For cicero why must law be founded on justice

Published biannually, Classical Antiquity explores interdisciplinary research and discussion of major issues throughout the field of classics, including Greek and Roman literature, history, archaeology, art, philosophy and philology — Bronze Age through Late Antiquity.

From extant written materials to newly unearthed art-objects, Classical Antiquity's coverage of the Greco-Roman ancient world is truly expansive. One of the largest, most distinguished, and innovative of the university presses today, its collection of print and online journals spans topics in the humanities and social sciences, with concentrations in sociology, musicology, history, religion, cultural and area studies, ornithology, law, and literature.

In addition to publishing its own journals, the division also provides traditional and digital publishing services to many client scholarly societies and associations. Classical Antiquity. Cite this Item. Read and download Log in through your school or library. Alternate access options. Get Started Already have an account? How does it work? The political and cultural ideas underlying Roman law emerge more clearly into view in the last century or so of the Republican period, especially through the extensive writings of the lawyer and philosopher Cicero BCE , who tried, but failed, to defend the Republic against the rise of dictators like Julius Caesar.

Through the nineteenth century Cicero was considered to be a model of oratory and a leading thinker on legal and political matters.

Thus they have been accustomed to say that law is the primal and ultimate mind of god, whose reason directs all things either by compulsion or restraint On The Laws , 1. Cicero then turns from these general observations to the conduct of war.

Henceforth, he does not distinguish assault from property crime—and, of course, war mingles the two subcategories of injustice. He insists that negotiated settlement is preferable to war, since the former involves behaving humanly, whereas the latter belongs to beasts. War should be a last resort when negotiations have failed, and it is justified only when one has been grievously wronged.

It should be limited to what will make it possible to live in peace afterwards. After conflict has ended, the vanquished should be treated fairly and even received into citizenship in one's own nation when possible. During conflict, the foe is to be treated mercifully. Cicero would permit an army to surrender unharmed even after the battering ram has touched the walls, which is more lenient than traditional Roman practice. Promises made to the enemy must be kept. Cicero ends his discussion of justice by noting that the duties of justice are extended even to slaves.

In general, we may say that Ciceronian duties of justice involve an idea of respect for humanity, of treating a human being like an end rather than a means. In Book III Cicero returns to the duties of justice, elaborating on his claim that they are the basis for a transnational law of humanity.

Since the useful often conflicts with the honorable, he writes, we need a rule. The rule is to never use violence or theft against any other human for our advantage. This rule gives rise to a universally binding law of nature. Cicero says that it is absurd for us to hold to this principle when our family or friends are concerned but to deny that it holds for all relations among citizens. But then it is equally absurd to hold to it for fellow citizens and deny it to foreigners. People who make such a distinction, he writes, "tear apart the common fellowship of the human kind.

National boundaries are morally irrelevant. Duties of justice are universal and impose strict obligations. Very different is Cicero's next group of duties: giving material aid to others. He says that these are basic to human nature, but there are many constraints. Our gifts must not do harm, we must not impoverish ourselves, and we have to make sure the gift suits the recipient. Throughout, there is a role for judgment. If other things are equal, we should help the most needy.

Cicero says that human fellowship is best served if the people to whom one has the closest ties get the most benefit.

He enumerates the various degrees of association. In no case does his argument for the closeness of the connection rest on biology or heredity. One relevant feature is shared human practice: Cicero praises friendship as a powerful source of duties of aid. But his highest praise is reserved for shared political institutions.

Cicero proposes a flexible account that recognizes many criteria as pertinent to duties of aid—gratitude, need and dependency, political and friendly association—but that also preserves flexible judgment in adjudicating conflicting claims. What is clear, however, is that people outside our own nation always lose. Why is it acceptable to Cicero that this asymmetry holds? He thinks it terrible to contemplate a human assaulting or stealing from another. Yet if the same people are starving and my nation has a surplus, it seems to him just fine.

There are many things that explain these attitudes, including Cicero's controversial account of property rights. But there is another consideration. In the De Officiis, Cicero's views lie closer to orthodox Stoicism than in most of his other works. The Stoic thesis that we should rise above the passions is inseparable from their view that external things, the gifts of fortune, are irrelevant to the well-lived life.

The wise person scorns all such things. He does not get upset at the loss of a fortune, or health, or reputation and honor, because all that is trivial. This Cicero endorses: the courageous person is "great and lofty in soul, despising human things. It is time to ask some questions. We need to understand whether Cicero's distinction of duties is coherent, even to one who accepts the Stoic doctrine.

Three arguments suggest that it is not. The first objection is that if we are really thoroughgoing Stoics, we should not care about just treatment any more than about material aid. All these things are externals. To a person who is truly free within, slavery, torture, and rape are no worse than poverty. The Stoics were quite explicit about this.

The wise person is free, though he may be a slave. The sage on the rack is happy. The person who sees things aright will not care about contempt and abuse. But if this is so, one rationale for the distinction between the two types of duties disappears.

If humanity is owed a certain sort of treatment from the world, it would seem that it is owed good material treatment as well as respect and noncruelty. If the world's treatment does not matter to humanity, then it would seem that torture and rape are no more damaging than poverty.

It is incoherent to salve one's conscience on the duties of material aid by thinking that these things are unnecessary for true flourishing while insisting so strictly on the absolute inviolability of duties of justice, which pertain to other external things human beings need. I believe that much modern thought about duties suffers from this same incoherence.

We believe that there are certain things that are so bad, so deforming of humanity, that we must go to great lengths to prevent them. Thus, with Cicero and Seneca, we hold that torture is an insult to humanity, and we go further, rejecting slavery. But denying people material aid seems to us not in the same category.

We do not feel that we are torturing or raping people when we deny them the things that they need to live. Yet poverty, of course, does make a difference.

The human being is not a block or a rock, but a body of flesh and blood that is made each day by its living conditions. Hope, desire, expectation, will—all these things are shaped by material surroundings.

Even if we convince ourselves that humanity imposes duties of justice but none of material aid, we still have a problem: justice costs money. Any political and legal order that protects people against torture, rape, and cruelty needs material support.

There need to be lawyers, courts, police, and other administrative officers, presumably supported by taxes. Americans often miss this point, thinking that money spent on welfare and relief of poverty is money spent but that the police, the courts, the fire department—everything that is required to maintain a system of contract, property rights, and personal safety—is free.

That is clearly false. In nations where the state is impoverished, legal rights suffer: freedom of travel and public safety are jeopardized, and personal security is not protected by effective law enforcement.

Such problems internal to each nation already put the Ciceronian project in trouble. The problem is magnified when we think about what an effective system of international law requires. Maintaining a system of global justice involves massive expenses. In that sense the United States is at best muddled and at worst hypocritical when it sounds off about human rights and yet opposes attempts to create expensive institutions—or even to pay United Nations dues.

Caring about basic human rights means spending money, not just talking fine talk. We should conclude that if people say they are for the duties of justice and yet are unwilling to redistribute money across national borders, they are actually halfhearted about the duties of justice.

The duties of justice look different from the duties of material aid because they do not involve doing anything, or not very much. They mainly involve refraining from aggressive war, torture, rape, etc. Duties of material aid, by contrast, look like they require us to do a great deal.

That intuitive idea is central in contemporary thinking when we suppose that duties of material aid would impose a great burden on our nation, while duties of justice would not. But someone may say, If we decide not to spend this money, violations may occur, but the violators won't be us. We can consistently draw a line—if not where the old line between justice and material aid went, at least between acting and refraining.