Key ideas: (C. 52 BC) “Law is highest reason, implanted in nature, which orders those things that ought to be done and prohibits the opposite…. Right is uniform; human fellowship has been bound by it, and one law has established it; that law is correct reason in commanding and prohibiting. He who is ignorant of it is unjust, whether it has been written somewhere or nowhere…. And if right has not been confirmed by nature, they may be eliminated.” (Cicero)
Characters in the dialogue (in order of their initial speech): Titus Pomponius Atticus (A), Quintus Tullius Cicero (Q), Marcus Tullius Cicero (M)
Q: I gather, brother, that you think some rules [ lex ] should be observed in a history, others in a poem.
M: By all means, Quintus, because in the one [everything is] measured by truth, in the other most things are measured by delight. But there are countless fables in both Herodotus, the father of history, and Theopompus. …
A: That is fi ne with us, and, if it pleases you, this way to the Liris along its bank and through the shade. But now I beseech [you] to begin to explain what you feel about civil law. …
M: And indeed correctly. For recognize that in no subject of argument are more honorable things brought into the open: what nature has granted to a human being, how many of the best things the human mind encompasses, what service we have been born for and brought into light to perform and accomplish, what is the connection among human beings, and what natural fellowship there is among them. When these things have been explained, the source of laws and right can be discovered.
A: So you don’t think that the discipline of law [ ius ] should be drawn from the praetor’s edict, as many do now, or from the Twelve Tables, as earlier men did, but from within the profoundest philosophy?
M: In fact, Pomponius, in this conversation we are not seeking how to safeguard interests in law [ ius ] or how to respond to each consultation. […] But in this debate we must embrace the entire cause of universal right and laws so that what we call civil law [ ius ] may be confined to a certain small, narrow place.
We must explain the nature of law [ ius ], and this must be traced from human nature. We must consider laws by which cities ought to be ruled. Then we must treat the laws [ ius ] and orders of peoples that have been composed and written, in which what are called the civil laws [ ius ] of our people will not be hidden.
M: Therefore, it has pleased highly educated men to commence with law—probably correctly, provided that, as the same men define it, law is highest reason, implanted in nature, which orders those things that ought to be done and prohibits the opposite.
The same reason is law when it has been strengthened and fully developed in the human mind. And so they think that law is prudence, the effect of which is to order persons to act correctly and to forbid them to transgress.
They also think that this thing has been called [from] the Greek name for “granting to each his own,” whereas I think it comes from our word for “choosing.” As they put the effect of fairness into law, we put the effect of choice into it. Nevertheless, each one is appropriate to law.
But if it is thus correctly said, as indeed it mostly and usually seems to me, the beginning of right should be drawn from law. For this is a force of nature; this is the mind and reason of the prudent man; this is the rule of right and wrong.
But since our entire speech is for the people’s business, sometimes it will be necessary to speak popularly and to call that a law which, when written, consecrates what it wants by either ordering [or forbidding], as the crowd calls it. In fact let us take the beginning of establishing right from the highest law, which was born before any law was written for generations in common or before a city was established at all. …
Then do you want us to trace the birth of right itself from its source?
M: … I will trace the root of right from nature, with which as our leader we should pursue the entire debate.
M: Then, Pomponius, do you grant me this …, that all nature is ruled by the force, nature, reason, power, mind, majesty—or whatever other word there is by which I may signify more plainly what I want—of the immortal gods? Now if you do not approve this, I must begin my case from there before anything else.
A: Of course I grant it, if you expect it…
M: I will not make you wait longer. It is relevant at this point: This animal—foreseeing, sagacious, versatile, sharp, mindful, filled with reason and judgment—that we call a human being has been begotten by the supreme god in a certain splendid condition. It alone, of all kinds and natures of animate beings, has a share in reason and refl ection, in which all the others have no part.
Therefore, since nothing is better than reason, and since it [is] in both human being and god, the primary fellowship of human being with god involves reason; and among those who have reason in common, correct reason is also in common. Since that is law, we should also consider human beings to be united with gods by law.
Furthermore, among those who have a sharing in law, there is a sharing in right. ….
But of all the things involved in the debate of educated men, surely nothing is preferable to the plain understanding that we have been born for justice and that right has been established not by opinion but by nature. This will already be evident if you have examined the fellowship and connection of human beings among themselves. …
M: What comes next, then, is that we have been made by nature to participate in right, one with another, and to share it among all persons. And I want that to be understood in this entire debate when I say that [right] is by nature. …
Those who have been given reason by nature have also been given correct reason, and thus law, which is correct reason in ordering and forbidding.
If law has been given, so has right. And reason has been given to all persons. Therefore, right has been given to all persons.
And Socrates correctly used to curse the person who first separated advantage from right, for he used to complain that this was the source of all disasters….
A: … Since we have admitted—correctly so, I think—that these things are true, how could we separate laws and rights from nature?
M: … But truly the most foolish thing is to think that everything is just that has been approved in the institutions or laws of peoples. And if those laws are from tyrants?
If the Thirty at Athens had wanted to impose laws, or if all the Athenians delighted in tyrannous laws, surely those laws should not be held to be just for that reason?
No more, I suppose, than the one that our interim ruler provided, that the dictator could kill whatever citizens he wanted with impunity, even without a hearing.
Right is uniform; human fellowship has been bound by it, and one law has established it; that law is correct reason in commanding and prohibiting. He who is ignorant of it is unjust, whether it has been written somewhere or nowhere.
… So it happens that there is no justice at all if not by nature
Now if justice is compliance with the written laws and institutions of peoples, and if (as the same men say) everything ought to be measured by advantage, he who thinks that it will be enjoyable for himself will neglect and break through those laws if he can. So it happens that there is no justice at all if not by nature, and what is established for the sake of advantage is undermined by that advantage.
And if right has not been confirmed by nature, they may be eliminated ….
But if rights were established by peoples’ orders, if by leading men’s decrees, if by judges’ verdicts, there would be a right to rob, a right to commit adultery, a right to substitute false wills if those things were approved by the votes or resolutions of a multitude.
But if there is such power in the opinions and orders of the foolish that the nature of things is changed by their votes, why don’t they establish that bad and ruinous things should be held to be good and salutary things? Or if law can make right out of wrong, can’t the same law make good out of bad? But we can divide good law from bad by no other standard than that of nature.
Not only right and wrong are distinguished by nature, but also in general all honorable and disgraceful things. Nature makes common conceptions for us and starts forming them in our minds so that honorable things are based on virtue, disgraceful things on vices. To think that these things have been based on opinion, not on nature, is for a madman.
M: Then before we approach individual laws, let us see again the force and nature of law so that, since we must judge everything according to it, we do not occasionally slide into error in the conversation and ignore the force of its reason, by which we must mark out laws.
Q: Certainly, by Hercules, and that is the correct way of teaching.
M: Therefore, I see that this has been the opinion of very wise men:
Law was not thought out by human intellects; it is not some resolution of peoples, but something eternal that rules the whole universe through the wisdom of commanding and prohibiting. So, they said, the chief and ultimate law is the mind of god compelling or forbidding all things by reason. As a result of that, the law that the gods gave to the human race has been correctly praised: it is the reason and mind of a wise being, suitable for ordering and deterring.
Q: Several times already you have touched on that point….
In Book 1, Cicero defined law as:
“Law is highest reason, implanted in nature, which orders those things that ought to be done and prohibits the opposite.”…