Philosophical Influence on Roman Jurisprudence?
The Case of Stoicism and Natural Law*
by PAUL A . VANDER WAERDT, S a n F r a n c i s c o ,
CA
Contents
I. Introduction
4851
II. Stoicism and Roman Jurisprudence of the Late Republic
4856
III. Cicero's Plans for the Reformation of Roman Jurisprudence
4866
IV. Gaius on Ius Naturale,
4879
Ius Gentium
and Ratio
Naturalis
V. Some Test Cases in Jurisprudence of the Principate
4887
VI. Conclusion
4893
Bibliography
4895
I.
Introduction
The hypothesis that Stoic philosophy decisively influenced the development of Roman jurisprudence has proven to be one of the most enduring
legacies of X l X t h century Quellenkritik. Thanks to the bulky and influential
work of MORITZ VOIGT1, it has become a widely accepted commonplace that
the doctrines of ius naturale, ius gentium and ratio naturalis held by Roman
* I began work on this subject during the Lent and Easter terms of 1988, while I was a
visitor at Christ's College, Cambridge. I would like to thank the Woodrow Wilson
Foundation, whose grant of a Charlotte Newcombe Fellowship made my stay in Cambridge possible, and DAVID JOHNSTON, Fellow at Christ's, whose expert advice and
written comments on earlier versions of this work have been invaluable. For their
suggestions on the penultimate version of this article, I would like to thank JULIA ANNAS,
J E R Z Y L I N D E R S K I , D A R R Y L PHILLIPS, P E T E R STEIN a n d ALAN W A T S O N ; a n d f o r t h e l e i s u r e
to complete it, the National Endowment for the Humanities, which awarded me a
Fellowship for University Teachers in 1990 — 91.
1
Das jus naturale, aequum et bonum, und jus gentium der Romer, 4 vols., Leipzig, 1856 —
76, esp. vol. I, pp. 267 - 344.
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PAUL A. VANDER WAERDT
jurists of the classical period (i. e., from the mid-first century B. C. to the midthird century A . D . ) were derived from or substantively influenced by the
Stoics. It has also come to be widely assumed that during the Principate
reforms in the law of persons took place under Stoic influence which tended
to ameliorate the position of those in an inferior status 2 . T h e influence of
these claims might fairly be said t o stand in inverse proportion to the strength
of the evidence on which they rest. Students of Stoicism tend t o assume
uncritically that Cicero's novel plan, as set out in De Legibus I, t o place
R o m a n civil law on the foundation of a theory of natural law was actually
translated into practice by his juristic colleagues; and they see the 'De Legibus'
as the main vehicle for this postulated transmission and diffusion of Stoic
doctrine amon g the jurists 3 . Students of R o m a n jurisprudence, on the other
hand, whose affinity for explanations couched in terms of intellectual as
opposed t o social or political causation is remarkable, have likewise tended
in surprising numbers to identify Stoicism as the principal inspiration of
juristic theories of natural law, often without pausing to consider whether
the t w o theories are even compatible, much less whether a relation of
direct influence can be established 4 . While there have been a few dissenting
2
So, e. g.,
The Legal Policy and Reforms of Hadrian, JRS 3 4 ( 1 9 3 4 )
Gesammelte Abhandlungen, Heidelberg, 1 9 6 1 , vol. I , pp. 9 1 - 1 0 1 ) who
argues that "the Stoic philosophy with its doctrine of the general rights of man ... in
the age of Hadrian began to affect administration and legislation". The star example
has always been legislation which restricted the master's unrestrained power over slaves
and which advocated favor libertatis in cases of disputed status, but C . E. MANNING has
now concluded, in a thorough review of the evidence, that "there is no evidence that
any Stoic philosopher argued for either the abolition of or fundamental changes to the
institution of slavery": Stoicism and Slavery in the Roman Empire, in: W. HAAS E (ed.),
ANRW, vol. I I . 3 6 . 3 , Berlin-New York, 1 9 8 9 , pp. 1 5 1 8 - 4 3 . Against the claim that
Marcus Aurelius' legislative program was Stoic in motivation, see G. R. STANTON,
Marcus Aurelius, Emperor and Philosopher, Historia 1 8 ( 1 9 6 9 ) 5 7 0 — 8 7 ; cf. ID., Marcus
Aurelius, Lucius Verus, and Commodus 1 9 6 2 — 1 9 7 2 , in: H. TEMPORINI (ed.), ANRW,
vol. I I . 2 , Berlin-New York, 1 9 7 5 , pp. 5 3 7 - 3 9 .
F R I T Z PRINGSHEIM,
1 4 1 - 5 3 ( = ID.,
3
Both assumptions may be found in G E R A R D W A T S O N , The Natural Law and Stoicism,
in: A. A. LONG (ed.), Problems in Stoicism, London, 1971, pp. 232 — 35; one or the other
is accepted uncritically in such works as LONG'S Hellenistic Philosophy, London, 1974,
p . 2 3 1 ; F. H . SANDBACH'S T h e S t o i c s , L o n d o n , 1 9 7 5 , p . 1 6 a n d LUDWIG EDELSTEIN'S T h e
4
Meaning of Stoicism ( = Martin Classical Lectures, vol.21), Cambridge, Mass., 1966,
p. 83.
Some representative contributions include M. F. LAFERRIÈRE, De l'influence du stoïcisme
sur la doctrine des jurisconsultes romains, Compte-Rendu de l'Académie des sciences morales et politiques, Séances de juin et juillet, 1859, Paris, 1860, pp. 5 —109; W. KAMPHUISEN,
L'influence de la philosophie sur la conception du droit naturel chez les jurisconsultes romains, Revue historique de droit français et étranger, Sér. IV, 11 (1932) 389 — 412;
M.-P. GUIBAL, De l'influence de la philosophie sur le droit romain et la jurisprudence
de l'époque classique. Essai de synthèse historique, Paris, 1937; F E L I X SENN, De l'influence
grecque sur le droit romain de la fin de la République, in: Atti del congresso internazionale
di diritto romano, Bologna e Roma, 17 — 27 Aprile 1933, 2 vols., Pavia, 1934 — 35, vol. I,
pp. 99 — 110; JOHANNES STROUX, Griechische Einflüsse auf die Entwicklung der römischen
Rechtswissenschaft gegen Ende der republikanischen Zeit, ibid., vol. I, 111—32; C A R L
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voices5, it is fair to say that in both fields the hypothesis of extensive and
substantive Stoic influence on Roman jurisprudence is widely regarded as
historical fact.
If this hypothesis could be established, it would have considerable importance for both historical and philosophical reasons. As for the former, the
jurists' formulations and doctrines had an enormous influence on the development of late antique and medieval natural law theories6. Thus, to take just
one example, the account of ius naturale as that which nature has taught all
animals, attributed to Ulpian7, conflicts flagrantly both with Stoic theory and
with orthodox jurisprudential doctrine, neither of which grant juridical status
to non-rational animals. But the conspicuous place of this account at the
beginning of Justinian's 'Institutes' and 'Digest' guaranteed its historical influence, leading to centuries of scholastic discussion as to how to reconcile this
definition with the traditional Christian view that natural law consists in the
r a t i o n a l creature's participation in the eternal law8. Juristic formulae thus
importantly influenced the development of the scholastic discussion of natural
law. The chief source of information about Stoicism on which writers in this
tradition draw is of course Cicero; but if the jurists' doctrine on natural law
derives from the Stoics, we would have another route for the transmission of
this Stoic doctrine to the Latin West9. If we wish to understand Aquinas'
theory, we need to understand the symbiosis between the philosophical and
juristic doctrines which are brought together in the Thomistic theory.
The philosophical ramifications that would follow from establishment of
the hypothesis that juristic doctrine on natural law is Stoic in origin also are
considerable. For in that case, we micht expect the jurists to provide guidance
on how to conceive of the content of natural law, i.e., how to delimit the
5
6
7
8
9
JOACHIM FRIEDRICH, The Philosophy of Law in Historical Perspective, ed. 2, Chicago,
1963, pp. 27 - 35; and the collection of essays in: La Filosofia Greca e il Diritto Romano
( = Accademia Nazionale dei Lincei, vol. 221), Roma, 1976; O. BEHRENDS, Staatsrecht
und Philosophie in der ausgehenden Republik, SZ 10 (1984) 4 5 8 - 4 8 4 .
See esp. FRITZ SCHULZ, History of Roman Legal Science, Oxford, 1946, pp. 6 0 - 8 6 ;
G. NOCERA, JUS naturale nella esperienza giuridica romana, Milano, 1962; M. COLISH,
The Stoic Tradition from Antiquity to the Early Middle Ages, Leiden, 1985, vol. I,
pp. 341 — 89, who provides a detailed review of the scholarship.
See e. g. Isidore, Etymol. 5.4; for discussion: A.-H. CHROUST, The Philosophy of Law
from St. Augustine to St. Thomas Aquinas, New Scholasticism 20 (1946) 26 — 71; P. M.
FARRELL, Sources of St. Thomas' Concept of Natural Law, Thomist 20 (1957) 237 294; H. B. CROWE, The Changing Profile of the Natural Law, The Hague, 1977, pp. 7 2 110.
This text is usually considered an interpolation: see the discussion below, p. 4891.
See esp. Aquinas, Summa Theologica II.l, q. 94 a. 2; for the problem, see M. B. CROWE,
St. Thomas and Ulpian's Natural Law, in: St. Thomas Aquinas Commemorative Studies,
Toronto, 1974, vol. I, pp. 261 - 82; for Aquinas' debt to Roman jurisprudence, see J.-M.
AUBERT, Le droit romain dans l'œuvre de saint Thomas d'Aquin ( = Bibliothèque thomiste, vol. 30), Paris, 1955, esp. pp. 8 7 - 1 3 9 .
As to Cicero's influence on the natural law tradition in the Middle Ages, see G. VERBEKE,
The Presence of Stoicism in Medieval Thought, Washington, D.C., 1983, pp. 45 — 70.
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code of precepts which natural law prescribes to promote conduct in accordance with nature. This prospect is exciting because no Stoic account of the
precepts of natural law has survived10. If the jurists' conception of ius naturale
and related notions has a Stoic origin, we could expect to find in their doctrines
and decisions evidence for the content of natural law which has disappeared
from our philosophical sources.
To appreciate the importance of the complex problem at stake here, we
need briefly to summarize the development of the Stoic theory of natural
law 11 . The early Stoic scholarchs, who first developed the theory which came
in the course of antiquity to be identified as the theory of natural law 12 ,
conceive of it quite differently than the later philosophical tradition does. For
they deny that natural law can be summed up in a code of moral rules
comparable, e. g., to the primary and secondary precepts which constitute
natural law in Aquinas' theory 13 . They identify the koinos nomos with the
10
There is a detailed discussion of moral rules in Seneca, Epistles 94 - 95, but not in
connection with natural law; it is very doubtful that Seneca's account reproduces an
early Stoic view, but see now PHILLIP MITSIS, Seneca on Reason, Rule, and Moral
Development, in: J . BRUNSCHWIG and M . NUSSBAUM, Passions and Perceptions, Cambridge, 1993, pp. 2 8 5 - 3 1 2 .
