigilante action, thereby appropriating its function. As we have seen, some conceptions of the human being posit an instance that enacts (self‐)punishment for specific acts of transgression as an essential aspect of our nature. And the cosmos itself can be construed as a sphere of justice, in which divinities see to it that matters are ultimately worked out in a rough (and not always timely) sort of way (‘the justice of Zeus’), an afterlife defined by a final judgement ensures that all ultimately receive what they deserve (witness Plato's eschatology in Republic 10), or punitive agents exact vengeance from beyond the grave.
Cicero operated with all of these possibilities and various combinations, as it suited him. Thus in the Verrines, he graphically invokes the powers of conscientia and the spirits of retribution of those whom Verres unlawfully executed;39 he justifies the violent attack of the inhabitants of Lampsakus on Verres on the grounds that they suffered so much as to be simply unable to wait for ‘justice to take its course’ in the Roman law courts;40 he recounts an incident of tragic complexion, designed to show that an offended deity (p. 182 ) already paid Verres back for the plunder of her sanctuary by means of a violent storm; he naturally turns the judges into arbiters of justice (passim); and he combines legal and cosmic justice in suggesting that the cosmic variant articulates itself through Rome's legal procedure—if, that is, the judges condemn Verres.41 In the case of Verres, then, Cicero construes a grand synergy between legal and extra‐legal enactments of justice and portrays the defendant as being the recipient of four different sources of punishment: human nature, suitably construed; society, through self‐help and stigmatization; the law courts, by means of a verdict of guilty and legal punishment; and the gods, who strike Verres with madness.
In an ideal situation, then, the four aspects kick in together: crime produces self‐recrimination, up to and including outright insanity, a process that can be reinforced by literal or metaphorical avenging spirits; society responds with stigmatization; and the law courts seal the deal by turning the criminal into a convict (or forcing him into exile).42 In the Verrines, the extra‐legal forms of punishment are obviously of secondary import to Cicero's legal case. But in the 50s bc Cicero faced the situation that he was the victim of outrageous injustice, his expulsion from Rome, for which he blamed the consuls of 58, namely Piso and Gabinius. The procedural way to pursue his grievance and seek revenge would have been to drag Piso into court. But Cicero did not have the means at his disposal to pursue this course of action; and thus he took refuge in rhetoric, devising a form of punishment that could be enforced outside Rome's legal institutions: the in Pisonem, delivered in the senate in 55.43
Much of the speech is a fairly predictable mixture of self‐praise and abuse. And most scholars have indeed chosen to concentrate (often exclusively) on its, admittedly prominent, satiric and bitterly comic elements.44 The in Pisonem, however, is much more ambitious and sophisticated than is generally realized. Contrary to appearance, there is a logical rigour to Cicero's obloquy, well embedded, of course, within an entertaining smorgasbord of insults. On inspection, a full‐blown ‘philosophy of punishment’ can be extrapolated from the abusive fireworks. It underpins the entire speech and endows the invective with a powerful coherence. For Cicero aims for double payback, on both the invective and philosophical level: apart from hitting below the belt and acting out verbally the atavistic desire for vindictive (p. 183 ) satisfaction through the utter humiliation of the enemy, he also offers something more cerebral than rhetorical mud: the speech owes much to an intricate network of philosophical tenets that add theoretical scope and depth to the vigorous tenacity of his abusive bluster.
Stripped of rhetorical amplification and put into chronological order, the sequence of transgression and its consequences that Cicero alleges runs as follows: (i) a crime (in this case Piso's and Gabinius' responsibility for Cicero's exile) automatically results in the intervention of the gods and a conscience stricken with remorse; (ii) this implies mental derangement, which is tantamount to internal punishment; (iii) individuals in the thralls of furor and insania further suffer a loss of social awareness; (iv) this in turn is an inevitable prelude to additional offensive deeds that will have the criminal incur the hatred of all morally upright members of a human community (external punishment). Cicero seems to imply that a sequence of this sort happens as an inevitable ‘chain‐reaction’, even though, for rhetorical reasons, he does not proceed to outline the different steps in strict chronological order: he first elaborates on the end result of crime, namely social ostracism, before bringing into focus a crucial, preliminary stage: mental anguish leading to madness. But by inverting the presentation of cause and effect, he enhances the evidentia of his discourse—the workings of the human mind are not accessible to empirical inspection. In all, the assertion of mental torment, the documentation of societal stigma, and the presupposition of divine retribution all act as substitutes for an actual condemnation of Piso in a court of law, a ‘venting of spleen’ that advertises the release onto an unsuspecting universe of a judicial system where villains do get their desert, and no “nearly” about it'.45
All of these steps are of course familiar from Cicero's earlier orations, not least the Verrines. But in contrast to his successful prosecution, where the ultimate punishment (and victory) consisted in the verdict of guilty handed down by the jury, the in Pisonem does not operate within the context of legal proceedings and institutions. The speech itself must generate the frame in which justice can work itself out. Cicero, in his rhetoric, faces the challenge of accusing Piso of the crime, proving that he is guilty as charged, and executing the requisite punishment (or at least plausibly asserting its existence)—all in one. He sets up his agenda in the very first sentences of the speech, by means of a contrast between his own attitude towards Piso's return to Rome and the one he imputes to his senatorial colleagues (Pis. fr. i and ii):46 (p. 184 )
Pro di immortales! qui hic inluxit dies, mihi quidem, patres conscripti, peroptatus, ut hoc portentum huius loci, monstrum urbis, prodigium civitatis viderem!
