Normativity of Law: Ancient & Contemporary Perspectives

Ancient Philosophy Today: DIALOGOI
Volume 4 Supplement 2022
The Normativity of Law: Ancient
and Contemporary Perspectives
Edited by Antony Hatzistavrou and
Veronica Rodriguez-Blanco
Edinburgh University Press
Contents
Supplement: The Normativity of Law: Ancient and
Contemporary Perspectives
Edited by Antony Hatzistavrou and Veronica Rodriguez-Blanco
Introduction
The Normativity of Law: Ancient and Contemporary
Perspectives
Antony Hatzistavrou and Veronica Rodriguez-Blanco
1
Articles
Law and the Metaethics of Discord
Katja Vogt
3
Plato on Legal Normativity
Chris Bobonich
24
Legal Authority and the Dead Hand of the Past. Dworkin’s Law’s
Empire and Plato’s Laws on Legal Normativity
Andrés Rosler
Aristotle and Modern Constitutionalism
George Duke
The Normativity of Law in Nature Revisited: Natural Law in
Late Hellenistic Thought
René Brouwer
Virtue and the Normativity of Law
Amalia Amaya
45
66
91
111
The Normativity of Law in Nature
Revisited: Natural Law in
Late Hellenistic Thought
René Brouwer
Utrecht University
Abstract
In this paper I revisit nature as a source of normativity for law in the
later Hellenistic period, that is beyond the opposition of law and nature
in the early classical period, Plato’s and Aristotle’s naturalism, or
the early Stoics’ conception of the common law. I will focus on the first
century BCE, when the expression ‘natural law’ gained prominence,
reconstructing its origins in the interaction between Hellenistic
philosophers and the Roman elite, including jurists. I argue that for
the jurists the Stoic doctrine of law in nature offered a theoretical
underpinning for their unique practice of dispute resolution, whereas
for the Stoics this Roman practice offered an unexpected opportunity to
instrumentalise their conception of law.
Keywords: fact, naturalistic fallacy, natural law, nomos, lex, ius, Roman
Stoics, Cicero
I Introduction
In modern jurisprudence positivism has become the dominant position
on the normativity of law: its normativity is man-made and is to
be found outside nature. Accordingly, positivists distinguish
between law and nature, invoking inter alia the naturalistic fallacy that
prescriptive norms cannot be derived from descriptive facts.1 However,
as I aim to show in this paper, already for historical reasons, here
Ancient Philosophy Today: DIALOGOI 4.Supplement (2022): 91–110
DOI: 10.3366/anph.2022.0080
© Edinburgh University Press
www.euppublishing.com/anph
92 Ancient Philosophy Today: DIALOGOI
with particular focus on the late Hellenistic period, neither the
distinction between norm and fact, nor the naturalistic fallacy can be
taken for granted.
The notion of fact, perhaps surprisingly, has its origins in English
law.2 With their conquest of England in 1066 the Norman kings,
French speaking and with a Scandinavian background, had to gain
control over their newly acquired realm, and one of the means to do
so was by offering an extra service to the English people for them
to have their disputes resolved with the help of the king’s travelling
judges. Already by accepting the judges’ service the English acknowledged the king’s power. Moreover, and relevant here, the judge asked
twelve innocent bystanders as representatives of the local population to
decide on what had actually occurred after having listened to the
accounts of both parties. In accepting this duty, these bystanders,
sworn-in (Latin: iurati; hence ‘jury’) that they would judge honestly,
once again accepted the king’s power. Thus, a division of labour
occurred, between on the one hand the judge deciding on ‘matters of
law’ and on the other hand the public, after having heard the parties,
deciding on ‘matters of fact’, from the Latin factum, ‘what had been
done’.3
The Norman model of dispute resolution was a success: it eventually
not only overtook the traditional English forms of dispute resolution,
it also influenced the study of nature. In his Advancement of Learning,
Francis Bacon, philosopher and Lord Chancellor, as such responsible
for the administration of justice in England, transferred the notion
of ‘fact’ – ‘as the lawyers speak’, Bacon adds – to the domain of the
study of nature.4 Thomas Hobbes followed suit and used ‘fact’ in
Human Nature, the first part of his Elements of Law. In chapter 4.8 Hobbes
gives the example of someone who has seen that ashes remain after fire:
on a subsequent occasion when seeing ashes he can reconstruct the
‘fact’ that there had been a fire.5 The word ended up in the Statutes of
the Royal Society,6 and with the success of the natural sciences the
notion gained currency also outside the English language: see for
example the German word Tatsache (a literal translation of the more
precise Latin expression res facti), which the Grimm brothers introduced
in the German language in the early 19th century.