11
Detailed discussion may be found in my book on ' T h e Theory of Natural Law in
Antiquity', Cornell University Press (forthcoming) where I have also offered a detailed
response to the criticism of my position offered by PHILLIP MITSIS in the article printed
above in this volume (ANRW II.36.7), pp. 4 8 1 2 - 4 8 5 0 . MITSIS and JOSEPH DEFILIPPO
have now offered a stimulating account of the Socratic origins of natural law theory in
their 'Socrates and Stoic Natural L a w ' in: PAUL A. VANDER WAERDT (ed.), T h e Socratic
Movement, Ithaca, N . Y., 1994, pp. 252 - 2 7 1 . 1 have discussed the philosophical motivation of the original theory of natural law in: Zeno's 'Republic' and the Origins of
Natural Law, in: PAUL A. VANDER WAERDT (ed.), T h e Socratic Movement, o p . c i t ., pp.
272 — 308; and its transformation at the hands of Diogenes of Babylon in: Politics and
Philosophy in Stoicism, Oxford Studies in Ancient Philosophy 9 (1991) 185 — 211 and in
D I R K O B B I N K a n d PAUL A . VANDER W A E R D T , D i o g e n e s o f B a b y l o n : T h e S t o i c S a g e in
the City of Fools, Greek, R o m a n , and Byzantine Studies 3 2 (1991) 3 5 5 - 9 6 .
12
13
I refer to the theory set out by Cicero in De Legibus I, adapting early Stoic sources; see
below, section III, p. 4869.
See Summa Theologica, II.1, q. 94 a. 2; for discussion: C. GRISEZ, T h e First Principle of
Practical Reason. A Commentary on the Summa Theologiae, 1—2 , Question 94, Article 2,
Natural Law Forum 10 (1965) 168 - 96 ( = A. KENNY [ed.], Aquinas: A Collection of
Critical Essays, London, 1970, pp. 3 4 0 — 82); R . A. ARMSTRONG, Primary and Secondary
Precepts in Thomistic Natural Law Teaching, T h e Hague, 1966, esp. pp. 58 — 85; D. J .
O'CONNOR, Aquinas and Natural L a w , L o n d o n , 1968, pp. 5 7 - 7 9 ; E. A. GOERNER,
On
Thomistic Natural Law. T h e Bad M a n ' s View of Thomistic Natural Right, Political
Theory 7 (1979) 1 0 1 - 2 2 . T h e failure of scholars of ancient philosophy to recognize the
basic difference between the early scholarchs' position and that of Aquinas (most recently,
e . g . , G . STRIKER, Origins of the Concept of Natural Law, Proceedings of the Boston
Area Colloquium in Ancient Philosophy 2 [1986] 79 — 94, now also in her 'Following
Nature: A Study in Stoic Ethics', Oxford Studies in Ancient Philosophy 9 (1991) 1 - 7 3
at pp. 35 — 50 assumes that Stoic natural law may be specified in a determined code of
moral rules) has seriously impeded understanding of the philosophical originality of
their position.
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PHILOSOPHICAL INFLUENCE ON R O M A N JURISPRUDENCE?
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sage's right reason, which enables him infallibly to act in rational consistency
with nature14; and they hold that this common law enjoins "virtuous actions"
or katorthomata, of which only the sage is capable, rather than the "appropriate actions" or kathekonta which ordinary moral progressors perform15. Since
the sage's right reason is circumstance-dependent, and since there is no moral
rule that does not admit of exception in "special circumstances", natural law
as conceived by the early scholarchs cannot be specified in any uniform code
of precepts or moral rules. By Cicero's time, however, the Stoic theory had
been revised in such a way that conduct in accordance with natural law was
now held to be attainable by moral progressors; accordingly, the strict early
Stoic standard that only katorthomata, actions performed by an agent who
possesses the sage's right reason, accord with natural law is now relaxed, and
the basis is laid for the conception in which natural law is specifiable in a
code of moral rules16. We might have expected Cicero's account in De Legibus
II - III of the code of laws appropriate to his best regime to clarify the precise
way in which this code accords with the theory of natural law set out in
De Legibus I, but his ambition to rival Plato's project in the 'Republic' and
'Laws' (De Leg. 1.15) leads him to set aside the source he employs in that
book and to construct a law code that instead accords closely with that of
Rome 17 . Hence it is unclear exactly how the early scholarchs' position was
revised so as to codify it in a set of precepts. If the Roman jurists' conception
of ius naturale did in fact derive from the Stoa, we could expect them to
provide precious evidence to help us reconstruct the later history of the Stoic
theory.
The available evidence, however, when read critically and without preconception, disappoints these expectations. In fact, it points so strongly to the
opposite of the hypothesis we are considering that we may safely conclude
14
For the original theory of natural law, see esp. D. L. 7.85 - 88 (quoting several early
Stoic texts including Zeno's 'On the Nature of Man' and Chrysippus' 'On Ends'), as
well as the exordium of Chrysippus' 'On Law' (preserved by Marcian, ap. Digest 1.3.2
= SVF 3.314), Cleanthes' 'Hymn to Zeus' (SVF 1.537), and Plutarch's account of the
"main point" of Zeno's 'Republic', ap. De Virt. Alex. 329 a - b.
15
That natural law prescribes katorthomata, of which only the sage is capable (Cic., De Fin.
4.15; cf. Arius Didymus ap. Stob., Eclog. II 9 6 . 1 0 - 9 7 . 1 4 , 1 0 2 . 4 - 1 0 ) , is maintained by
Chrysippus in his 'On Law' (ap. Plut., De Stoic. Rep. 1037 c - d ) and in his 'Demonstrations on Justice' (1041a — b); cf. 1038 a; Cic., De Leg. 2.8, 1.18 — 19. For the meaning of
the distinction between katorthomata and kathekonta, see G. B. KERFERD, What does
the Wise Man know?, in: JOHN M. RIST (ed.), The Stoics, Berkeley, 1978, pp. 1 2 5 - 1 3 6 ;
and for the circumstance-dependent character of the sage's katorthomata, see B. INWOOD,
Ethics and Human Action in Early Stoicism, Oxford, 1985, pp. 213 —15.
16
The origins of this transformation of the Stoic theory are too complex to consider here:
in 'The Theory of Natural Law in Antiquity', I argue that Antiochus, who is Cicero's
principal source in De Legibus I (see below, section III, p. 4871) played an important
role, but there certainly were antecedents among earlier Stoics for it.
For the sources of Cicero's law code, see the review of ELIZABETH RAWSON, The
Interpretation of Cicero's 'De Legibus', in: H. TEMPORINI (ed.), ANRW, vol. 1.4, Berlin New York, 1973, pp. 3 3 4 - 5 6 .
17
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PAUL A. VANDER WAERDT
that this hypothesis is untenable. As I shall try to show in this article 18 ,
there is no good reason to suppose that Stoic philosophy ever substantively
influenced juristic doctrine. During the late Republican period there is evidence, to be sure, that jurists drew upon philosophical theories of dialectic in
attempting to codify the civil law, that they occasionally employed technical
terms borrowed from Stoic logic and etymological theory, and that some
advocates even adopted a Stoic style of oratory. But this does not constitute
evidence that they revised juristic doctrine in light of philosophical considerations. Since the terms ius naturale and ius gentium are not attested before
Gaius, we have no basis on which to consider the possible influence of Stoic
natural law theory on Roman law before the mid-second century A. D. 1 9 . And
jurists of the Principate, so far from accepting this Stoic theory and attempting
to make the civil law accord with it, hold that ius civile is binding even when
it is contrary to nature or natural reason 20 . Thus they provide no evidence
for the Stoic account of the precepts of natural law which so regrettably has
vanished from our sources. The best case for possible Stoic influence, I
believe, is Gaius' account of the ius gentium as that which ratio naturalis has
established among all nations, which has antecedents in book III of Cicero's
De Officiis'; but even here, I shall argue in section IV, Gaius understands this
doctrine quite differently than Cicero does. The hypothesis that the Stoics
substantively influenced juristic doctrine is plausible only if one both fails to
recognize the novelty of Cicero's program in De Legibus I to put Roman law
on a philosophical foundation, and reads uncritically texts from the 'Digest',
in which philosophical tags from the post-classical period are common.
11. Stoicism and Roman Jurisprudence
of the Late
Republic
Before proceeding to set out our case in support of these claims, we
should review two considerations which traditionally have been thought to
18
19
The relevant literature is of course enormous. In keeping with the aims of ANRW, and
the likely unfamiliarity of philosophical readers with the field of Roman jurisprudence,
I have tried to provide sufficiently detailed references to make clear the status quaestionis
(hence the emphasis on more recent scholarship), but I make no pretensions to bibliographical completeness.
As noted by B. NICHOLAS, An Introduction to Roman Law, Oxford, 1962, p. 56. The
meaning of ius naturale in particular is rather obscure: it does not denote "a special
sphere of law, a particular category of law, or a system of legal norms", as A. BERGER
states in his Encyclopedic Dictionary of Roman Law ( = Transactions of the American
Philosophical Society, vol. 43.2), Philadelphia, 1953, pp. 5 3 0 - 5 3 1 . It is defined as
diversely as "that which nature has taught all animals" (Dig. 1.1.1.4), as "what is always
good and fair" (Paul ap. Dig. 1.1.11 pr.: quod semper est bonutn et aequum), and as
that which all nations equally observe (Just., Inst. 1.2.11); for discussion, see below,
sections I V - V , p p . 4 8 7 9 - 4 8 9 3 .
20
See below, section IV, pp. 4 8 8 4 - 4 8 8 6 .
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lend weight to the hypothesis in 'question. The first is that there is indeed
evidence that the Roman jurists, particularly during the formative period of
the late Republic, knew something of Stoic philosophy; the second is that
Cicero explicitly undertakes to revise the ius civile in such a way as to place
it on the foundation of a theory of natural law deriving from the Stoics. With
respect to the first consideration, I shall argue that the jurists' knowledge of
Stoicism does not lead them to revise their legal doctrine; as for the second,
that Cicero's program is entirely without parallel in the subsequent history of
Roman jurisprudence. Although the point is usually neglected, it should be
emphasized that Cicero himself was not a jurisconsult; although he was
relatively well versed in law, his interest in it arises principally from his
rhetorical and philosophical work, and one should not take his program as
necessarily representative of that of his juristic contemporaries21.
There is one juristic passage which clearly reveals knowledge of the Stoic
theory of natural law. Marcian, a late jurist who dates from Caracalla's era 22 ,
preserves in book I of his 'Institutes' the famous exordium of the 'On Law'
of Chrysippus, philosopbus summae stoicae sapientiae: law is the king of
divine and human affairs; it provides a standard of justice and injustice,
prescribing what political animals ought to do and proscribing what they
ought not do 23 . The extract preserved in the 'Digest' does not indicate what
use, if any, Marcian made of this quotation, and caution in evaluating it is in
order. Marcian's 'Institutes' were of an unusual character, in the nature of
unfinished preparatory studies24. Since he begins the passage in question with
a definition of law quoted from Demosthenes25, and makes no effort to relate
it to the quotation from Chrysippus' 'On Law' that follows, the latter is most
probably a decorative flourish without doctrinal significance, and we must
look farther afield if we wish to find plausible evidence of substantive Stoic
21
F o r an example, witness his ridicule of the prospect that principes civitatis should occupy
themselves with debating an issue like that on which Q. Mucius and Manilius disagreed
with Brutus: does the partus ancillae belong t o the owner or the usufructuary (De Fin.