[By the immortal gods! What a day is this that has dawned, senators! One greatly desired by me at least, in that I set eyes on this portent of the place here, this monster of the city, this prodigy of the state!]
Equidem nihil malui: vos fortasse consumptum istum cruciatu aut demersum fluctibus audire maletis.
[I at least wanted nothing more: you perhaps will prefer to hear that this man has been killed on the cross or drowned at sea.]
Cicero attributes to the senate the same profound hatred of Piso that he feels himself; but he stresses that his own repugnance comes with a special twist. Whereas he concedes in § 44 that he would not have mourned his enemy's demise, here he derives a peculiar sense of black satisfaction from the fact that Piso has been spared the horrors of physical dismemberment: for him, Piso's safe return to the city is an ardent prayer answered (peroptatus), a sincere desire come to fruition (equidem nihil malui). This seems to violate all intuition. It is as blatantly bizarre as is his rejoicing at the return of a monstrum whose very presence in the city he regards as a dire sign from the gods (portentum, prodigium) that requires expiatory action.
Owing to the fragmentary state of the oration's beginning, it is impossible to tell whether Cicero explained the rationale behind his baffling start straightaway. Arguably, he did not. A riddle demanding resolution would have been an effective opening legerdemain, awakening the curiosity of his audience who would have kept their ears pricked for further illumination. This illumination begins to take shape from § 41 onwards, where he details why and how ‘true’ punishment of his adversaries presupposes their safe return to Rome and, paradoxically, consists neither of physical dismemberment nor a conviction in a court of law, but rather a mixture of social stigma, mental distress, and divine retribution. Cicero initiates the proceedings against Piso by focusing on the social aspect; when Piso and Gabinius returned from their shameful stints as proconsuls of the Roman people, they were branded (so he asserts) with ‘an ineradicable stigma of the foulest disgrace’ (41). Would he have been as delighted, he asks rhetorically, if he had seen the two suffer the physical mutilation of crucifixion as he is now by the mutilation of their reputation?47 The (unstated) answer is clearly ‘no’. At this stage of the speech this puzzles just as much as the keynote: why should the laceratio of Piso's and Gabinius' fama be more gratifying to Cicero than their (p. 185 ) physical torture? On all accounts, crucifixion, which combines excruciating pain with profound humiliation and was a punitive measure reserved for slaves, would seem to be a punishment far worse than the loss of reputation. But, so Cicero posits, a laceratio corporis, while perhaps satisfying, should not be considered punishment in itself: nullum est supplicium putandum, quo adfici casu aliquo etiam boni viri fortesque possunt (42: ‘One must not consider punishment that by which good and courageous men may be afflicted through some chance occurrence)’.48 Here we have the answer to the paradoxical approach: had Piso died in a shipwreck or on the cross, his death would simply have been due to bad luck—a cause that only furnishes cheap (since fortuitous) gratification. Cicero disowns the vicissitudes of fortune in assessing punishment; as far as he is concerned, in a world full of risks and uncertainties, it is both silly and vulgar to deem mere accidents a genuine source of personal vindication.
Yet, far from letting Piso off the hook at all, Cicero here prepares the grounds for the ensuing ‘philosophical tribunal’.49 It is set up by the puzzling announcement that crucifixion and drowning at sea are not punishments at all.50 For his denial that various forms of corporeal mutilation are not to be considered punishment is designed to give pause for thought; any member in Cicero's audience would have deemed crucifixion a supplicium, in fact, the supplicium: a particularly ghastly form of the death penalty, normally reserved for persons without dignitas.51 In other words, Cicero's definition of what supplicium is not blatantly ignores what the term meant in everyday language. His notion that good men are immune to punishment runs counter to (Roman) common sense. The point of view that Cicero here advocates is a philosophical one to boot.52 And it also raises a rather urgent question. If not even the most extreme forms of physical torture are to be considered punishment, what exactly is punishment? Cicero himself voices the need for further enquiry (42): quae est igitur poena, quod supplicium? (‘what, then, is a penalty, what punishment?’). The answer he offers is two‐pronged (Pis. 43):
(p. 186 ) Id mea sententia, quod accidere nemini potest nisi nocenti, suscepta fraus, impedita et oppressa mens, bonorum odium, nota inusta senatus, amissio dignitatis.