The separation between law and fact allowed for the formulation
of the ‘modern invention’7 of the naturalistic fallacy, most famously
by David Hume: ‘In each system of morality […] the author makes
observations concerning human affairs; when of a sudden I’m surpriz’d
to find, that instead of the usual copulations of propositions, is, and is
Natural Law in Late Hellenistic Thought
93
not, I meet with no proposition that is not connected with an ought, or an
ought not.’8 From a theoretical point of view the fallacy is nowadays
anything but accepted. Hilary Putnam even spoke of the ‘collapse of the
fact/value dichotomy’.9 In epistemology this ‘naturalist turn’ was
already made by Quine in the 1950s;10 in the domain of human affairs
the interest in the normativity of nature has also been rekindled,11 with
Sen and Nussbaum’s capabilities approach or Leiter’s naturalised
jurisprudence as prime examples.12
In this paper I want to revisit the discussions among Greek and
Roman thinkers about nature as a source of normativity for law in
the last two centuries BC. This period can either be referred to as late
Hellenistic, as modern scholars in ancient philosophy nowadays
usually do, or as that of the late Roman Republic. In this period,
different from the classical period of Greek thought, when law was
primarily put in opposition to nature, and different from the early
Hellenistic period, when Epicureans and Stoics debated the role of
nature with regard to law, the expression ‘natural law’ is introduced and
came to be used by the Roman jurists, such that it has become a
standard term not only in philosophical discourse, but also in the study
of law and indeed in law itself. I will reconstruct the origins of this
expression in the interaction between the Hellenistic philosophers
and the Roman jurists. I will argue that different from the Epicureans’
separation of justice and laws and different from the early Stoics’
Cynically inspired conception of law, later Stoics offered a more
conservative conception of what since then has come to be referred to
as ‘natural law’, providing the Roman jurists with a theoretical
foundation of their practice. For the Stoic thinkers in Rome the practice
of these jurists offered unexpected alleys in how to instrumentalise their
conception of law.
The structure of this paper is simple enough. In the next session I
discuss how in the classical period of Greek thought law and nature
are put in opposition, whereas in the early Hellenistic period they
are connected, although in different ways (section II). In section III,
the core of the paper, the explicit use of the term ‘natural law’ in the
late Hellenistic period is set out and explained against the background
of the interaction between the Roman Stoics on the one hand and
the Roman jurists on the other. I end with some implications for the
modern debate about nature as a source of legal normativity, above
all in relation to the relevance of studying the history of the notion
of natural law in order to better grasp its scope and conception
(section IV).
94 Ancient Philosophy Today: DIALOGOI
II Law and Nature in Classical and Early
Hellenistic Thought
In early Greek thought ‘law’ (nomos) is understood as custom, often
considered to be of divine origin – perhaps most famously expressed
by Pindar, fr. 169: ‘Law is king of all things human and divine.’
However, in classical Greek thought the meaning of nomos shifts and
comes to be understood as statute, that is as man-made law.13 See for
example Pericles’ definition as reported by Xenophon, Conversations
1.2.42: ‘Statutes (nomoi) are all those things which the majority has
written down, having discussed them in an assembly, declaring what
ought and what ought not to be done.’14 These statutes could be
engraved in stone and were thus brought in a festive procession – in a
display of civic pride – to the market square.15 The Athenians’ focus
on statutes provoked reactions from thinkers like Thrasymachus
of Chalcedon and Callicles, who – as depicted by Plato – argued that
statutes are actually instruments of the weak, curbing those who are
stronger by nature.16
In response to this nomos-phusis-debate, as it has come to be known in
modern scholarship,17 in which nomos is understood as statute and is
hence opposed to nature, both Plato and Aristotle sought to overcome
this opposition, without however explicitly using the phrase natural
law or law of nature. In Plato’s later dialogues the Statesman and the
Laws statutes are an important topic. In the Statesman statutes are
introduced as a substitute for the statesman’s insight, comparable to
the doctor’s written prescriptions that the patient can follow when the
doctor is absent.18 Plato’s Laws (or Statutes, in a less ambiguous, but
unconventional rendering of the title of the dialogue) can be understood
as a search for the best statutes among the posited statutes of Sparta,
Athens and Crete. Plato’s Laws can hence be characterised as the first
comparative law treatise, ‘building upon the experience of real men in
real cities’.19 The statutes thus found are deemed to be in accordance
with nature, which is brought up almost in passing in Laws 4 720e11,20
but more elaborate later on, in book 10.21 It should be noted, however,
that in these discussions the phrase natural law or law of nature is not
used. In Plato’s writings the phrase ‘law of nature’ occurs only in a
single instance. In the Gorgias, at 483e, Callicles argues for the rule of the
stronger over the weaker, which he characterises as the ‘law of nature’
(nomos tēs phuseōs). In the context of the nomos-phusis debate, the phrase
has thus been aptly characterised as an ‘intentional paradox, almost a
contradiction in terms’.22
Natural Law in Late Hellenistic Thought
95
In Aristotle’s extant writings, at Nicomachean Ethics 5.7 1134b18–24,
nature is discussed in relation to what is just in the city. This justice can
either be ‘natural’ ( phusikos) or ‘statutory’ (nomikos). What is just by
nature ‘has the same force everywhere’, whereas what is just by statute
is based upon ‘lawgiving’ (nomothetein). At Rhetoric 1.10 1368b8, rather
than the phrase ‘just by nature’, the term ‘common law’ (koinos nomos) is
used, characterised as ‘unwritten, seemingly acknowledged by everyone’. At Rhetoric 1.13 1373b6 and 1.15 1375a30, this common law is said
to be ‘in accordance with nature’ (kata phusin). While seeking to connect
law and nature, Plato and Aristotle are thus both still reluctant in using
the phrase natural law.