1.12)? This point of law was much debated by the jurists: the position of Brutus
eventually prevailed (Ulpian, Sabinus 17: Dig. 7 . 1 . 6 8 ) , but JERZY LINDERSKI has now
convincingly argued that the position of Mucius and Manilius was in effect in Cicero's
day: see his 'Partus Ancillae'. A 'Vetus Quaestio' in the Light of a N e w Inscription,
Labeo 33 (1987) 1 9 2 - 1 9 8 . For Cicero's relations with jurists, see generally M . BRETONE,
Cicerone e i giuristi del suo tempo, Quaderni di Storia 10 (1979) 2 4 3 — 272.
22
See H . J. ROBY, An Introduction to the Study of Justinian's Digest, Cambridge, 1886,
pp. cciv — ccv. This book provides a convenient guide to the evidence bearing on the
lives and wor k of jurists excerpted in the 'Digest'.
23
Justinian, Digest 1.3.2 = SVF 3 . 3 1 4 (all references are to the Latin text of T. MOMMSEN
and to the translation [sometimes modified] edited by A. WATSON, T h e Digest of
Justinian, Philadelphia, 1985).
24
See SCHULZ (1946), pp. 172 — 73, w ho characterizes Marcian's 'Institutes' as " a literary
monstrosity".
25
Discussed by KAMPHUISEN (1932) 4 0 1 - 4 0 3 , wh o attempts to explain how this passage
(Contra Aristogitonem 16) could accord with juristic doctrine.
319
ANRW II 36.7
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PAUL A. VANDER WAERDT
influence 26 . There is no evidence that Marcian was following Republican
precedent in quoting this passage of Chrysippus, although Cicero's account
in De Legibus I would have been available to them.
The most promising terrain in which we might discover such influence
lies in the increasing use of Stoic rhetoric and dialectic by jurists and orators
in the late Republican period 27 . It was Greek oratory and learning in the arts,
Cicero claims (De Oratore 1.14; cf. 2 2 - 2 3 ) , which first made good Roman
enthusiasm for eloquence by remedying its lack of ratio. That Greek dialectic
was sometimes employed by advocates should come as no surprise, inasmuch
as legal disputes often turned upon the precise meaning of statutes or procedures: in such a case, appeal to current philosophical doctrine or distinctions
would represent one weapon in the orator's arsenal 28 . Cicero himself attaches
great importance to Greek dialectic in the constitution of Roman law as a
proper art, an importance that is reflected, e.g., in his judgment on the
superiority of Servius to Q. Mucius Scaevola (see below, p. 4860).
What is the philosophical ancestry of these dialectical principles? In the conclusion of his review of oratorical theory in his 'Partitiones Oratoriae' (40.139 — 40),
Cicero credits nostra Academia with the distinction of being the only school
which provides the dialectical tools requisite for the successful orator. But it
needs to be remembered that Academic dialectical practice during this period
had been shaped through two centuries of intense debate with the Stoa, to the
point that Academic skepticism had become in the view of such dissenters as
Cicero's teacher Antiochus, and later Aenesidemus, who broke away from the
Academy to found the Pyrrhonist movement, nearly indistinguishable from that
of the Stoics 29 . And since Cicero himself was trained intensively in dialectic
26
As an illustration of the problem, note that this section of the 'Digest' also has several
references to Theophrastus, quoted from Pomponius, Sabinus 22 (1.3.3) and from Paul,
Plautius 17 (1.3.6). The frequent references to Homer in the 'Digest' are similarly
decorative, inasmuch as they are entirely unnecessary for the argument; see, e.g., Paul,
Edict 33 (18.1.1.1) who quotes and corrects Sabinus' appeal to Homer in a dispute with
the Proculians over the question of whether the law of sale applies in cases in which no
money changes hands. Paul's resolution of the dispute in no way relies upon his learned
citations from Homer.
27
For surveys of the influence of Greek rhetoric and dialectic on the Roman jurists, see
SCHULZ (1946) pp. 62 — 86; F. WIEACKER, Über das Verhältnis der römischen Fachjurisprudenz zur griechisch-hellenistischen Theorie, Iura 20 (1969) 448 - 477; BRUNO SCHMIDLIN,
Horoi, pithana und regulae. Zum Einfluß der Rhetorik und Dialektik auf die juristische
Regelbildung, in: H. TEMPORINI (ed.), ANRW, vol. 11.15, B e r l i n - N e w York, 1976,
pp. 101 - 1 3 0 ; ELIZABETH RAWSON, Intellectual Life in the Late Roman Republic, Baltimore, 1985, pp. 201 - 1 4 .
For an account of the kinds of cases the advocate had to be able to contend with, see
Cic., De Orat. 1.165 — 181. For an amusing appeal to received scientific thought, see
Paul's quotation (ap. Dig. 1.5.11) of Hippocrates in support of the legitimacy of a sevenmonth baby.
The fundamental study of this problem is that of HAROLD TARRANT, Platonism or
Skepticism? The Philosophy of the Fourth Academy, Cambridge, 1985; see also
J. GLUCKER, Antiochus and the Late Academy ( = Hypomnemata, vol.56), Göttingen,
1978, with D. N. SEDLEY, The End of the Academy, Phronesis 26 (1981) 67 - 75.
28
29
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throughout his life by his house philosopher, the Stoic Diodotus (Brutus 90.309),
it is reasonable to suppose that Stoic theory exercised both a direct and an
indirect influence on his conception of dialectic.
The most important respect, however, in which Greek dialectic influenced
the jurists lay in attempts to organize and codify the ius civile during the late
Republican period. As early as the second half of the second century B. C.,
the traditional civil law which had grown up around interpretation of the
Twelve Tables began to be destabilized by the increasing importance of the
annual Praetor's edict, whose flexible formulary system provided much more
scope for innovation than the formalistic legis actio procedure30. The rise of
rhetorical advocacy tended to highlight the problem of legal interpretation;
and this in turn contributed to the instability of the civil law. It is under the
stress of such circumstances that Roman jurisprudence began to develop its
own distinct literary canons and traditions, as the jurisconsults' traditional
role of giving of advice in the form of oral responsa began to give way to the
constitution of an art of civil law 31 . By the late Republican period, as we shall
see in the next section (below pp. 4866 — 69), the need to codify the civil law
had become a pressing political concern; and various plans, some influenced
by philosophical speculation, were in circulation for effecting this codification.
Jurisprudence during this period stood as much in need of organization
as did the civil law itself. In 'De Oratore' (1.186 — 90), the dramatic date of
which is 91 B. C., Cicero has Crassus look forward to the codification of the
ius civile according to principles of division avowedly borrowed from the
philosophers, and we may suppose that the program here envisaged is one
which Cicero himself would have undertaken in his lost or never completed
'De lure Civili in Artem Redigendo'32. Prior to this date, no systematic treatment of the civil law had been attempted. About a century earlier, S. Aelius
Paetius had compiled the Tripertita', which comprised the Twelve Tables, the
body of law that had grown out of interpretation of them, and the relevant
legis actio33. And in the preceding generation three jurisconsults, Brutus,
Manilius and P. Mucius Scaevola, who were later credited with having estab30
31
On this development, see, for instance, A. WATSON, Law Making in the Later Roman
Republic, Oxford, 1974, pp. 31 — 62. For the praetor's formula, see, e.g., A. GREENIDGE,
The Legal Procedure of Cicero's Time, Oxford, 1901, pp. 1 5 0 - 1 7 5 ; H. F. JOLOWICZ,
Historical Introduction to the Study of Roman Law, ed. 2, Cambridge, 1952, pp. 205 —
223, 226 — 233. Cicero notes the shift in tracing the source of law from the Twelve Tables
to the Praetor's edict at De Leg. 1.17.
On the development of Roman legal science during the late Republican period, see now
BRUCE FRIER, The Rise of the Roman Jurists, Princeton, 1985, esp. pp. 1 3 9 - 1 7 1 , 2 5 2 287, with the critical assessment of ALAN WATSON, The Birth of the Legal Profession,
Michigan L a w Review 85 (1987)
32
33
319»
1071-82.
On which see below, section III, p. 4868.
See F. D'IPPOLITO, I Giuristi e la Citta. Ricerche sulla giurisprudenza romana della
repubblica, Napoli 1978, pp. 53 - 70; for commentaries on the Twelve Tables, see Cic.,
De Leg. 2.59 (citing Sextus Aelius, on whom note also De Rep. 3.33, and Lucius Acilius),
who also states that the custom of memorizing the Tables, prevalent in his youth, has
fallen into disuse.
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PAUL A. VANDER WAERDT
lished the civil law (Pomponius ap. Dig. 1.2.2.39: fundaverunt
ius civile),
attempted to meet the need for interpretation of the Praetor's edict by producing casebooks of responsa34.
But it was not until the decade before his murder
in 82 B. C. (on which see Cic. Rose. A m . 33) that Q . Mucius Scaevola produced
the first lawbook in which the ius civile was arranged generatim35.
This was the
founding work of R o m a n legal science: although still importantly influenced by
the Twelve Tables 3 6 , Mucius attempted t o integrate some of the modifications
introduced by the Praetor's edict into his account of the civil law. H e also
wrote a liber horon, winning him a reputation as an expert on definition,
which he employs as a basis for argument in his decisions (e.g. Dig. 9 . 2 . 3 1 ) 3 7 .
Mucius' arrangement of the civil law generated much debate among the
Republican jurists 3 8 , and Cicero in particular holds it up for criticism for
34
See, e.g., WATSON ( 1 9 7 4 ) , pp. 1 3 7 — 1 4 1 . Brutus' experiment of producing a collection
of responsa in dialogue form in his 'De lure Civili' is the subject of Cicero's merriment
35
According to Pomponius' account in his history of Roman jurisprudence (a fortunate
exception to the jurists' aversion to the study of legal history: SCHULZ [1946] pp. 134 —
135, 168 — 171; and esp. D I E T E R N Ö R R , Pomponius oder 'Zum Geschichtsverständnis
der römischen Juristen', in: H. TEMPORINI [ed.], ANRW, vol. 11.15, Berlin-New York,
1976, pp. 497 - 604), Dig. 1.2.2.41: ... QUINTUS MUCIUS Pubiii filius pontifex maximus
ius civile primus constituit generatim in libros decern et octo redigendo. On Mucius'
work, see esp. F R I E R (1985) 155 —171; P E T E R STEIN, The Development of the Institutional
System, in: P. G. STEIN and A. D. E. LEWIS (eds.), Studies in Justinian's Institutes in
Memory of J. A. C. Thomas, London, 1983, pp. 151 - 154; A. SCHIAVONE, Nascita della
Giurisprudenza, Rome-Bari, 1976; F. HORAK, SZ 95 (1978) 402 - 421; for its literary
context: E. RAWSON, The Introduction of Logical Organization into Latin Prose Literature, Papers of the British School at Rome 46 (1978) 24 - 29; and, for a reconstruction
of its organization, A. WATSON, Law Making in the Later Roman Republic, Oxford,
1974, pp. 143 —158 (a different view is proposed by D. LIEBS, Rechtsschulen und Rechtsunterricht im Prinzipat, in: H. TEMPORINI [ed.], ANRW, vol. 11.15, Berlin, 1976, p. 223).