[In my opinion, (punishment is something) which can happen to no one unless he be guilty and (consists of) the burden of wrongdoing, a mind troubled and oppressed (by a guilty conscience), hatred of the morally upright, being branded with the censorship of the senate, and a loss of social standing.]
Cicero here first reinforces his categorical distinction between those who can be punished (the guilty) and those who cannot (the innocent). Then he identifies the two aspects of genuine punishment: mental (a tortured conscience) and social (the hatred of the morally upright, the censorship of the senate, and the loss of standing in the community). After enhancing the plausibility of his axiom that the innocent are immune from punishment, Cicero revives his opening imagery and expands on its implications in the quotation from the Thyestes:53 the lines he quotes rehearse the theme of divine retribution that Cicero introduces in his keynote and conveniently combine the two modes of death that he evokes at the outset, namely crucifixion and drowning at sea.54 His brief exegesis of the quotation retrospectively explicates his initial announcement that he deemed Piso's safe return a source of gratification; the desire to see one's enemies suffer corporal punishment is now explicitly qualified as vulgar—the outlook of a poet aiming to entertain the masses, rather than the viewpoint of a true sapiens. The quotation, then, allows Cicero to reiterate the distinction in the psychology of hatred that is in operation throughout the speech. It plays off the common wish of seeing one's enemy suffer a morbid death and physical disintegration against more sophisticated (and philosophically grounded) notions of social disgrace and divine retribution. Further, the cursing of Atreus by his brother Thyestes deftly foregrounds the supernatural scope of the invective just before Cicero specifies the precise place of the gods within his philosophy of punishment. There is something savage and archaic about Thyestes' execration, which draws its power and horror from deeply ingrained anxieties about physical mutilation and lack of burial.55 By citing the tragic verses yet rejecting their premise, Cicero simultaneously satisfies and sublimates into his own vision the primal (and common) instinct for revenge that they articulate. A negative dialectic thus integrates the tragic quotation into his discourse: he rejects the (p. 187 ) outlook of the tragic playwright and his character, whom he exposes as subscribing to a vulgar misconception of (divine) punishment; but he ingeniously assimilates those elements of tragic theology and anthropology that fit into the thematic economy of his speech.56
Still, Cicero has yet to move beyond a vague definition of punishment, having so far focused primarily on what punishment is not. With increased urgency, he insists once more on his basic question: ‘What then is a penalty? what a punishment? what is stoning? what crucifixion?’57 This time his answer is specific: punishment, he declares, is the fact that two generals had control of armies in provinces of the Roman people, yet one of them, Piso, infrenatum conscientia scelerum et fraudum suarum (‘curbed by the consciousness of his villainies and crimes’), did not dare to send any dispatch to Rome (since he had accomplished nothing), and the other, Gabinius, who did, had his requests for a triumph rejected by the senate; the ensuing stigma of public infamy is profound and comprehensive: they have incurred the hatred of the senate, the knights, the other orders—indeed, the entire civic community (44–5). After expatiating on the social aspects of what he considers genuine punishment, Cicero revisits its manifestation in the mind, which he had already adumbrated with the formulations suscepta fraus and impedita et oppressa mens (43) and conscientia scelerum et fraudum suarum (44): it was Piso's guilty conscience, he argues, that made him disband his army in Macedonia. To illustrate the mental concept Cicero turns to the metaphysical. Moving on from his point that Piso's and Gabinius' universal infamy is a prayer answered, he alleges that the cause of Piso's disgrace—the loss of an entire army—was a greater calamity than he had hoped for (Pis. 46):
mihi enim numquam veniret in mentem furorem et insaniam optare vobis in quam incidistis. Atqui fuit optandum. Me tamen fugerat deorum immortalium has esse in impios et consceleratos poenas certissimas. Nolite enim ita putare, patres conscripti, ut in scaena videtis, homines consceleratos impulsu deorum terreri furialibus taedis ardentibus. Sua quemque fraus, suum facinus, suum scelus, sua audacia de sanitate ac mente deturbat; hae sunt impiorum furiae, hae flammae, hae faces.
[For it would never have occurred to me to pray for the madness and insanity into which you have fallen. And yet I should have prayed for it. But I had forgotten that these are inescapable penalties from the immortal gods for the impious and the wicked. For you must not believe, senators, that, as you see it on the stage, wicked men are hounded by the blazing torches of the Furies at the prompting of the gods. Each person's own crime, own misdeed, own villainy, own effrontery unhinges him (p. 188 ) from sanity and soundness of mind. These are the Furies of the impious, these their flames, these their firebrands.]