In the early Hellenistic period the role of nature with regard to law
becomes an even more debated topic. The debate occurs between
Epicureans, early Stoics, as well as Academics. The followers of Aristotle
appear to have played a limited role, and will hence be left out here.23
Here again the phrase natural law still does not gain currency.
As sceptics, the Academics argued against the positions on the role
of nature with regard to law as developed by the Epicureans and
the Stoics. For Academic criticism of these dogmatists (and hence for
the debate among the Epicureans and the Stoics) a main source is the
beginning of book 3 of Cicero’s On the res publica, as reconstructed in the
modern editions with the help of the account of Lactantius’ Divine
Teaching Manual, at 5.14.3–5.24 There it is reported that in Rome in 155
BC Carneades of Cyrene, the head of the Academy and one of the three
Athenian ambassadors, gave a brilliant lecture praising a conception of
justice based on nature, destroying this conception in another lecture
the following day. In typically sceptical fashion Carneades thus
apparently aimed at suspension of judgement.25 In On the res publica
Cicero emulated Carneades, although with the different aim of finding
out which position is more probable. In the dialogue, Laelius, one of the
speakers, follows the Stoics in arguing in favour of justice based on
nature, whereas Philus (as the devil’s advocate) agrees to follow the
Epicureans in arguing in favour of justice as based on usefulness.
Different from Carneades, for Cicero the arguments are of different
weight: the arguments for the Stoic account are stronger than for the
Epicurean one, and so is Laelius’ conception considered to be more
probable.
Epicureans and Stoics developed rather different positions on the role
of nature with regard to its scope. According to Epicurus (341–271 BC)
and his followers, nature plays but a restricted role, whereas according
to the Stoics, nature and law are closely connected, in the sense that law
96 Ancient Philosophy Today: DIALOGOI
is one of the names given to the single active force that pervades nature.
Similar opposed positions were taken up by Epicureans and Stoics with
regard to both the highest end in life as well as the relation between
ethics and physics. With regard to the highest end, in the Epicurean
conception of the highest good as avoiding pain nature has only a
limited role, whereas in the Stoic conception of the highest good as
following nature nature is attributed an all-encompassing role, in that
only the sage lives the good life by actively participating in the reason
that orders the world.26 With regard to the discussion about how the
parts of wisdom relate to each other, Epicurus separates the study of
nature from the study of human affairs as much as possible, whereas for
the Stoics physics and ethics are fully integrated.27
With regard to the role of nature as a source for normativity, Epicurus
makes a distinction between justice and law. Justice in the restricted
sense of avoiding harm is based on nature. Epicurus pointed at the
earliest natural impulses of babies in their cradles, who would strive for
pleasure and avoid harm. Statutes are or should be the man-made
means to bring about justice in this restricted sense.28 In an ideal
community statutes would not be necessary; elsewhere they should
thus simply protect against harm. See Stobaeus 4.1.143 (Epicurus fr.
530 Usener): ‘Statutes (nomoi) do not exist to prevent the wise from
doing wrong, but only to protect them from being wronged.’ With
regard to statutes, but not with regard to justice, Epicurus can thus be
characterised as an anti-naturalist.29
For the Stoics, from Zeno of Citium (334–262 BC), the founder of their
school onwards, ‘law’ (nomos) was an important topic. All major early
Stoics wrote treatises on law, including Zeno,30 his pupil Sphaerus,31
and his subsequent successors as head of the school: Cleanthes,32
Chrysippus,33 and Diogenes of Babylon.34 As for the relation between
law and nature, the Stoics identified ‘law’ (nomos) with the single
rational force in nature that shapes the world.35 In the extant sources the
early Stoics usually speak simply of ‘law’, sometimes the adjective
‘common’ is added. In his Hymn to Zeus, l. 24 (SVF 1.537, LS 54I),
Cleanthes speaks in terms of traditional religion of Zeus’ ‘common
law’. The other attestations of the phrase ‘common law’ are extant for
Chrysippus,36 and much later for Marcus Aurelius, Meditations 4.4.37
Cicero’s account in On the Nature of the Gods 1.36 (SVF 1.162) on Zeno’s
conception of law is an exception. According to Cicero, Zeno would
have used the phrase ‘natural law’ (lex naturalis): ‘Zeno maintains that
the natural law is divine and that it has the power to order the right
things and to forbid the opposite things.’ As we shall see in the next
Natural Law in Late Hellenistic Thought
97
session, there are good reasons to assume that Cicero here attributes to
Zeno a phrase that was only developed later.