We can conjecture that Mucius' work falls after the dramatic date of 'De oratore' because
Cicero would have had to mention it there.
36
As F R I E R ( 1 9 8 5 ) , p. 1 5 9 remarks about Mucius' book: "... it ignores important innovations introduced through the [Praetor's] Edict except where they can be directly related
to the content of the Twelve Tables and other statutes." WATSON, in 'The Birth of the
Legal Profession' ( 1 9 8 7 ) 1 0 7 6 — 7 7 , suggests that Mucius' omission of matters which did
not have a proper cause of action by the late third century B. C. is an indication that
he is following some 'older, now unknown model whose roots lay in the distant past
and which concentrated on actions". The restriction of Mucius' choice of subject-matter
may be due to reliance on a hypothetical source of this kind, but Pomponius' testimony
(as WATSON would agree) is clear with respect to his originality in organizing the civil
law generatim.
Thus Cicero cites Mucius as an authority to support the completeness of a definition at
Top. 29. For an important non-legal example, see below, note 38.
Gaius' report (Inst. 1.188) about Mucius' five genera of tutela provides a good indication
both of the character of his work and its reception: Gaius states that the species of tutela
are clear, but that there was considerable debate among the veteres about the number
of genera, with Servius Sulpicius maintaining that there are three, Labeo two and others
as many genera as species; see SCHULZ (1946), p. 64. Mucius is also attested to have
at D e O r a t . 2 . 2 2 3 - 2 2 5 .
37
38
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failing t o impose a logical organization on the civil law in partes as well
as genera (Brutus 3 9 . 1 4 5 - 4 1 . 1 5 2 ) . Hence his judgment that Mucius' legal
knowledge, being founded exclusively upon practical experience, is inferior t o
that of Servius, w h o transformed legal knowledge into a science by mastering
also the arts of division, definition, interpretation and logic 3 9 .
N o t all of Cicero's contemporaries, to be sure, accepted his recommendation that the civil law be organized on the model of Greek philosophy. But
the continuing debate among jurists of the late Republican and early Imperial
periods concerning the proper divisio of legal subjects provides good evidence
that Greek dialectical and logical theory did influence the efforts to codify the
ius civile during the late Republican period 4 0 . And while the theory in question
was by no means exclusively Stoic, there is some evidence of detailed knowledge of the Stoic logic 4 1 . T h e case of Labeo (c. 5 0 B . C . - 1 0 A . D . ) , the
intellectual father of the Proculian school of jurisprudence, is particularly
important 4 2 . In several respects he appears to have appropriated tools from
Stoic philosophy in order to clarify important forms of legal reasoning. His
learning in grammatica
and etymology was especially noteworthy 4 3 .
39
40
41
42
43
distinguished genera of possession (Paul, Edict 54 characterizes his view as ineptissimum:
Dig. 41.2.3.23), and Servius of theft (Gaius, Inst. 3.183, who sides with the opposing
view of Labeo). Mucius' work, and that of Masurius Sabinus which was based upon it,
were the subject of the subsequent commentaries on the civil law during the imperial
period.
The crucial text is Brutus 41.152; cf. Orat. 4.16; De Orat. 1.186-90, quoted in part
below, p. 4869; and PETER STEIN, The Place of Servius Sulpicius Rufus in the Development
of Roman Legal Science, in: Festschrift für Franz Wieacker, Góttingen, 1978, pp. 175 183. According to Pomponius (Dig. 1.2.44), Servius was the first to write on the praetor's
edict.
For a discussion of the philosophical taxonomy of the sources of law, see D. NÓRR,
Divisio et Partitio, Berlin, 1972.
For a convenient introduction to Stoic dialectic, see A. A. LONG and D. N. SEDLEY, The
Hellenistic Philosophers, Cambridge, 1987, vol.1, pp. 183 — 95. For evidence that the
Roman jurists drew upon Stoic logic, see J. MIQUEL, Stoische Logik und rómische
Jurisprudenz, SZ 87 (1970) 8 5 - 1 2 2 ; M. TALAMANCA, I 'Pithana' di Labeone e la lógica
stoica, Iura 26 (1975) 1 - 4 0 ; SCHMIDLIN (1976), pp. 1 1 1 - 1 1 7 , with bibliography listed
on pp. 129 —130; and D. E. L. JOHNSTON on Stoic ideas about disjunctions in his: On a
singular book of Cervidius Scaevola, Berlin, 1987, pp. 74 - 77.
Pomponius, in his account (ap Dig. 1.2.47) of Labeo as founder of one of the two schools
of jurisprudence at Rome, attributes many of his legal innovations to his other branches
of learning: ...Labeo ingenii qualitate et fiducia doctrinae, qui et ceteris operis sapientiae
operam dederat, plurima innovare instituit. Labeo's use of analogical reasoning, and its
influence on Proculian legal methodology, are lucidly discussed by PETER STEIN, The Two
Schools of Jurists in the Early Roman Principate, Cambridge Law Journal, Jubilee Issue,
31 (1972 B) 9 — 31; for his use of Stoic logic, see the literature cited in the previous note.
See Aulus Gelius, Noct. Att. 13.10.1. The Stoics were of course renowned for their
interest in etymology, which in their theory is a guide to the true nature of things (see
Augustine, De Dialéctica, VI). See PETER STEIN, The Relations between Grammar and
Law in the Early Principate. The Beginnings of Analogy, in: La critica del testo. Atti del
secondo congresso internazionale della Societá Italiana di Storia del Diritto, Firenze,
1971, vol.11, pp. 7 5 7 - 7 6 9 ; RAWSON (1985), p. 205. A certain Aelius Gallus is attested
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PAUL A. VANDER WAERDT
In the case of oratory, some advocates adopted a distinct style that was
associated with the Stoa. It is difficult, given the paucity of our evidence, to
assess to what extent this style is mandated by the early Stoic scholarchs'
original and distinctive position on rhetoric 44 . Hence we must rely principally
upon Cicero's testimony, bearing in mind that it may be influenced by his
negative judgment upon the efficacy of this style in appealing to popular
approval, which he considers an essential test of successful rhetorical practice 45 .
As Crassus puts it in his review of the rhetorical theory of the philosophical
schools in De Oratore III, there is an incongruity between the requirements
of advocacy and the Stoic view that all who are not sages (and there are no
sages) are slaves, brigands, enemies and insane: it would be the height of folly,
Crassus contends, to entrust the conduct of a public meeting to someone who
holds that none of those present is sane (3.65 — 66). Although the Stoa is the
only one of the philosophical schools to make eloquentia a virtue and form
of wisdom, its oratorical style he then describes as follows:
Accedit quod orationis etiam genus habent fortasse subtile et certe acutum, sed, ut in oratore, exile, inusitatum, abhorrens ab auribus vulgi,
obscurum, inane, ieiunum, attamen eius modi quo uti ad vulgus nullo
modo possit; alia enim et bona et mala videntur Stoicis et ceteris civibus
vel potius gentibus ...
This harsh judgment reflects Cicero's opinion that rhetoric is to be judged
with reference to its popular appeal, a consideration which leads him to prefer
the brand of rhetoric practised by the Peripatetics in this respect 46 .
44
45
46
to have written a treatise on the meaning of words relevant to the ius civile (Aulus Gellius,
Noct. Att. 16.5.3). For an extensive collection of texts bearing on the interpretation of
disputed terms, see Dig. 50.16.
See now CATHERIN E A T H E R T O N , Hand over Fist. The Failure of Stoic Rhetoric, C Q N. S.
38 (1988) 392 — 427, whose conclusion that "there is no such thing as 'Stoic rhetoric'"
seems to me doubtful. It is clear that the Stoics conceive of rhetoric as one of two parts
of logic, dialetic being the other, which are concerned with the art of speaking well and
truly: hence only the sage can be the true rhetorician (D. L. 7.41—44; Alex., SVF 2.124).
Yet it does not follow that the sage makes no concessions to popular appeal when he
speaks in assembly: Chrysippus does advocate a frank and unaffected style, but he also
makes clear that the sage, when speaking in assembly, will go so far as to speak as
t h o u g h wealth etc. are goods, a consideration that shows that the sage will tailor his
speech significantly to his audience's expectations (both testimonia come from his
'On Rhetoric': see Plut., De Stoic. Rep. 1047 a - b , 1034 b). In my opinion, A T H E R T O N 'S
account of "the failure of Stoic rhetoric" is unduly influenced by Cicero's polemic, which
fails to take proper account of the resources of the Stoic position. On the evidence
(mostly neglected by ATHERTON) of Philodemus' report of and attack on Diogenes of
Babylon's position in 'De Rhetorica' see now D I R K O B B I N K and PAUL VANDER W A E R D T ,
Diogenes of Babylon: The Stoic Sage in the City of Fools, Greek, Roman and Byzantine
Studies 32 (1991) 3 5 5 - 9 6 .
Cicero's negative judgment on Stoic rhetoric receives the support of Quintilian, Inst.
12.2.25.
For further criticism along these lines, see Brutus 3 1 . 1 1 8 - 2 1 (cf. A. E. DOUGLAS' edition
of the 'Brutus', Oxford, 1966, pp. 97 — 98, on Cicero's reference to the Academics here)
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Yet Cicero's negative judgment on Stoic oratorical style was by no means
universally accepted among his contemporaries, among whom some of the
most distinguished were well-versed in Stoic philosophy. Thus Q. Aelius
Tubero, the nephew of Scipio Africanus (DeRep. 1.14) who is one of the
chief interlocutors of 'De Republica', was a Stoic of sufficient standing that
Panaetius, Hecaton and Posidonius all dedicated books to him47; and Cicero,
in 'De lure Civili in Artem Redigendo', singles him out for his scientia iuris
and doctrina - which, as Aulus Gellius explains, refers to his expertise in
Stoic dialectic48. Among orators in the Stoic style, only the younger Cato,
whose sole speech recorded for posterity was that in which he advocated
death for the Catilinarians (Plut., Cat. Min. 23.1), wins Cicero's unqualified
praise for eloquence49. In the prooemium of 'Paradoxa Stoicorum' (1 — 3),
Cicero marvels at Cato's success in winning public approval even though his
positions — being as he is a Stoic exemplar (perfectus mea sententia Stoicus) do not accord with those of the multitude, and though he belongs to a school
which does not aim at oratorical ornament (florem orationis), but proves its
points as it were by means of minute proofs (minutis interrogatiuncilus quasi
punctis quod proposuit effecit). The paradox of a popular Stoic orator is
sharpened when Cato's case is set against that of P. Rutilius, doctus vir et
Graecis litteris eruditus, Panaeti auditor, prope perfectus in Stoicis, whose
adherence to a Stoic oratorical style led him to be condemned on a false
charge50. Our prosopography of jurists known to have been trained in Stoic
philosophy continues with Q. Mucius Scaevola, whom we have already met:
he also was advocate of the famous Stoic divisio between the theology of the
poets, philosophers and cities51, and Cicero's own instructor in the ius civile
47
48
49
50
51
with De Fin. 4.7; Quint., Inst. 10.1.84. See also the criticism of Diogenes of Babylon's
style in De Oratore 2.159. The failure of Stoic rhetoric to respond to the expectations
of conventional rhetoric is one of the main themes of the rather unsympathetic account
of ATHERTON (1988) 4 0 0 - 0 5 .