Cicero's theology of punishment here gains its final form. In earlier sections he alleged that Piso's and Gabinius' loss of reputation occurred in answer to his prayers; now he avers that no such prayers would have been necessary, since the gods would have intervened of their own accord. As implacable guardians of justice, they invariably punish miscreants with madness. The phrase poenas certissimas carries a strong connotation of inevitability. Cicero posits an automatic mechanism as part of the cosmic order whereby a theodicy of sorts guarantees that criminals suffer from internal anguish for their crimes. For Cicero, the divine enactment of justice is not so much a matter of imprecations, but of knowledge, more specifically, knowledge of human nature and its relation to the divine.58 He again presupposes a genetic disposition to torturous self‐incrimination that sets in as soon as human beings violate the moral codes and normative expectations of their society. The existence of such a disposition Cicero deems indispensable for communal life: anthropology and theology work in unison to ensure a functioning commonwealth. The suffering of miscreants is, as it were, doubly predetermined and therefore over‐determined: by divine arrangement and human natura.
As in the pro Sexto Roscio and elsewhere, Cicero draws on tragic figures and imagery to expound the onset of self‐incrimination, which sets the cycle of punishment in motion. His reference to the Furies, the avenging fiends of Greek myth, as well as their paraphernalia, namely flames and torches, not only gestures back to the beginning of the speech where he ascribes Piso's mad stab at invective to the intervention of torch‐swinging Furies;59 it also serves to explicate visually the disturbed psychology of transgressing individuals. Yet as in other places, Cicero takes care to adjust the world of the theatre to reality; one should not imagine (he reminds us) that the enactment of divine punishment plays itself out in real life as it does on the tragic stage. In a rhetorical ploy familiar from the Attic orators and his own previous writings, Cicero rejects the literal ascent of the Furies from Hell.60 While the gods have some sort of (p. 189 ) punitive effect on the mind of the perpetrator, they remain physically aloof. A subtle shift in emphasis has occurred since his mention of the Furies at the outset of the speech, where they were quite ‘real’; here Cicero puts the emphasis squarely on the self‐laceration of the criminal, as he substitutes the internal workings of the human mind for demonic figures and emphasizes subjective conscience over objective divine forces. As Nisbet put it: ‘True punishment lies in the consciousness of guilt.’61 In what follows, Cicero continues to expound on the differences between tragedy and Roman reality (Pis. 46–7):
Ego te non vaecordem, non furiosum, non mente captum, non tragico illo Oreste aut Athamante dementiorem putem, qui sis ausus primum facere…deinde…confiteri te provinciam Macedoniam, in quam tantum exercitum transportasses, sine ullo milite reliquisse? Mitto de amissa maxima parte exercitus (sit hoc infelicitatis tuae): dimittendi vero exercitus quam potes adferre causam? Quam potestatem habuisti, quam legem, quod senatus consultum, quod ius, quod exemplum? Quid est aliud furere? Non cognoscere homines? non cognoscere leges, non senatum, non civitatem. Cruentare corpus suum? maior haec est vitae famae salutis suae volneratio.
[Should I not consider you mentally deranged, raving mad, demented, more insane in fact than the Orestes or the Athamas of tragedy, you, who dared first to do it…and then…to admit it that you had left the province of Macedonia, into which you had led such a large army, without a single soldier? I pass over the loss of the greater part of the army; may this be due to your misfortune. But what justification can you adduce for disbanding your army? What authority did you have for this, what law, what decree of the senate, what right, what precedent? What is madness if not this? Is it failure to recognize other human beings? No, it is failure to recognize the laws, the senate, the state. Is it to wound one's own body? This wounding of one's own life, reputation, and security is more serious.]
The end of this passage presents some textual difficulties.62 But if we follow Nisbet's text and punctuation (with a question mark after Non cognoscere homines), a coherent agenda emerges. Cicero here redefines Greece's tragic anthropology in distinctly Roman terms. In Greek tragedy, the hallmark of insanity is the inability to recognize other human beings. In Roman invective, it is the failure to acknowledge the specific groups and institutions that comprise the res publica.63 Piso, Cicero infers, is even more insane than the tragic lunatics familiar from the stage. A little later he pronounces the same verdict on Gabinius: he, too, is found to ‘pay the direst forms of penalty to his country and the immortal gods: madness and insanity’ (50). Being non (p. 190 ) compos mentis and being stigmatized by infamia and ignominia are, it turns out, two stages of an inevitable sequence.