An important implication of the early Stoics’ conception of law as
rational force appears to be that it can only be imperfectly reflected in
general rules, let alone a system of rules.38 Following the Cynics,39
the early Stoics criticised all existing statutes and ‘constitutional
arrangements’ ( politeiai) in no uncertain terms. Zeno did so in his
Politeia; Chrysippus did so, too, as can be inferred from the reproach
that Diogenianus, an Epicurean or Peripatetic from the second century
AD, directs at him: ‘How can you say that all current statutes (nomoi)
and constitutional arrangements are wrong?’40
According to standard Stoic doctrine, human beings stand in a
special relationship vis-à-vis this rational force in nature. Reason
develops naturally in human beings, but they themselves need to
develop it further. According to the Stoics, the highest goal in life for a
human being is the perfection of reason such that he or she acquires a
virtuous disposition, and as such becomes an active part of this rational
force.41 This perfection is difficult to achieve, however: the Stoics
maintained that the perfect human being had not yet come into
existence – with the exception perhaps of Socrates.42 Rational human
beings not having achieved that virtuous and perfectly rational
disposition can have a true insight into their place in the order of
things, but lacking this solid disposition they will most of the time have
to live according to the order of the whole, like – as in the famous Stoic
image – the dog tied behind the cart, suffering by attempting to go
against it.43 To imperfect human beings, who strive to become perfect
but are not yet capable to perform ‘right actions’ (katorthomata) out of a
perfectly rational disposition, the early Stoics offered guidance in the
form of ‘intermediate’, not yet perfect, ‘appropriate actions’ (kathekonta),
which have a reasonable justification only and are thus only generally
speaking in accordance with nature. In the limited sources that have
survived the ages dire lists of examples of these intermediate
appropriate actions can be found: ‘honouring one’s parents, brothers
and country, and intercourse with friends’,44 ‘marrying, serving on
embassies, conversing, and the like’.45
III Law and Nature in Late Hellenistic Thought
In the second century BC thinking about law ceases to be the domain of
Hellenistic philosophers alone. The Roman conquest of Greece brings
98 Ancient Philosophy Today: DIALOGOI
about a fertile interaction between Hellenistic philosophers on the one
hand and Roman jurists on the other. The embassy of the Athenians in
Rome in 155 BC can be considered as a convenient starting point of this
interaction.46 The Athenians were represented by the heads of three
institutions of higher learning: next to the Academic Carneades of
Cyrene (which we already encountered in the previous section) also the
Peripatetic Critolaus of Phaselis and the Stoic Diogenes of Babylon took
part. This interaction would have profound consequences for both the
practice of law as well as of philosophy, both in method as well as in
substance.47 Among these Hellenistic philosophers, above all the Stoics
exerted influence on the Romans – and were in their turn influenced by
the Romans, like for example Panaetius of Rhodes, by distancing
themselves from the Cynic aspects of Stoicism, and thus by conforming
themselves to the conservative mentality of the Roman elite.48
At the beginning of the first century BC the term ‘natural law’ (ius
naturae) is securely attested for, which has thus been hailed as the start
of the Roman natural law tradition (which I will refer to as phase 1),49
even though the use of the phrase may not have immediately amounted
to a natural law theory, which appears to have been explicitly
developed (or put to use) around 50 BC (phase 2).50 In the first phase,
the phrase ‘natural law’ occurs twice in the extant sources, in the
Rhetoric to Herennius, of which the author cannot be properly
identified,51 and in Cicero’s On Invention,52 both written in the ‘80’s of
the first century.53 In his discussion of the six parts of ‘law’ (ius) the
author of the Rhetoric to Herennius uses the expression ius naturae, at
2.19: ‘Nature, statute (lex), custom, earlier judgements, equity, and
contract. To natural law (naturā ius) belong those things we observe out
of kinship or piety. On the basis of this law parents care for their
children and vice versa.’ As one out of six parts of law, natural law
is given only a limited scope here. In the second source, Cicero’s
On Invention, at 2.65, a more important place is assigned to it:
We must consider the sources of law (ius). The origin (initium) thereof appears
to be in nature. Certain principles either obvious or obscure to us have by
reason of advantage passed into custom; afterwards […] confirmed by
statute. The law of nature is implanted in us not by opinion, but by a kind of
innate force, including piety, kinship, gratitude, revenge, respect and truth.54
Some forty years later Cicero would repeat the important role of nature
with regard to law in one of his last theoretical works, also on rhetoric,
entitled Divisions of Oratory, at 129: ‘Law (ius) is primarily divided into
nature and statute (lex).’
Natural Law in Late Hellenistic Thought
99
How can the occurrence of the expression ‘natural law’ (ius naturae) in
these rhetorical treatises be explained? Here the unique Roman practice
of dispute resolution as developed in the late Republic is relevant.55
The main characteristics of this practice are, first, that disputes are
above all considered to be among citizens rather than involving the
public as a whole; second, that the decision-making process is elitist,
and third, that in difficult cases decisions are made with the help of a
specialist. The main product of this system of dispute resolution
becomes ‘(case) law’ (ius), to be distinguished from but integrated with
‘statute’ (lex).
As for the first characteristic, almost all disputes in Rome were
considered to be civil, that is among citizens themselves; the state
or – better (since ‘state’ is a term that is only used since the early
modern period) – the ‘public good’ (res publica) does not take an
interest in them. To give an idea of the broad scope of the civil law:
‘murder’ ( parricidium) and ‘theft’ ( furtum) are disputes dealt with as
falling within the scope of civil law. Examples of the few cases that fall
within the scope of public or criminal law are ‘high treason’ (maiestas)
and also ‘extortion’ (res repetundae) in name of the res publica (with the
Roman conquest of a large part of the Mediterranean world extortion
by provincial governors would become a serious problem). Whereas
public law was laid down in ‘statutes’ (leges) as decision made by or for
the people, in civil law statutes played but a minor role, with the
important exception of the statute of the XII Tables.