Panaetius: De Fin. 4.23, Tusc. Disp. 4.4, Acad. Pr. 135; Hecaton: De Off. 3.63; Posidonius:
Plut., De Nobil. 18.3.
Aulus Gellius, Att. Noct. 1.22.7; cf. Cic., Brutus 31.117: servus et congruens cum ea
disciplina [sc. Stoicorum] quam colebat, paulo etiam durior; Pomponius ap. Dig. 1.2.2.40:
ille stoicus. He was a pupil of the Scaevolae (De Off. 2.47), and of Panaetius (De Off.
3.10).
Cic., Brutus 31.117.
Cic., Brutus 30.113 — 116, which relates how Rutilius was so impressed with the Stoic
notion of the sage's self-sufficiency that he did not properly defend himself against
trumped-up charges at a trial which came to exemplify miscarriage of justice (see
E. BADIAN, Q. Mucius Scaevola and the Province of Asia, Athenaeum 34 [1956] 1 0 4 23; also G. L. HENDRICKSON, The Memoirs of Rutilius Rufus, CP 28 [1933] 1 5 3 - 7 5 ) .
For Rutilius' association with Panaetius, see Cic., De Off. 3.10.
For the tria genera deorum, August. Civ. Dei 4.27 (see G. LIEBERG, Die 'theologia
tripertita' in Forschung und Bezeugung, in: H. TEMPORINI [ed.], ANRW, vol. I. 4, Berlin New York, 1973, pp. 63 — 115), cf. Athenaeus 6.274 e, who says of Mucius, Tubero and
Rutilius Rufus that they adhered to the Stoa's dogmas. For Mucius' friendship with
Panaetius, see De Orat. 1.11; for the problem of Mucius' Stoicism, see R. A. BAUMAN,
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PAUL A. VANDER WAERDT
(Brutus 89.306); Spurius Mummius, one of the interlocutors in 'De República' 5 2 ; Sextus Pompeius, who devoted himself to acquiring a detailed knowledge of ius civile, geometry and Stoic philosophy (Brutus 47.175); and Lucius
Aelius, a Stoic who had no interest in being an orator but who wrote speeches
for others (Brutus 56.205 - 207). Finally, we must not omit Cicero himself,
who studied dialectic under the direction of his house-philosopher, Diodotus
the Stoic, throughout much of his adult life (Brutus 90.309).
This roster of distinguished jurisconsults and advocates trained in Stoic
philosophy is impressive. But this training need not have substantively influenced their understanding of the civil law. Since Stoicism had become part of
the standard higher education of the time, it would be most surprising if the
jurists did not at least occasionally display knowledge of it. And it is easy to
see how an acquaintance with philosophical theories, e. g., of etymology, could
aid in the interpretation of arcane legal texts. But juristic appropriation of
such tools of logical analysis does not entail that they also turned to philosophy
for substantive guidance in formulating juristic doctrine 53 . This conclusion
applies to jurists of the Principate as much as those of the late Republican
period, as we shall see below in sections IV —V, pp. 4 8 7 9 - 4 8 9 3 .
It is the second consideration which has proven most influential in lending
plausibility to the hypothesis that Stoicism substantively influenced juristic
doctrine. This is Cicero's evident ambition, displayed clearly in De Legibus I,
to put Roman jurisprudence on a new footing by founding its traditional ius
civile in a theory of natural law. Since it is this text in which classical and
philosophical scholars tend first to encounter Roman law, it has had a broad
influence in shaping their understanding. As we shall see in section III, p. 4867,
however, there is no evidence that any Roman jurisconsult ever attempted to
reconstitute the discipline along the lines suggested by Cicero. Inasmuch as
the broader perspective on the civil law which Cicero advocates had not
previously been undertaken, as he himself attests (De Leg. 1.14), we should not
assume without clear evidence that contemporary and later jurists undertook to
revise the field in accordance with Cicero's recommendations. Moreover, even
Cicero himself concedes that the jurisconsults have some notion of universal
ius54, so we need clear evidence that references to nature or ius naturale in
Lawyers in Republican Politics. A Study of the Roman Jurists in their Political Setting,
3 1 6 - 8 2 B . C . , Munich, 1983, pp. 3 5 1 - 3 6 1 . For Cicero's appreciation of Mucius, see
B r u t u s 3 9 . 1 4 5 - 4 0 . 1 4 9 ; DOUGLAS' n o t e a d 1 5 3 . 2 6 , p p . 1 2 0 - 1 2 1 ; f u r t h e r b i b l i o g r a p h y a t
FRIER ( 1 9 8 5 ) 161 n o t e 9 0 .
52
53
54
Cic., Brutus 25.94: doctus ex disciplina Stoicorum-, cf. De Rep. 1.18; Amic. 69.
For an account of the differences between the classification of standards of liability in
the jurists and in Greek philosophical antecedents, see DAVID DAUBE, Roman Law.
Linguistic, Social and Philosophical Aspects, Edinburgh, 1969, pp. 131 —156; for a recent
study of Peripatetic influence on the doctrine of error in law, see L. WINKEL, „Error iuris
nocet". Rechtsirrtum als Problem der Rechtsordnung, Zutphen, 1985; see also D. NÓRR,
Causa Mortis, Munich, 1986, who argues that no philosophy contributed much to the
juristic analysis of causation.
De Leg. 1.14; see below, p. 4869.
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juristic texts presuppose a specifically S t o i c position. The mere fact that they
employed such terms as ius naturale proves nothing by itself, as will become
evident in section IV, pp. 4 8 7 9 - 4 8 8 6 below.
Certain other facts about legal practice during the late Republican period,
often neglected by classicists or philosophers when discussing this subject,
need to be taken into account in considering the hypothesis of extensive Stoic
influence on the jurists. In the first place, their advisory position was such as
not to afford them the opportunity to shape the law directly by developing
general theoretical positions in the adjudication of particular cases. Their
traditional practice consisted in giving oral responsa to litigants, sometimes
reduced to written form when they were to be adduced at trial; they only
rarely served as judges who, in any case, were charged only with resolving
the issue stated in the praetor's formula; the adjudication of particular cases
was instead left to laymen who only rarely possessed legal expertise. Moreover,
while they appear to have helped the praetors draft their annual proclamations,
they rarely were in a position to shape the law directly through possession of
this office55. On the other hand, their influence was by no means negligible:
"The fact that everyone else involved in the process of law (magistrate, judge)
was a lay person is likely to have given the jurists an enhanced role in the
formation of the law, precisely because theirs was the only professional
input" 56 . The jurists' professional status gives them a crucial role in the
development of the law, albeit one structured by their advisory position. The
same considerations apply to legal education: as is well known, legal instruction during this period involved practical apprenticeship to a senior jurisconsult; and it took the form of study of particular cases, not of the philosophy
of law. When legal education came to assume a more academic form during
the first two centuries of this era, two schools of law were founded, the
Sabiniani and Proculiani57. While the two schools differed on numerous points
of legal doctrine, and appear to have adopted different methods of legal
argumentation, there is no evidence that differing philosophical affiliations
are responsible58. No jurisconsult or juristic school at Rome ever appears to
55
See, e.g., FRIER (1985), pp. 44 - 57, 96, who points out (p. 48) that "None of the Urban
Praetors in the late Republic is known to have had more than a layman's comprehension
of Roman law." On the other hand, each will have had a consilium, and we may suppose
that this is the institution through which the jurists will have influenced the formation
of the law most directly.
56
As DAVID JOHNSTON has well put it to me, per
57
Our evidence is supplied principally by Pomponius in the Digest, 1.2.2.47 — 53; by Pliny,
Ep. 7.24.8; and by Gaius' reports of differences between the two schools in his 'Institutes':
for an inventory of passages, see DE ZULUETA (1953), vol. II, p. 9 note 5. For a convenient
digest of the evidence concerning disagreements between the two schools, see ROBY
(1886), pp. cxxiv — cxli.
Contra, e. g., E. VERNAY, Servius et son école. Contribution à l'histoire des idées juridiques à la fin de la République romaine, Paris, 1909, pp. 90 — 95; DE ZULUETA (1953),
part II, pp. 78 - 79, accepts Aristotelian influence on the Proculians. For discussion of
the different modes of legal argumentation employed by the two schools, see SCHULZ
58
litteras.
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PAUL A. VANDER WAERDT
have promoted a particular philosophical position in legal education. Hence
it should occasion no surprise that legal literature, despite the important
developments which begin during the late Republican period, never takes the
form of an exposition of the philosophical basis of the civil law as advocated
by Cicero in De Legibus I.
In what follows, we shall test the hypothesis of pervasive Stoic influence
on the classical jurists through close study of their doctrine on ius naturale,
ius gentium and ratio naturalis. After reviewing Cicero's novel plans for the
reformation of Roman jurisprudence (section III, pp. 4866 — 4879), we examine
the relation between juristic and Stoic theories of natural law, to see in
particular whether Cicero influenced Gaius' doctrine of ius gentium as that
which natural reason has established among all nations (section IV, pp. 4879 4886). Next, we consider a selection of juristic texts from the Imperial period
often adduced as examples of Stoic influence (section V, pp. 4887 — 4893). This
review of the evidence will lead to the conclusion (section VI, pp. 4893 — 4895)
that the Stoics' theory of natural law exercised no substantive influence on
Roman jurisprudence of the classical period. The appearance of philosophical
tags in juristic texts preserved in the 'Digest', often assumed to be an indication
of extensive philosophical influence, is in fact mainly a decorative, postclassical phenomenon which is Christian rather than Stoic in inspiration.