The crowning piece of the argument occurs in the peroration (95–9). Addressing the question as to why he does not seek redress from Piso in a court of law, Cicero systematically retraces the various elements that make up his philosophy of punishment. Unlike most, he does not consider the punitive measures routinely imposed by human courts to be true punishments; any brave, wise, and morally upright man is immune to punishment; and crime is its own punishment, owing to the workings of conscientia (95). There is, then, Cicero continues, no need to initiate legal proceedings against Piso. A virtual court of law (iudicium), to which Cicero has privileged access, has long since judged the case. The verdict: ‘Guilty’. The punishment: a deranged mind tortured by self‐incrimination and social stigma at the hands of every other constituent of Rome's civic community. Piso is suspended in social limbo and punished with a mind that lacerates itself in self‐loathing and disgust (98). Revisiting the theme of capital punishment, Cicero claims again that he had never thirsted for Piso's blood. For the death penalty (extremum supplicium) handed out by a court of law may hit both the just and the unjust alike. In effect, Cicero here rejects Roman law and the public courts: they do not guarantee justice. Hence he wished to see Piso reduced to a fearful and contemptible wretch, despised by all, and stripped of his auctoritas, his social standing, his liberty, his voice, as the only form of punishment that ‘really’ matters. This he did: vidi (99). The circular structure is thus perfect, as Cicero here returns to his opening pronouncement that he was delighted to see Piso back in Rome. The in Pisonem, apart from being a stirring piece of invective, is also a desperate attempt to reassert justice in the universe—and it obfuscates the fact that he was politically too impotent to initiate actual legal proceedings to enact his revenge.
A harangue in the senate, of course, is not a genre that lends itself easily to explicit and sustained philosophizing. Still, with the socio‐political order of Rome having failed him, Cicero turns to an alternate reality: theoria. In contrast to the messiness of human courts, which he regards as too checkered and, as often as not, wrong, his philosophical certainties are simple, straightforward, and timeless. The ideas he gleans from both tragedy and philosophy give the impression of transcending the culturally specific. Built into his argument is thus a claim to universal validity. It rests on the unequivocal distinction between boni and mali, the assertion of cosmic justice through the internal workings of the human mind, and hence a fully reliable (since ‘natural’) causality of crime and retribution.
(p. 191 ) 3. Positive Versus Natural Law
The interface of law and nature, and the question of whether such a thing as natural law existed, were well‐established topics in Greek intellectual discourse and formed part of rhetorical handbooks and treatises.64 The Rhetorica ad Herennium lists as the elements of which ius consists natura, lex, consuetudo, iudicatum, aequum et bonum, and pactum, before specifying that natural law concerns the realm of kinship ties and family loyalties (cognatio and pietas, such as shown by parents to their offspring and vice versa).65 In the de Inventione Cicero operates on a significantly higher level of conceptual sophistication, distinguishing three sources or components of ius—natura, consuetudo, lex—which he imagines to have evolved one out of the other in a chronological sequence.66 He further defines the ius naturae as an inborn force that regulates ethics, including social and religious obligations and a commitment to truth; but notes subsequently that considerations of the laws of nature (naturae iura) are by and large irrelevant to the ius civile. Although they may be brought in for rhetorical reasons (such as amplificatio), they do not impact on statutes and the legal process and are, at any rate, rather far removed from the comprehension of the masses (a vulgari intellegentia remotiora sunt).67 In this early treatise, then, Cicero endorsed two tenets: that culture more generally (consuetudo) and, specifically, legislative activity shore up and sustain our inborn understanding of, and commitment to, ius and iustitia; but that the ius naturale (or iura naturae) are primarily of theoretical interest, since their impact upon actual legal procedure or argumentation is minimal. Still, his conception of the primacy of natural law, at least in chronological terms, as the ultimate source of our legal arrangements, already prefigures his investment in the concept in his later philosophical writings.
In the light of these tenets, Cicero's own experiences with Rome's legal order must have produced permanent friction between the ideal of law as rooted in nature and serving justice and the fallibility of legal procedures, the abuse or corruption of the law courts, and the perceived injustices of actual pieces of legislation. In the de Republica, which assigns to justice foundational importance for a commonwealth, and, above all, the de Legibus, he tackled this challenge head‐on, finding his inspiration not, primarily, in the ius civile or the twelve tables, but drawing it ex intima philosophia (Leg. 1.17). In this (p. 192 ) treatise Cicero, while freely, indeed programmatically, granting the existence of tyrannical laws and unreliable law courts, tries to reground Rome's legal code nomothetically in a philosophical anthropology centred in the nexus between our inborn understanding of right and wrong and natural (divine, cosmic) law, which forms an entirely autonomous and universally applicable benchmark over and at times against the laws and legal practices of specific cultures.68 The text conjures a grandiose unity of the human, the socio‐political, and the metaphysical level, grounded in the natural‐law philosophy of the Stoics in particular, but also Plato's theory of justice; and it also offers a philosophical meditation on what had happened at Rome (and to Cicero) during the 50s bc.69 His commitment to (Stoic) natural law as the source of the ius civile and justice continues to be a prominent tenet also in his treatises from the 40s.70 And in the Philippics, he endorsed the priority of justice and natural law, even over and against positive legislation.