Second, the process of dispute resolution in civil matters was elitist, a
characteristic that would go back to the founder of the city, according to
for example Dionysius of Halicarnassus, Roman Antiquities 2.9.1:
After Romulus had distinguished those of superior rank (hoi kreittoi) from
their inferiors, he next established laws by which the duties of each were
prescribed. The patricians (eupatridai) were to be priests, magistrates and
judges, and were to assist him in the management of public affairs, devoting
themselves to the business of the city. (trans. Cary 1937–1950)
Whether already in place in the eighth century BC or not, at any rate in
the late Roman republic, if a dispute were to arise between Roman
citizens, a respectable nobleman would indeed be asked to decide it.
Third, in difficult cases, this nobleman would ask a specialist for
advice. The importance hereof for the development of law cannot
be overestimated: the resolution of disputes becomes a matter for
specialists.56 The specialist’s advice or ‘answer’ (responsum) would
usually be taken over by the judge, who could thus declare it to be law.
100 Ancient Philosophy Today: DIALOGOI
See the jurist and historian Pomponius (second century AD), whose
Handbook survived in the Digest, at 1.2.2.5:
After the enactment of these laws, there arose a necessity for debate about
the law, as it is the normal and natural outcome that problems of
interpretation should make it desirable [for the lay judge] to have guidance
from learned persons [in the form of a responsum]. (trans. MacCarmick 1998)
The decision has thus still to be taken by the judge. However, in difficult
cases he becomes advised by a specialist, usually members of noble
families who had specialised in legal expertise, such as the Mucii. The
process of making the ‘law’ (ius) explicit in case law – the standard
phrase among lawyers has hence become ‘law finding’ – is crucial in
the development of Roman law (and given its influence, also far
beyond). The development of the law that deals with disputes between
citizens thus mainly occurred on the basis of finding the best solution to
the dispute at hand. In the domain of private law statutes thus play a
secondary role only.57 It is in this context of law-finding that for the
Roman jurists nature provides the basis from which law could be
articulated, in the case at hand.
The difference between the Roman and Athenian practices of dispute
resolution cannot be stressed enough. In line with their constitutional
model of direct democracy the Athenians themselves decided not only
on future policies, but also on disputes that had occurred in the past.58
Disputes were thus, first, decided by the public, and, second, without
the help of specialists. With regard to the first aspect, different from
deciding on future cases, the Athenian citizens did not vote all together:
the judges or jurors (in the Athenian settings there is no difference) were
randomly selected with the help of special devices. One of these was
found by American archeologists on Athens’ market square, such that
its operation could be reconstructed;59 otherwise these ‘jury selection
machines’ (klērotēria) are mentioned in the Aristotelian Constitution of
Athens, at 63. With regard to the second aspect, that specialists were not
involved, parties had to present their positions themselves, without the
help of lawyers, whereas the Athenian judges as lay persons listened to
both sides and decided by majority vote. They were simply asked to
decide the dispute in accordance with their statutes. Hence no reasons
were given for the decision, with the effect that no tradition of case
law or of precedents was developed. Other than the Romans (or the
English), the Athenians did thus not develop a legal tradition, at least
not in the sense of a handing over a body of knowledge as to how to
decide a given case.60
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101
The practice of finding law is alien to most modern lawyers, especially
those trained in the civil law tradition, and to ancient philosophers, who
will rather be familiar with the Greeks’ (or Plato’s or Aristotle’s) interest
in statutes. The practice has not become obsolete, however: it lies at the
very beginning of the English legal tradition. The classic account can
be found in William Blackstone’s Commentaries on the Laws of England.
According to Blackstone, the ‘unwritten law’ (lex non scripta – an
oxymoron in classical Latin, as we will see below) or the common law
‘properly so called’ refers to the general customs of the English people,
which the king’s judges make explicit in their judgements:
But here a very natural, and very material, question arises: how are these
customs or maxims to be known, and by whom is their validity to be
determined? The answer is, by the judges in the several courts of justice.61
It should perhaps be added that the English practice of finding
the unwritten law was by no means an emulation of the earlier,
Roman practice. On the European continent the reception and study of
Roman law started around 1088 with the foundation of the university
of Bologna, when students started to read the Digest together; the
academic study of Roman law at the two English universities is
obviously of a later date. Once again the (earlier) Norman conquest of
1066 is the background against which the development of English
law – outside the realm of the universities – is best understood: the
judges of the king were deemed to find the law within the customs of
the people, which once again (next to accepting the king’s judges’
services and their participation in the decision making process)
contributed to the English accepting the power of a foreign king.62
To sum up, in the first half of the first century BC, the expression
‘natural law’ is introduced, which gives the Roman jurists a theoretical
term that underpins their practice of finding law. Around 50 BC, in a
further development, the use becomes theoretically embedded, or to
put it more precisely: in the second half of the first century there is
explicit evidence for this embeddedness.