III. Cicero's Plans for the Reformation
of Roman
Jurisprudence
Cicero advances two proposals, whose originality and influence varied
greatly, to reform the ius civile of his day. The first involves codification of
the civil law by reducing it to an art which is organized on the model of
genera and species. This plan is extensively discussed by late Republican and
early Imperial jurists, but we are not very well informed of the details because
the problems in question had largely been settled by the time of our first
extant legal textbook, Gaius' 'Institutes', which dates from the mid-second
century A. D. 5 9 . While philosophical influence is evident in the form of this
59
(1946), pp. 119 — 23, and especially the important paper by STEIN (1972B); and now the
thorough reviews of DETLEF LIEBS, Rechtsschulen und Rechtsunterricht im Prinzipat, in:
H. TEMPORINI (ed.), ANRW, vol. 11.15, B e r l i n - N e w York, 1976, pp. 1 9 7 - 2 8 6 and of
G. L. FALCHI, Le controversie tra Sabiniani e Proculiani, Milano, 1981.
On Gaius' work, see SCHULZ (1946), pp. 159 — 171; G. DIOSDI, Gaius, der Rechtsgelehrte,
in: H. TEMPORINI (ed.), ANRW, vol. 11.15, B e r l i n - N e w York, 1976, pp. 6 0 5 - 6 3 1 , with
full b i b l i o g r a p h y b y ROLAND WITTMANN. A s BIRKS a n d M C L E O D ( 1 9 8 7 ) p . 1 6 , s a y " G a i u s
was the inventor of the institutional scheme and of the genre itself. His 'Institutes',
written about A D 161 ... were the first of their kind." There is no known precedent to
his division of the civil law into persons, things and actions, a division which then
became standard, though re-interpreted by the compilers of Justinian's 'Institutes': on
the development of the institutional system prior to Gaius, see STEIN (1983) 154 — 163
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codification of the civil law, it does not appear to have extended to the
substance of juristic doctrine. It is in Cicero's second proposal, which in its
Roman context is highly original, to base the civil law on a theory of
natural law, that he undertakes to make legal doctrine conform to a specific
philosophical position on human nature. His attempt in De Legibus I to
reformulate Stoic doctrine on natural law so as to make it practically useful,
and to reformulate the ius civile so as to bring it into conformity with this
modified Stoic theory, is an ambitious project that well merits attention in its
own right 60 . But there is no evidence that any jurist, during the centuries in
which Roman jurisprudence maintained an unbroken tradition, ever undertook
to revise the civil law along the lines proposed by Cicero. His project in the
"De Legibus' is entirely a novel one.
By the late Republican period, the codification of the civil law had
become a matter of pressing political concern and controversy61. When in 67
B. C. the Tribune C. Cornelius secured passage of a law that required praetors
not to deviate from the edict published at the outset of their term, thereby
intending to curb widespread corruption in the application of the edict (Cassius
Dio, Hist. Rom. 36.40.1 — 2; Cicero, In Verrem 1.46.229), he was brought up
on charges of maiestas in 65 B. C. and defended by Cicero 62 . This episode is
emblematic of the high political stakes involved in legal reform. We are told
that Pompey wished to reform the laws (leges redigere), no doubt during his
sole consulship of 52 B. C. when he reformed the procedures for some criminal
trials, but that he did not implement his plans through fear of his enemies63.
60
(but his claim that Gaius, as a Sabinian, is likely to have been influenced by Stoicism,
rests on mere conjecture).
There has been surprisingly little recent work on 'De Legibus', despite the renaissance
of interest in Hellenistic philosophy; but, for representative work, see JAMES E. HOLTON,
Marcus Tullius Cicero, in: L. STRAUSS and J. CROPSEY (eds.), History of Political Philosophy, C h i c a g o , 1 9 7 2 , p p . 1 3 0 - 1 5 0 ; RAWSON ( 1 9 7 3 ) , p p . 3 3 4 - 5 6 ; W . NICGORSKI, C i c e r o
and the Rebirth of Political Philosophy, Political Science Reviewer 8 (1978) 6 3 - 1 0 1 ;
HORST-THEODOR JOHANN, Gerechtigkeit und Nutzen. Studien zur ciceronischen und
hellenistischen Naturrechts- und Staatslehre, Heidelberg, 1981; J. SPRUTE, Rechts- und
Staatsphilosophie bei Cicero, Phronesis 28 (1983) 150 - 1 7 6 ; M. Ducos, Les Romains et
la Loi. Recherches sur les rapports de la philosophie grecque et de la tradition romaine
à la fin de la République, Paris, 1984, pp. 213 - 263; SETH BENARDETE, Cicero's De Legibus I. Its P l an a n d I n t e n t i o n , A J P 1 0 8 ( 1 9 8 7 ) 2 9 6 - 3 0 9 .
61
62
The political aspect of this concern with codification should be emphasized: it does not
appear that any of the jurisconsults expressed such a concern. It is sometimes claimed
that Caesar intended to entrust his codification to Ofilius (see below), but the grounds
are not secure.
On the lex Cornelia de iurisdictione and the political controversy it provoked, see
A. METRO, La lex Cornelia de iurisdictione alia luce di Dio Cass. 36, 40, 1 — 2, Iura 20
( 1 9 6 9 ) 5 0 0 - 5 2 4 ; M . GRIFFIN, T h e T r i b u n e C . C o r n e l i u s , J R S 6 3 ( 1 9 7 3 ) 1 9 6 - 2 1 3 ; A . A .
SCHILLER, Roman Law. Mechanisms of Development, New York, 1978, pp. 4 1 2 - 4 1 3 ;
FRIER ( 1 9 8 5 ) , p p . 7 3 - 7 6 , 2 6 1 - 2 6 2 .
63
See Isidore, Etym. 5 . 1 . 5 : leges autern redigere in libris primus consul Pompeius instituere
voluit, sed non perseveravit obtrectatorum
metu; for the plan and its opposition:
E. PÔLAY, Der Kodifikationsplan des Pompeius, Acta Antiqua 13 (1965) 85 - 95; BAUMAN
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PAUL A. VANDER WAERDT
Similarly, Suetonius informs us that Julius Caesar planned to reduce the ius
civile to definite limit, and to select out of the vast number of laws the best
and most necessary and to publish them in brief compass 6 4 . This project was
cut short by his death, but many factors contributed to engender a genuine
need for codification of the civil law. This law had grown up over the centuries
from a variety of sources — not only statues, decrees of the senate, judicial
decisions, the responsa of the jurisconsults, and magistrates' edicts, but also
custom and aequitas65. T h e late Republican period witnessed a great increase
in legislation in an effort to settle growing political problems 6 6 . T h e proliferation of juristic responsa also made it nearly impossible to achieve a consensus
on disputed points of law. T h e sheer bulk alone of the ius civile is likely to
have made its assimilation and application difficult. Even a document intended
for public display, like the annual praetor's edict, betrayed "a bewildering
conglomeration of causes and forms of action" 6 7 . As we saw above, the
codification of the law was only in its infancy during this period. Thus Cicero
is able to claim as an innovation a simple division of subject matter which he
introduced into his edict as proconsul of Cilicia in 51 B. C. 6 8
It appears that the first objective of Cicero's program in reforming the
ius civile was to codify it according to dialectical principles which would make
it more easily understood. Unfortunately, we possess only a single fragment
(ap. Aulus Gellius, Noct. Att. 1.22.7) of Cicero's work on this subject, °De
M
(1983), pp. 8 1 - 8 5 . Note also Pompey's request that his friend Varro write a commentarium isagogicum on constitutional law, a work which did not survive his lifetime: Aulus
Gellius, Noct. Att. 14.7.1.
Isidore, ibid.: Deinde Caesar coepit id facere, sed ante interfectus erat-, Suetonius, Jul.
Caes. 44.2: ius civile ad certum modum redigere atque ex immensa diffusaque legurn
copia optima quaeque et necessaria in paucissimos conferre libros. For comment on
immensa, cf. Cic., Balb. 21 and Livy 3.34.6. On Cicero's program: E. POLAY, Der
Kodifizierungsplan des Iulius Caesar, Iura 16 (1965) 2 7 - 5 1 ; D'IPPOLITO (1978), pp. 9 3 116.
65
So Cicero suggests in Top. 28: si quis ius civile dicat esse quod in legibus, senatus
consultis, rebus iudicatis, iuris peritorum auctoritate, edictis magistratuum, more aequitate consistat. For the origin of ius civile, which grew out of interpretation of the Twelve
Tables, see Pomponius' account in Dig. 1.2.2.5 — 6. Custom and equity, which Cicero
may include because they are grounds to which the advocate may appeal in arguing his
case, are omitted in the list of the sources of civil law given by Gaius, Inst. 1 . 2 - 7 ; cf.
the commentary of DE ZULUETA (1953), part II, pp. 13 — 23. On the problems involved
in appeal to custom in legal disputes, see the texts collected in Dig. 1.3.32 — 40. As to
the status of equity in civil law, see FRIER (1985), pp. 120—123.
66
See Ducos (1984), pp. 1 5 4 - 1 7 0 , who discusses the transformation in the form of lawmaking during this period; also E. GRUEN, The Last Generation of the Roman Republic,
Berkeley, 1974, pp. 210 - 260.
FRIER (1985), p. 42; for the development of the edict during the late Republic, see
67
WATSON ( 1 9 7 4 ) , p p . 3 1 - 6 2 .
68
Ad Att. 6.1.15; see A. J. MARSHALL, The Structure of Cicero's Edict, AJP 85 (1964)
1 8 5 - 1 9 1 ; G. PUGLIESE, Riflessioni sull'editto di Cicerone in Cilicia, in: Synteleia Vincenzo Arangio-Ruiz, a cura di A. GUARINO &C L. LABRUNA ( = Bibl. di Labeo, vol. 2),
Naples, 1964, vol. II, pp. 9 7 2 - 9 8 6 .
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PHILOSOPHICAL INFLUENCE ON ROMAN JURISPRUDENCE?
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lure Civili in Artem Redigendo'69. But presumably its program accords with
that which Cicero attributes to Crassus for a work that will organize the ius
civile according to the principles of genera, species and definition offered by
the philosophers as a way of binding together a subject previously disconnected
(De Orat. 1.190):
Si enitn aut mihi facere licuerit, quod iamdiu cogito, aut
me impedito, occuparit, aut mortuo effecerit, ut primum
in genera digerat, quae perpauca sunt; deinde eorum
quaedam membra dispertiat; turn propriam cuiusque
declaret; perfectam artem iuris civilis habebitis, magis
uberem, quam difficilem atque
obscuram.
alius quispiam,
omne ius civile
generum quasi
vim definitione
magnam atque
The paucity of our sources for the late Republican and early Imperial period
makes it difficult to know in detail how this plan was received. There were,
as we saw above, sustained debates concerning the organization of the ius
civile into genera and species70. To the extent that Cicero's program influenced
late Republican and early Imperial jurists71, we can safely say that Greek
dialectical theory actually helped to shape the development of Roman jurisprudence. But this evidence gives us no reason to suppose that Stoic philosophy
exercised any substantive influence on jurisprudential doctrine, however much
it may have helped to shape its form.
In 'De Legibus' Cicero sets out an ambitious program to place Roman
ius civile on an entirely new footing. In response to Atticus' challenge to
expound it more precisely than others, Cicero criticizes the eminent jurisconsults for having devoted themselves to relatively unimportant matters, despite
their great claims: since their study of the civil law extends only so far as to
be useful to the people, they have not developed their implicit understanding
of universal ius72. When Cicero enquires of Atticus whether he wants a
69
70
This work is not mentioned in Cicero's review of his corpus in De Div. 2.2 — 4; perhaps
he never completed it, if we take Quintilian's componere aliqua [sc. scientia iuris] de eo
coeperat (Inst. 12.3.10) as a reference to it. For this work and its reception, see F. BONA,
L'ideale retorico ciceroniano ed il 'ius civile in artem redigere', SDHI 46 (1980) 2 8 2 382; H. J. METTE, Ius civile in artem redactum, Gottingen, 1954.