As we have seen, Cicero considered the retrospective ratification of Sulla's laws an outrage to justice. Yet towards the end of his career, he experienced an unpleasant déjà vu: the same problem that followed in the wake of Sulla presented itself after the assassination of Caesar, namely how to handle the legal and constitutional arrangements of the despot, both those already in force and those found in his archive, in more or less developed draft versions.71 Cicero disapproved of the wholesale ratification of Caesar's acta, which the senate decided to confirm only under duress; and he was outraged by the faked Caesarian documents that Mark Antony put into circulation in the following months.72 In response to such ‘illegal legal activities’ on the part of his adversaries, he appealed to Roman procedure, material (ethical) considerations, and, ultimately, a higher, or the highest, law. But the way Cicero argues his case is symptomatic of the discomfort he still felt in stepping outside the protocols of formal legality in public oratory.
In the fifth Philippic, for instance, Cicero objects to two laws by Antony, the lex Antonia agraria and the lex (Antonia?) de provinciis consularibus, first on formal and then on material grounds. He begins his attack by identifying a twofold formal violation: Antony passed his laws without following proper procedure specified in previous legislation; this entails ‘legislative suicide’, with laws cancelling out each other.73 Then he moves on to the supernatural (p. 193 ) plane: as augur, Cicero submits, Antony ought to know that laws passed in the face of divine objection (manifesting itself in various meteorological phenomena) are invalid; and the day he passed his laws, well nigh the entire universe was in turmoil.74 Cicero's conclusion is twofold: first, all of Antony's laws were carried out by force and in violation of the auspices, and are hence not binding on the people (Phil. 5.10); and second, if any of the laws that Antony carried were good ones, they still ought to be passed anew with due regard to procedure to make them binding, ‘for even if he had passed good things in a formally incorrect fashion and by means of violence, they ought not to be considered laws’ (Phil. 5.10: quamvis enim res bonas vitiose per vimque tulerit, tamen eae leges non sunt habendae).
If Cicero here argues the traditional point that even good laws require the validation of correct procedure, several paragraphs later, when commenting on Antony's' lex iudicaria on the extension of eligibility to the juries, he endorses the view that bad laws are to be deemed invalid even if correct procedure was observed (Phil. 5.16):
hanc ergo et reliquas eius modi leges, etiam si sine vi salvis auspiciis essent rogatae, censerem tamen abrogandas; nunc vero cur abrogandas censeam quas iudico non rogatas?
[Hence I would be of the opinion that this and other laws of this kind, even if they had been passed without the use of violence and under the correct observation of the auspices, still ought to be rescinded; but now why should I be of the opinion that laws ought to be rescinded, which I consider not to have been passed?]
The formulation is cautious, as Cicero limits this scenario to an unreal counterfactual: even if Antony's law had been passed in formally correct fashion (sine vi salvis auspiciis), he thinks it ought to be rescinded; but since it has not been (or so Cicero avers), there is no need for such an intervention. As far as he is concerned, an abrogatio on the basis of content is unnecessary, given that all of Antony's laws were passed per vim et contra auspicia and are hence by definition invalid on formal grounds, whatever their content. If in the former passage he subordinated material to formal aspects, he now, at least theoretically, subordinates formal to material aspects: a law that has been passed with impeccable attention to procedure is still not a law if it violates the interests of the res publica. A potential gap opens up between constitutional processes and realities on the one hand (p. 194 ) and, on the other, an abstract understanding of the commonwealth, which acquires a notional existence over and above its enacted customs and procedures. The position Cicero here endorses is therefore much more radical than that of other senators who attributed some legal standing to Antony's legislation and wanted to have it formally rescinded; he, in contrast, considers the laws of his adversaries simply null and void from the point of view of both formal proceedings and raison d'état.
This approach famously comes to a head in the eleventh Philippic, where Cicero spells out his investment in justice as a higher principle, and not the outcome of procedure or an epiphenomenon of the balance of power. Cassius, in invading Syria, the province assigned by the lex Iulia to Dolabella, was in open violation of positive law; still, Cicero argued that the breach was justified since Cassius acted in accordance with the law of nature (Phil. 11.28):
Quid? C. Cassius pari magnitudine animi et consili praeditus nonne eo ex Italia consilio profectus est, ut prohiberet Syria Dolabellam? qua lege, quo iure? eo, quod Iuppiter ipse sanxit, ut omnia, quae rei publicae salutaria essent, legitima et iusta haberentur. est enim lex nihil aliud nisi recta et a numine deorum tracta ratio imperans honesta, prohibens contraria. huic igitur legi paruit Cassius, cum est in Syriam profectus, alienam provinciam, si homines legibus scriptis uterentur, his vero oppressis suam lege naturae.