Let me start by noting that around around 50 BC, further phrases
usually rendered as law of nature or natural law are put into use: foedus
naturae and lex naturalis (or lex naturae). The expression foedus naturae
(literally: ‘natural bond’) is used by the Roman Epicurean Lucretius
(mid-first century BC) in On the Nature of Things, at 5.310:
Again do you not see even stones being overpowered by time, tall towers
tumbling down and rocks tumbling away? do you not see the shrines and
statutes of the gods succumbing to the stress and strain of age, their sancity
102 Ancient Philosophy Today: DIALOGOI
being powerless to extend the limits of destiny or defy the laws of nature
(naturae foedera)? (trans. Smith 2001)
Laws of nature thus refer to nature’s regular operations. These include
the operations of human nature, notably that human beings avoid
pain.63 Lucretius distinguishes these laws from ‘statutes’ (leges), that
should allow human beings to live together without harming each other
(see On the Nature of Things 5.1144–51). In the early modern period,
when the study of nature became mathematised, Lucretius’ somewhat
hesitantly presented conception of law as regularity in nature would be
put to full use.64
In Cicero’s writings on philosophy not only the expression lex
naturalis, which we encountered already in Cicero’s account of Zeno’s
doctrine of law (see section II), but also lex naturae65 and lex in natura can
be found. In the beginning of Cicero’s dialogue On Laws (De legibus), at
1.17, Cicero himself, his brother and his good friend Atticus describe the
aim of their conversation as ‘explaining the nature of law’ (natura iuris
explicanda nobis est). They do so by taking the ‘origins of law’ ( principia
iuris) as its starting point. According to ‘highly learned men’ (doctissimi
viri), this starting point is ‘law’ (lex), which is defined in the following
way, at 1.18: ‘Law (lex) is the highest reason (ratio summa) rooted in
nature (insita in natura), which commands things that must be done and
prohibits the opposite. It is this same reason, when it is confirmed and
perfected in human beings.’ ‘Highly learned men’ is presumably a
reference to the Stoics or to the Academic Antiochus of Ascalon, who
had discarded scepticism and often followed the Roman Stoics. In On
the res republica 3.27 Powell (= 3.33 Ziegler) Cicero also offers the
following definition: ‘True law (vera lex) is right reason (recta ratio)
consonant with nature, spread to all. It is constant and eternal; it
summons to appropriate action by ordering; it deters from crime by
prohibiting’ (trans. Zetzel 2017: 72, modified). In the continuation of the
conversation in On Laws, at 1.19, Cicero himself explains that ‘law’ (lex)
in this definition is his translation of the Greek nomos. He justifies the
translation by pointing at a similar etymology of the Greek and Latin
words, but otherwise points out that in Latin the ordinary meaning of
lex refers to the written version only: ‘We must sometimes speak in
ordinary terms, and call that a law (as the general public calls it) what
prescribes in writing what it wants by ordering or forbidding.’ In both
On Laws 1.18 as well as On the res publica 3.27 Powell (3.33 Ziegler)
Cicero uses ‘law’ (lex) in its generic sense of ius rather than in its its
typically Roman sense of statute.66 Also lex naturalis in Cicero’s account
Natural Law in Late Hellenistic Thought
103
of Zeno’s doctrine of law in On the Nature of the Gods should thus be read
in this overall, Stoic or at least Stoicised sense.
After having set out this Stoicised conception of law in the first book
of On Laws, Cicero continues in the next two books describing how
Rome’s public statutes are in line with this all-pervading law.67 In book
2 he does so with with regard to the statutes on religion; in book 3 he
does so with regard to magistrates (even referring to the interest
Diogenes of Babylon had in the topic, at 1.12). It should be noted that
this use of the conception of law is different from that of the early Stoics.
As we have seen, the early Stoic conception of law was explicitly
formulated as an alternative to existing statutes, whereas Cicero uses it
in order to make clear that Rome’s public statutes are in accordance
with this conception of law. It is in line though with the anti-Cynic,
conservative approach which the Stoics, like Panaetius of Rhodes (see
above n. 48), had adopted.
It should also be noted that in On Laws Cicero uses natural law with
regard to public statutes rather than private law. For someone like
Cicero pursuing a career in politics – or serving the public good – this
focus on public statutes is understandable enough. However, even he
was interested in civil law, as can be inferred from his treatise entitled
On Arranging the Civil Law into a Science, in which he might have dealt
with the relation between law and nature, too. Unfortunately, we cannot
know for sure: the treatise is lost; only two small passages have come
down to us.68 For the Roman jurists, as we have seen, law was above all
private law: they dealt with disputes in which the commonwealth as
such usually took no interest, and where it was left to the jurists to find
the law in the disputes that arose between citizens. It is here then that
the Stoic conception of natural law provided a theoretical justification of
their practice.69 As Aldo Schiavone put it in a felicitous phrase: in their
practice of dispute resolution of finding law the Roman jurists laid bare
the ‘metaphysics of social relations’.70 The articulation of ius out of its
empirical embeddedness and its subsequent systematisation in the form
of textbooks (which the jurists also undertook under the influence of the
Roman Stoics71) would eventually lead to the legal codes as the main
source of law in contemporary continental Europe.
Whereas for the jurists the Stoic doctrine of natural law offered a
theoretical underpinning for their unique practice of dispute resolution,
for the Stoics this practice must have offered an unexpected opportunity
to instrumentalise their conception of law. Stoic philosophers like
Diogenes of Babylon and his followers, otherwise accustomed to think
about law in terms of statutes, as was standard in Athens or elsewhere
104 Ancient Philosophy Today: DIALOGOI
in the Greek world, were suddenly confronted with this Roman practice
and could start thinking about law as ius: law can apparently be made
explicit in the circumstances of the case, and as such be found in nature.