For an exhaustive study of this problem, see M. TALAMANACA, Lo schema 'genus-species'
nelle sistematiche dei giuristi romani, in: Colloquio italo-francese. La filosofia greca e il
diritto romano ( = Accademia Nazionale dei Lincei, vol. 221), Roma, 1977, vol.11,
pp. 1 - 2 9 0 .
71
For the jurists' knowledge of Cicero, see D. NORR, Cicero-Zitate bei den klassischen
Juristen, Ciceroniana N. S. 3 (1978) l l l f f . An example is discussed below, p. 4883.
Cicero certainly importantly influenced legal history: Pomponius cites him explicitly (ap.
Dig. 1 . 2 . 2 . 4 0 ) .
72
Does Cicero here mean to use ius universum to refer to ius gentium? That is the
assumption of some commentators (so, e. g., L. P. RENTER'S commentary, Amsterdam,
1972, pp. 69 — 70), but it seems clear from 2.8 (legem neque ... populorum, sed aeternum
quiddam, quod universum mundum regeret imperandi prohibendique sapientia) that
Cicero has the Stoic community of gods and human beings in mind. At De Off. 3.23
and 69 he does oppose ius gentium to ius civile, but the point of contrast in De Leg.
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PAUL A. VANDER WAERDT
treatment of the civil law understood in the traditional sense, e. g., the law of
eaves and house-walls, he receives a second challenge: to expound, in imitation
of Plato's 'Laws', the laws appropriate to the best regime he presented in
'De República' 73 . This program importantly shapes Cicero's treatment of the
civil law. Not only does it lead him to seek the sources of the discipline in
philosophy, rather than in the praetor's edict or the Twelve Tables (1.17), as
traditionally assumed, but it imposes a specific philosophical model for his
project 74 . As Cicero at once explains, this project covers the whole subject of
universal ius and lex in such a way as to confine the civil law to a small and
narrow place; it involves considering (i) the nature of ius, which must be
sought in the nature of man, (ii) the leges by which communities should be
governed, (iii) the iura and decrees of peoples that have already been put into
writing - among which, Cicero adds, Roman civil law will find its place. To
illustrate Cicero's program, we will focus upon (i).
Cicero opens his account with the following definition, derived from his
"most learned" predecessors (1.18 — 19):
Igitur doctissimis
viris proficisci placuit a lege, baud scio an recte, si
modo, ut idem definiunt, lex est ratio summa Ínsita in natura, quae iubet
ea, quae facienda sunt, prohibetque
contraria, eadem ratio cum est in
hominis mente confirmata et confecta, lex est. itaque arbitrantur
prudentiam esse legem, cuius ea vis sit, ut recte facere iubeat, vetet delinquere ...
For present purposes, this passage invites comment in three respects.
First, Cicero here importantly departs from the jurists by reversing their
usage of lex and ius:75 he employs lex as the generic term to encompass both
positive and natural law, and ius as the subordinate part of lex enforced by
the courts 76 .
Second, while one might expect Cicero to offer a Platonic account of
natural justice in imitation of Plato's program in the 'Laws', he clearly has
chosen instead to adapt the Stoics' theory of natural law. We can isolate his
73
1.14 is to bring out what the jurisconsults have ignored, and that is Cicero's own project
of placing the ius civile on the foundation of a theory of natural law.
For Cicero's explicit references to Plato in *De Legibus', see 1.15, 55; 2.6, 14, 16, 38, 41,
45, 67, 69; 3 . 1 - 5 ,
74
75
76
14, 32.
The importance of this model in shaping Cicero's project in De Legibus' has not been
properly studied. BENARDETE (1987) 2 9 5 - 3 0 9 , a stimulating but obscure paper, treats
Cicero's use of Plato as a source, but does not consider how the model of Plato's
'Republic' and 'Laws' shapes Cicero's treatment of civil law.
The difference in Cicero's usage of ius civile and that of the jurists is well stated by
SCHULZ ( 1 9 4 6 ) , p. 7 2 : " . . . t o the lawyer ius civile meant ius inter cives and was thus
equivalent to Roman ius privatum, in contrast to ius publicum which denoted the law
respecting the res publica, including that of its relation with cives. This is the only sense
in which ius civile is used by republican lawyers... Thus Cicero's usage of ius civile is
quite alien to that of the lawyers; nor is it uniform, because he writes now as a Roman
and now as a translator of Greek terms." See further Ducos (1984), pp. 221 — 224.
As Cicero goes on to explain, a lege ducendum est iuris exordium (De Leg. 1 . 1 9 ) .
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source in the definition quoted above by comparing the formula that law is
right reason implanted in nature with doxographical sources77 which clearly
go back to Zeno (cf. Cic., De Nat. Deorum 1.36) and Chrysippus (SVF 3.314,
D.L. 7.88). Thus "natural law", which the early Stoics call koinos nomos, is
right reason as applied to conduct, enjoining what nature approves and
forbidding the opposite. Cicero has chosen to draw upon this Stoic account
in order to present the first part of his case, (i) that justice and law are
founded in nature. But the fact that Cicero and the Stoics both employ this
formula does not entail that they understand it in the same way.
This brings us to the third consideration, Cicero's source in De Legibus I.
There is extensive evidence that he is adapting an account based upon
Antiochus78. Cicero takes his position on the relation between the Stoics and
the Old Academics as assumed throughout the book, and he marks off his
account of natural law with references to Antiochus at the beginning79 and
end (1.36-39), where he appeals for the approval of all who accept that what
is right and honorable is to be desired for its own sake 80 . Second, Cicero
praises Antiochus highly and by name (1.54) in discussing how to reconcile
the Old Academy and Zeno along lines advocated by Antiochus. Since Cicero
presupposes Antiochus' doctrine on this question throughout De Legibus I,
this passage provides a clear source citation. Finally, Cicero employs certain
distinctive Antiochean doctrines without advancing anything contrary to his
position 81 , and the fact that he adopts this Antiochean perspective without
further comment suggests that his debt to him is pervasive.
Now why does Cicero have recourse to an Antiochean rather than
Platonic account in order to establish his thesis that law and justice are
77
78
79
80
81
See Arius 9 6 . 1 0 - 1 2 , 1 0 2 . 5 - 6 ; D . L . 7.88; Alexander, SVF 2.103.30 - 34; Philo, SVF
3.323; Clement, SVF 3.332. For Cicero's account of law as the mind and reason of the
sage {ea est enim naturae vis, ea mens ratioque prudentis, ea iuris atque iniuriae regula,
1.19; cf. 2.8), compare the conclusion of Plutarch's polemic, De Stoic. Rep. 1038 a.
This is not a novel view, though in my opinion the evidence that supports it is stronger
than has been recognized: see H. HUNT, The Humanism of Cicero, Melbourne, 1954,
pp. 1 7 - 1 8 , 8 9 - 1 0 2 ; R. A. HORSLEY, The Law of Nature in Philo and Cicero, Harvard
Theological Review 71 (1978) 3 5 - 5 9 .
The legitimizing reference to viri doctissimi (1.18) alludes to Antiochus' interpretation
of the unity of doctrine of "the ancients". Cicero says later that there has been much
controversy concerning the highest good inter doctissimos (1.52), and the context
indicates unequivocally that the disputants in question are the Old Academics and Zeno
(cf. DeFin. 5.33, 1 5 - 2 3 ; Acad. 2.14, 1 2 9 - 3 7 for this controversy); and 2 . 8 - 1 0 , where
Cicero's reference to sapientissimi appears to cite the same source as 1.18 (so also
P. BOYANCE, Ciceron et les semailles d'ames du Timee in: ID., Etudes sur l'humanisme
Ciceronien [ = Coll. Latomus 121], Brussells, 1970, pp. 294 - 300 and HORSLEY [1978]
45). At De Fin. 1.11 Cicero uses doctissimi more broadly to include the Epicureans.
Note Cicero's reference in De Rep. 1.36 to his debt to those philosophers (contrasted
with the veteres) who have built workshops for the production of wisdom (qui quasi
officinas instruxerunt sapientiae) and who argue their case in a clearly articulated
fashion — a clear indication that Cicero is following a Stoicizing source.
See below, p. 4877 for an example; HORSLEY (1978) for others.
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PAUL A. VANDER WAERDT
founded in nature? N o doubt Antiochus' view that all the natural right
theorists shared a c o m m o n position appealed strongly to Cicero 8 2 , whose
objection to the Epicureans and Academic skeptics is that their views are
politically corrosive and contrary to Cicero's stated agenda of promoting the
firm foundation of regimes (1.37 — 3 9 ) 8 3 . F o r this purpose he seeks as wide
approval for his view as possible — in this case, all who fall into Antiochus'
class of "the ancients". Cicero apparently chose to follow his account of
natural law because it asserted more powerfully than any other natural right
teaching the fundamental harmony between man's nature and civil society,
thus offering a way of reconciling the divergent strands within the natural
right tradition and so of presenting a united front against conventionalism
and skepticism.
T h e Antiochean teaching differs from the original, early Stoic theory of
natural law most importantly in its reinterpretation of the formula that natural
law is right reason as applied to conduct: put simply, natural law now enjoins
kathekonta
rather than (as in the original theory) katorthomataM.
In other
words, natural law is now the prescription not strictly of right reason, which
only the sage possesses, but of the rationality in which all human beings
share 8 5 . Antiochus thus relaxes the early Stoics' requirement that the kathekonta prescribed by natural law be katorthomata,
i. e., that they be performed
by an agent whose disposition is perfectly rational and consistent. Antiochus
takes this step at least in part because of strong objections t o the early Stoics'
monistic psychology 8 6 . This reinterpretation of the early Stoics' formula greatly
82
83
84
85
86
For a stimulating discussion of the classical natural right tradition, see L. STRAUSS,
Natural Right and History, Chicago, 1953, pp. 120 - 1 6 4 .
Cicero's polemic against Epicurus rests upon a serious misconception of his position on
justice, as I have tried to show in: The Justice of the Epicurean Wise Man, CQ N. S. 37
(1987) 402 — 422. Cicero's claim that skepticism is politically dangerous may well recall
the reception at Rome of Carneades' arguments for and against justice on the occasion
of his embassy to Rome in 155 B.C., a celebrated episode which Cicero had already
related at length in De Rep. 3. Cato denounced the visiting philosophers as a threat to
law-abidingness among the youth (Plut., Cato Maior 22), and this concern is echoed in
De Rep. 3.30 ( = Non., p. 323.18, 324.15). For a recent discussion of Cicero's position on
Academic skepticism, see L. TARAN, Cicero's Attitude towards Stoicism and Skepticism in
the De natura deorum, in: Florilegium Columbianum. Essays in Honor of Paul Oskar
Kristeller, New York, 1987, pp. 1 - 2 2 .
For a full defence of the position here sketched, see my discussion in: The Theory of
Natural Law in Antiquity.