[What? C. Cassius, endowed equally with greatness of spirit and insight, did he not depart from Italy with the determination to keep Dolabella out of Syria? On account of what law, of what right? According to the one which Jupiter himself ratified, i.e. that everything counts as legitimate and just what brings salvation to the state. For law is nothing else but correct understanding derived from the will of the gods, which orders the good and forbids the opposite. Hence Cassius obeyed this law when he entered Syria, the province of someone else if men used written laws, but, since these have been oppressed, his according to the law of nature.]
Like few other passages in the speeches, Cicero here wears his philosophy on his sleeve.75 Cicero, as K. M. Girardet has stressed, appeals to the ‘higher law’ (p. 195 ) that embodies the interests of the state only in circumstances when (he thought that) the force of positive law has been suspended (cf. his vero oppressis);76 but, as U. Gotter has emphasized, such suspension was nothing more than Cicero's personal opinion. In essence, Cicero appealed to natural‐law philosophy to justify a disregard for legal and constitutional facts.77
(4) For some justified criticisms see Kirov (2005) 13 n. 13, who, however, does not distinguish sharply enough between the discursive manipulation of legal knowledge along the lines posited by Frier and the existence of law as an autonomous sphere of practice: the former does not necessarily presuppose the latter.
(6) See e.g. Vander Waerdt (1994), esp. 4859; Crook (1994); cf. Wieacker (1988), who, on the one hand, concedes the ‘Fehlen naturrechtlicher Bekenntnisse in der republikanischen Rechtsliteratur’ (‘The absence of commitments to natural law in the written law of the republic’), yet, on the other, feels entitled to speak of a ‘nachhaltigen Veränderung des ethischen Bewußtseins und der Werterfahrung vieler republikanischen Juristen durch die griechische Philosophie’ (‘the lasting change of ethical awareness and of the experience of values that Greek philosophy caused in many republican jurists’) (643–4). Cicero comments on the organization and codification of legal material with the help of Greek dialectics at Brut. 152–3.
(11) Tacitus, Ann. 3.27.3.
(16) Quintilian wistfully remarked that this kind of appeal presupposed a republican form of government and was no longer applicable under the principate (Inst. 6.1.35).
(21) Cicero also recognized other factors (such as invidia, the theme that dominates, for instance, the exordium of the pro Cluentio, where it occurs fourteen times in the first nine paragraphs) that could result in a miscarriage of justice or the distortion of the truth, but they are located at another, (all too) human level.
(23) For Cicero as tyrant, see e.g. Att. 1.16.10 = 16 SB, Sul. 22–3, Dom. 75, 94; Gelzer (1939) 891–2, Vanderbroeck (1987), Edwards (1993) 155–7, and Wiseman (2002) 291, who offers a pithy account of the ideological polarization caused by Cicero.
(25) E.g. Ver. 2.3.82: Ille, de quo legem populus Romanus iusserat ut ipsius voluntas ei posset esse pro lege, tamen in hoc uno genere veterum religione legum reprehenditur: tu, qui omnibus legibus implicatus tenebare, libidinem tibi tuam pro lege esse voluisti? (‘Sulla, about whom the Roman people had decreed the law that his will could serve him as law, nevertheless attracts criticism in this one case out of regard for the ancient laws; and you, who are fully bound by all laws, wanted your licence to serve you as law?’)
(26) Cf. Agr. 2.32.
(27) Quinct. 47 (Naevius' stream of consciousness as envisaged by Cicero): potentes, diserti, nobiles omnes advocandi sunt; adhibenda vis est veritati; 72: aderunt autem homines nobilissimi ac potentissimi.
(28) As Bannon (2000) 72 has pointed out, the pro Quinctio is organized ‘around an apparently simple opposition between correct legal procedure and incorrect use of law. Through recurrent imagery of weapons and bodily harm, he characterizes Naevius' use of law as illegal and immoral self‐help.’
(34) Dom. 42: qui etiam de me ipso, cum tua rogatione funere elatam rem publicam esse dicerent, tamen id funus, etsi miserum atque acerbum fuisset, iure indictum esse dicebant.
(36) Some supporters of Cicero argued that, for that reason, Cicero should simply return to the city without a formal recall, thereby signalling that Clodius' piece of legislation never had the status of law.
(37) For example, Cicero seems to have argued in one of his consular speeches, the De proscriptorum liberis, that the restitution of legal rights and privileges to the sons of those who were proscribed by Sulla would be just but not feasible since it would have threatened the foundations of the res publica: Quintilian, Inst. 11.1.85; Crawford (1994) 201–7.