The Roman jurists thus showed the Stoics how their somewhat dry list
of examples of types of intermediate appropriate actions as preserved
by Diogenes Laertius and Stobaeus (see above section III, n. 44 and 45)
could be developed further.
Thus far, I have offered a developmental reconstruction of how Stoic
thinkers and Roman jurists may have inspired each other, according to
which the jurists started to use the term first and thereafter used the
underlying Stoic theory. From a single piece of evidence it can perhaps
even be inferred that the theory had already been put to use earlier,
during the embassy of 155 BC or shortly thereafter. Worried about the
influence the school heads could exert over the Roman public, Cato the
Elder gave the ambassadors a hostile reception, trying to make them
leave Rome sooner rather than later.72 Otherwise, Cato himself was
clearly interested in Greek philosophical and rhetorical thought.73
According to Aulus Gellius, Attic Nights 6.3.45, in his Speech on behalf of
the Rhodians, Cato distinguished between things forbidden by ‘natural
law’ (ius naturae) on the one hand and by ‘statute’ (lex) on the other.
However, it is possible that just as Cicero had ascribed the term natural
law to Zeno, Gellius applied the term ‘natural law’ retrospectively with
regard to Cato, using a phrase that had only come into use in the first
century BC.
IV Conclusion and Outlook
In this paper I hope to have shown how legal practice has influenced
theory – as with the introduction of the notion of fact in the study of
nature – as well as how those interested in thinking about law should
take the practice of dispute resolution into account – as with the
introduction of the notion of natural law in the late Hellenistic period in
the interaction between Stoic philosophers and Roman jurists.
With regard to the notion of natural law, Daston is surely right that
different conceptions of law in nature have since been developed.
She speaks of ‘a mille-feuille of meanings’74 and of ‘natural orders
aplenty’75. However, by going back to the origins of the very notion
‘natural law’ in the late Hellenistic period a better insight can be gained
from how this notion was re-applied to earlier, different conceptions of
law. So was Aristotle’s conception of the common law re-interpreted in
Natural Law in Late Hellenistic Thought
105
terms of natural law, most influentially in the 13th century by Thomas
Aquinas,76 but also in the 20th century by Sen and Nussbaum.77 In the
Epicurean tradition of thinking about law, with its narrow conception of
the relation between law and nature, natural law has also become a
standard term, put to use by Thomas Hobbes in his Leviathan78or as ‘the
minimum content of natural law’ in H. L. A. Hart’s Concept of Law.79 Of
course, this cannot be the place to deal with these developments – and
clearly different meanings of natural law – at any length; they should
rather be left to other occasions.
Acknowledgements
I would like to thank the editors for the invitation and the organisation of such an exemplary
conference in which the papers for this volume – sent out in advance – could be thoroughly
discussed among the participants. Special thanks go out to Antony Hatzistavrou, Alex Long
and Katja Maria Vogt for their careful and constructive written comments.
Notes
1. Moore 1993 [1903]; cf. Sinclair 2019.
2. For recent discussion on the origins of the different notion of fact in Roman law
see Ando and Sullivan 2020, especially the papers by Thénard and Thevelin.
3. Shapiro 2000, ch. 1, whose account, unfortunately, starts only in the
16th century.
4. Bacon 1825 [1605]: 42, cf. Daston 1994: 46; Shapiro 1994; Daston and Park 1998:
203 (in the context of their discussion of ‘strange’ facts); Daston 2002: 47; Daston
2008.
5. See also his Human Nature, ch. 6.4, where Hobbes speaks of ‘experience of fact’.
6. See for example Wootton 2015: 288.
7. Daston 2014.
8. Hume 1978 [1738]: 469.
9. Putnam 2002.
10. Quine 1953 [1951]; for a helpful overview of this return to nature see Kitcher
1992.
11. Putnam 2002.
12. Sen 1984; Nussbaum 2011; Leiter 2007.
13. See Ostwald 1969, part 2: ‘Nomos becomes ‘statute’.’
14. For other evidence see Ostwald 1969: 50–2.
15. Hölkeskamp 2000.
16. Plato, Republic 483b; for a helpful discussion see Barney 2017.
17. See Heinimann 1945; cf. Bonazzi 2020 (an update of his otherwise richer 2010).
18. Statesman 295b.
19. Stalley 1976: 90.
20. Long 2021.
21. See e.g. Bobonich, infra.
22. Striker 1996 [1987]: 212.
23. Brouwer 2021b: 30–2, for sources and further discussion.
106 Ancient Philosophy Today: DIALOGOI
24. On the res publica 3.21a Ziegler; test. ad On the res publica 3.8 Powell.
25. Höffe 2017: 84; Schofield 2021: 125ff.
26. In the ancient sources this debate comes alive in Cicero, On Ends; for discussion
see for example Holmes 2014.
27. Diogenes Laertius 7.39–41 (LS 26A); cf. Brouwer 2014, ch. 1. For a recent volume
on the topic see Coope and Sattler 2021; the Hellenistic period is unfortunately
not covered.
28. Armstrong 1997; Alberti 1995; Schofield 2000.
29. See O’Keefe 2021. G.E. Moore would thus criticise Epicurus for his restricted
naturalism, in the same manner as he actually criticised J.S. Mill, see Sinclair
2019: 7.