(40) Ver. 2.1.81.
(41) Ver. 2.1.71.
(43) Marshall (1975); the remainder of this section is based and elaborates on Gildenhard (2007c) 155–67; for a recent interpretation of the speech similar to the one offered here, see J. Harries (2006) 197–201.
(47) Pis. 42: an ego, si te et Gabinium cruci suffixos viderem, maiore adficerer laetitia ex corporis vestri laceratione, quam adficior ex famae?
(50) Cf. above, 183–4, on frs. i and ii.
(52) Tellingly, Cicero makes Piso's own philosophical pretensions an explicit target of scorn and ridicule elsewhere in the speech; apart from the ‘absurdities’ of Piso's Epicureanism and his friendship with Philodemus—DeLacy (1951), Griffin (2001)—see esp. §§ 56–63, where Cicero mocks Piso's denial that he was ever interested in celebrating a triumph: ‘When Piso uttered this denial, senators, you have heard the voice of a philosopher!’
(54) See esp. fr. ii, cited above, and fr. v: quem enim iste in scopulum non incidit, quod in telum non inruit? (‘On which rock did this man not crash, upon which spear did he not impale himself?’)
(55) At Tusc. 1.106 Cicero quotes the same passage in an argument against the widespread belief that lack of burial has dire consequences for the spirit of the deceased.
(57) Pis. 44: quae est igitur poena, quod supplicium, quae saxa, quae cruces?
(58) This point comes to the fore in the somewhat bizarre formulation atqui fuit optandum: if a criminal's descent into madness is all but preordained, one may justifiably ask, why should Cicero have prayed for it? But the following me tamen fugerat…(‘but I had forgotten’…) seems to suggest that Cicero, by asking beforehand for the punishment the gods would eventually exact, did not so much want to make a difference with his prayer as to signal his superior understanding of divine conduct.
(59) See fr. iv: Perturbatio istum mentis et quaedam scelerum offusa caligo et ardentes Furiarum faces excitaverunt (‘A disturbance of the mind and a certain choking darkness arising from his crimes and the burning torches of the Furies have stirred him on.’)
(63) Cf. Har. 39, discussed below 339–41.
(65) Rhet. Her. 2.19; cf. 3.4.
(66) Inv. 2.65; he imagines a similar process with regard to iustitia at 2.160.
(67) Inv. 2.65–7.
(70) See e.g. Off. 3.71–2.
(73) Phil. 5.8: ubi lex Caecilia et Didia, ubi promulgatio trinum nundinum, ubi poena recenti lege Iunia et Licinia? possuntne hae leges esse ratae sine interitu legum reliquarum? (‘What about the Caecilian and Didian Law? What about the promulgation on three market‐days? What about the penalty under the recent Junian and Licinian Law? Can these laws of his be valid without the dissolution of all the others?’)
(74) Phil. 5.8: Quam legem igitur se augur dicit tulisse non modo tonante Iove, sed prope caelesti clamore prohibente, hanc dubitabit contra auspicia latam confiteri? (‘He, an augur, says he carried the law despite Jupiter's thundering, indeed despite heavenly clamour issuing a veto (as it were); will he waver to admit that it was carried against the auspices?’)
(75) A look at some comparative passages from his philosophica shows that he in effect cites Stoic idiom almost verbatim: Rep. 3.27 P = 3.33 Z: est quidem vera lex recta ratio, naturae congruens, diffusa in omnes, constans, sempiterna, quae vocet ad officium iubendo, vetando a fraude deterreat; quae tamen neque probos frustra iubet aut vetat, nec improbos iubendo aut vetando movet (‘But true law is right reason in harmony with nature, present in everyone, self‐consistent, eternal, which calls to duty by commanding, and by prohibiting deters from crime; yet while it does not issue commands or prohibitions in vain to those who are ethically sound, on the wicked it has no impact by commanding or prohibiting.’); Leg. 1.18: Igitur doctissimis viris proficisci placuit a lege, haud scio an recte, si modo, ut idem definiunt, lex est ratio summa insita in natura, quae iubet ea quae facienda sunt, prohibetque contraria (‘The most learned men, then, have decided to take law as their point of departure, I am inclined to think rightly so, if indeed, as they define it, law is the highest reason, inherent in nature, which commands what ought to be done and prohibits the opposite’) (cf. 1.33); and N.D. 1.36: Zeno autem, ut iam ad vestros, Balbe, veniam, naturalem legem divinam esse censet, eamque vim obtinere recta imperantem prohibentemque contraria (‘But Zeno, to move on to your people, Balbus, believes that a natural law exists that is divine and has the power to command what is right and to prohibit the opposite’).