30. On Law, see the catalogue of his books preserved by Diogenes Laertius, at 7.4.
31. On Law, see the catalogue in Diogenes Laertius 7.187.
32. On Laws, see the catalogue in Diogenes Laertius 7.175; the plural
presumably implies that is a polemical work against Epicurus, just like his
On Pleasure.
33. On Law, see Plutarch, On the Contradictions of the Stoics 11 1037f (SVF 3.175, LS
53R) and Marcian, Manual 1 ap. Digest 1.3.2 (SVF 3.314)
34. On Laws, see Athenaeus 12 526c (SVF 3 Diogenes 53).
35. Vander Waerdt 1989; Brouwer 2008, 2011, 2015, 2021a; Boeri 2013; Wildberger
2018; Vogt 2021.
36. Presumably from the first book of Chrysippus’ On Ends, for which Diogenes
Laertius 7.88 (SVF 3.4, LS 63C) can be consulted.
37. Thom 2005: 86–7.
38. See e.g. Striker 1996 [1987]; Mitsis 1999.
39. Brouwer 2021a.
40. Eusebius of Caesarea, Preparation for the Gospel 6.8.14 (SVF 3.324).
41. Brouwer 2014, ch. 2.
42. Brouwer 2014: 92–135, 163–6.
43. Hippolytus of Rome (c. 200 AD), Refutation of All Heresies 1.21 Diels (SVF 2.975;
LS 62A).
44. Diogenes Laertius 7.108 (SVF 3.493; LS 59C).
45. Stobaeus 2.86.3-4 (SVF 3.494; LS 59B).
46. For doubts about the historicity of the embassy see Powell 2013.
47. Brouwer 2021b, where the topic of natural law has been deliberately left out.
48. Cicero, On Appropriate Actions 1.128 and 1.148 (fr. 73 Alesse).
49. Schiavone 2017: 286 (= Schiavone 2012: 295).
50. Ferrary 2007: 87–8.
51. On its authorship see Calboli 2020: 19–37. The treatise was transmitted among
Cicero’s writings and upon its rediscovery thus at first ascribed to him.
52. Ducos 1984: 243; Achard 1989 ad loc.; Ferrary 2007: 87–8; Schiavone 2017:
255–68; Calboli 2020: 552.
53. For the date of the Rhetoric to Herennius see Calboli 2020, 8–12; for the date of On
Invention see Cicero, On the Orator 1.5, ‘written when I was still a boy or
adolescent’.
54. Further examples are in On Invention 2.34: iura naturae; On Invention 2.161:
natura ius est.
55. Brouwer 2021b: 22–7. The standard modern textbooks on Roman law, such as
Du Plessis 2020 or Kaser, Knütel, and Lohsse 2021, usually focus on the classical
period of Roman law in the early imperial period.
56. Watson 1995: 472; Glenn 2014: 136.
57. Mantovani 2018 [2012]. Only after the Republic had ceased to exist, statutes
would become more important with the emperor as lawgiver, and even more so
Natural Law in Late Hellenistic Thought
107
when with Constantine the Great the Christian religion with its conception of
the divine lawgiver started to dominate. These two developments would
culminate in the Corpus iuris civilis, the Byzantine collection of Roman law
containing a textbook, a collection of responsa, as well as older and new statutes,
which was given statutory status by emperor Justinian. The study of this
collection would become the starting point of the continental civil law tradition.
58. See for example Aristotle, Rhetoric 1.3 1358a32–4.
59. Todd 1993: 85–7.
60. The application of Aristotle’s virtue ethics to professional judges (see for
example Amaya’s paper, infra) is thus a modern exercise that would not have
been possible in 4th century Athens.
61. Blackstone 2015 [1765]: 52.
62. Brouwer 2017: 42–3.
63. Asmis 2008b.
64. Long 2006 [1997]; Wilson 2008. For a different interpretation of foedus as
‘treatise’ see Asmis 2008b.
65. Cicero, On Appropriate Actions 3.69: hoc quamquam video propter depravationem
consuetudinis neque more turpe haberi neque aut lege sanciri aut iure civili, tamen
naturae lege sanctum est.
66. Girardet 1983: 56.
67. Asmis 2008a against Girardet 1983: 140–1, who had maintained that the
statutes are expressions of natural law. Schofield 2021: 118 n. 46, also disagrees
with Girardet, placing Cicero’s On Laws in the wider context of the superiority
of Rome’s constitutional arrangements (125).
68. Garbarino 1984: 93–4.
69. See Gaius (2nd century AD), Manual 1.1; Ulpian (3rd century AD), Manual ap.
Digest 1.1.3; Justinian (6th century AD), Manual 1.1. Cf. Brouwer 2015.
70. Schiavone 2017: 196 (= Schiavone 2012: 202); cf. Humfress 2021: 262–3.
71. Brouwer 2021b: 37–51.
72. See Plutarch, Life of Cato the Elder 22.6–7.
73. See Plutarch, Life of Cato the Elder 2.5.
74. Daston 2014: 582.
75. Daston 2019: 68.
76. Aquinas, Summa theologiae Ia IIae 94.
77. See above n. 12.
78. Hobbes 1991 [1651], ch. 13–4; cf. Paganini 2020.
79. Hart 2012 [1961]: 193–200.
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