Although Cicero adheres to early Stoic formulae in his definitions of natural law in
'De Legibus', identifying it with the sage's right reason (e.g., 1.18 — 19: ea est enim
naturae vis, ea mens ratioque prudentis, ea iuris atque iniuriae regula; cf. 2.8: est enim
ratio mensque sapientis ad iubendum et ad deterrendum idonea), he then argues (1.29 —
30) that there is no difference in kind between human beings, so collapsing the difference
between the sage's rational disposition and that of everyone else on which the early
Stoic position crucially relies; see the discussion below.
See esp. De Fin. 4.27 - 29. In his arguments against Chrysippean psychology, Antiochus
no doubt found an ally in the attempts of Posidonius and Panaetius to incorporate many
Platonic and Peripatetic doctrines into Stoic ethics (see I. G. KIDD, Posidonius on
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broadens the provenance of natural law, which now becomes a standard of
conduct attainable by all mature human beings (unless grossly corrupted), not
just by the few (if any) wise who possess certain knowledge of good and evil.
A simple technical modification, though one motivated by fundamental
revisions in Stoic psychology, thus radically changes the orientation of the
theory of natural law. Most importantly, this theory now becomes a practical
political doctrine of great philosophical resources: whereas natural law, as
originally conceived, presupposed an unbridgeable gulf between man's natural
community, the just polity to which only sages may belong, and all existing
regimes (De Leg. 1.22 — 25), Cicero now revises this doctrine in such a way
that all human beings now participate in this community. So modified, the
theory asserts more powerfully than any other natural right teaching the
harmony between human nature and civil society87. The Cynic elements so
prominent in the early theory are banished in its revised form88. This revised
theory of natural law proved so powerful and won such wide acceptance as
to obscure entirely the original form and motivation of the theory of natural
law.
Reading De Legibus I, then, it is clear we need to consider its argument,
like that of most of Cicero's philosophical writings, on two distinct levels: (i)
we need constantly to bear in mind the original form of the theory, in order
to assess whether his account of it is original or unorthodox; and (ii) we need
to examine the development of Cicero's argument in its own terms, considering
the connections he sees between different stages in the argument, but remembering that he is capable of welding together arguments of diverse provenance
in support of a philosophical intention quite different from that of his sources.
In this case, I suggest, Cicero (or his source) is attempting to graft the
thesis that justice and natural law are a common possession of all human
beings onto the early Stoic account of the community of sages who possess
right reason and therefore live infallibly in accordance with the koinos nomos.
Two considerations prove that, for the early Stoics, the sage alone can reliably
87
88
320
Emotions, in: A. A. LONG [ed.], Problems in Stoicism, London, 1971, pp. 200 — 212; P. A.
VANDER WAERDT, Peripatetic Soul-Division, Posidonius and Middle Platonic Moral
Psychology, GRBS 26 [1985] 373 - 94) — a development, it needs to be recognized, that
goes back to Diogenes of Babylon, the first Stoic scholarch to have adopted a Platonic
model of the soul: see Philodemus, DeMusica IV, cols. 56*, 57*.40 - 41, 69".3, 74* (in
the edition of DANIEL DELATTRE, Philodeme, De la musique, livre IV, colonnes 40* a
109*, CErc 19 [1989] 4 9 - 1 4 3 ) .
The crucial modifications in the scope and intention of the scholarchs' original position
appear to have been introduced by Diogenes of Babylon, as I have argued in 'Politics
and Philosophy in Stoicism'.
The Cynic features of Zeno's political thought are well discussed by J. M. RIST, Stoic
Philosophy, Cambridge, 1969, pp. 54 — 80; see also J. MANSFELD, Diogenes Laertius on
Stoic Philosophy, in: Diogene Laerzio Storico del Penserio Antico, Atti del Convegno
internazionale tenutosi a Napoli e Amalfi dal 30 sett, al 3 ott. 1985, Elenchos 7 (1986)
3 2 8 - 3 5 1 ; and now C. E. MANNING, School Philosophy and Popular Philosophy in the
Roman Empire, forthcoming in: W. HAASE (ed.), ANRW, vol. II.36.7, below pp. 4 9 9 5 5026, who well surveys the later history of the symbiosis between Stoicism and Cynicism.
ANRW II 36.7
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apprehend and follow natural law: first, this law prescribes katorthomata, of
which only the sage is capable 89 ; and second, the citizenship of the best regime
of Zeno's 'Republic', which exemplifies the way of life that accords with the
koinos nomos (Plut., De Virt. Alex. 329 a — b), is explicitly restricted to sages 90 .
These considerations pose a serious obstacle for anyone who believes that
Cicero is reproducing an early Stoic position in De Legibus I. Instead, I suggest,
he has adapted a series of orthodox Stoic arguments to support the unorthodox
thesis that all human beings are capable of living according to natural law 9 1 .
And Cicero must have recognized that this thesis represents an important
departure from the early Stoic position, for in his critique of Stoic ethics in
De Finibus IV (written from an Antiochean perspective), he reports that Zeno
held that human beings differ with respect to their capacity to attain virtue 92 .
There is good reason to suppose that this revision of the early scholarchs'
position goes back at least to Antiochus, who after all could plausibly maintain
his thesis about the unity of doctrine of the ancients, and about the agreement
of the Stoic theory of natural law with the position of Plato and Aristotle,
only if he extended the provenance of natural law to encompass all mature
human beings.
The thesis that Cicero is attempting to extend the provenance of natural
law in a novel way helps to explain some puzzling features of the argument of
De Legibus I. In fact, as I shall try to show, he has recourse to an argumentum e
consensu omnium, not so employed by the early scholarchs, in order to
support his thesis. If one examines Cicero's argument carefully, it is in fact
remarkable how tenuous his case is for the proposition that justice and law
have been given by nature to all human beings (1.33). Cicero repeatedly
appeals to early Stoic formulations involving s a g e s , but attempts to draw
from them conclusions about ordinary human beings. The sole argument he
offers that attempts to bridge this gap, I suggest, belongs to Antiochus.
In Cicero's argument the following points deserve emphasis: he first (i)
defines lex as the highest reason, fully developed in the mind of the sage
85
90
91
92
See above, note 15.
Zeno states that only sages are citizens, and that there should be a community of women
among sages (D.L. 7.33, 131); his best regime is one whose citizenship is determined
solely by rationality: only the virtuous may belong to it, and the sole basis for ties of
kinship, friendship and so forth is virtue (D.L. 7 . 1 2 2 - 1 2 4 ) . The apparent problem
posed by Plut., De Virt. Alex. 329 a — b (pantas anthropous) is disarmed by O. MURRAY,
Review of: H. C. BALDRY, The Unity of Mankind in Greek Thought, Cambridge, 1965,
CR 80 (1966) 369. See further VANDER WAERDT (1994) for an interpretation of Zeno's
motive in depicting a community in which sagehood is the criterion for citizenship.
This claim, implicit throughout Cicero's argument, is made explicit, e.g., at 1.30: nec
est quisquam gentis ullius, qui ducem nactus ad virtutem pervenire non possit. On
human moral equality, see also Hortensius, frs. 53, 89, ed. A. GRILLI (Milano, 1962).
De Fin. 4.56: referring to Zeno as tuus ille Poertulus, Cicero reports that he distinguished
between the capacity of Plato and Dionysus the tyrant to attain wisdom, claiming that
the former, since he has hopes of attaining it, had better live, while the latter would
best die; Zeno then continues: iarn insipientes alios ita esse ut nullo modo ad sapientiam
possent pervenire, alios qui possent, si id egissent, sapientiam consequi.
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(1.18 —19); then (ii) he argues that since human beings share ratio in common
with the gods, they also have recta ratio, hence lex and ius in common (1.2223); (iii) that there is a similitudo between man and god founded in the
perfection of the former's reason (1.25); (iv) that there is also a societas among
human beings founded upon their common possession of reason (1.28 — 30)
or recte vivendi ratio (1.32); finally, (v) Cicero illustrates the disposition
humans should adopt towards one another by the friendship of sages (1.34).
If one compares these arguments with their early Stoic parallels, it becomes
clear that Cicero is adapting them to support a quite different conclusion than
the early scholarchs would accept.
We have already seen that (i) reproduces an early Stoic formula, though
Cicero construes it in such a way as to collapse their distinction between the
rationality of the sage and that of all other human beings. As for (ii), its
argument is obscure, but clearly at odds with the early scholarchs' doctrine.
When they speak of koinos nomos, they cannot mean common in the sense
of actually shared by all human beings, for they identify this common law
with the sage's right reason (e.g. D. L. 7.87 — 88), and the sage, after all, is as
rare as the Ethiopians' phoenix, with only one or two known examples 93 .
Thus Cicero (or his source) has reinterpreted koinos so as to mean commonly
possessed by all human beings, despite the incompatibility of this conclusion
with its early Stoic model. In the case of (iii), Cicero once again appeals to
an early Stoic argument concerning sages in order to secure a conclusion that
contradicts the original doctrine 94 . Finally, Cicero's argument (v) that sages
come to love one another no less than themselves cannot, as the early Stoics
understand this doctrine 95 , serve to illustrate the societas of ordinary human
beings, given the claim, attributed to Zeno's 'Republic' (D.L. 7.32 — 33), that
all who are not sages are enemies. In each case, then, Cicero adapts an early
Stoic doctrine to support the novel thesis that all mature human beings fall
within the provenance of natural law. If we now ask how Cicero moves to
include the latter in the natural societas of gods and human beings96, we can
« Cf. Alexander, DeFato 1 9 9 . 1 4 - 2 2 = SVF 3.658; cf. Plut., De Stoic. Rep. 1048 e;
De Comm. Not. 1976 b — c; Sext. Emp., Adv. Math. 7.432 - 435; Diogenianus ap. Eusebius, Praep. Evan. 6.264 b = SVF 3.668; Cic., De Nat. Deorum 3.79.
94
The problem of the origin of the doctrine of social oikeiosis is a complex one (see below,
note 164), but it is clear that, in the case of the early Stoics, the natural fellowship
among human beings does not rely on man's rationality, but on personal oikeiosis, the
striving for self-preservation, which he possesses from birth (see e.g. D.L. 7 . 8 5 - 8 6 ) .
95
We are poorly informed about their views on friendship, but note Plut., De Comm. Not.
1068 f—1069a, on the benefits sages may confer upon one another even when they are
not together; see also Zeno ap. Clem. Alex., Strom. 5.14 = SVF 1.223; Arius 108.5 ff.
= SVF 3.630; Cic., De Nat. Deorum 1.121; Epictetus, Diss. 2.22.
96
For the Stoic doctrine of the natural community of gods and human beings, in which the
latter share by virtue of their rationality, see esp. Chrysippus, De Nat. 3 ap. Philodemus,
DePietate, col. 7 . 2 1 - 2 7 (text in A. HENRICHS, Die Kritik der stoischen Theologie im
P. Here. 1428, CErc4 [1974] 18); Diogenes of Babylon, SVF 3.117 (on pp. 2 4 1 - 2 4 2 ) , in
the new text of O B B I N K and V A N D E R W A E R D T (1991) 366 - 67; Arius Didymus ap.
Eusebius, Praep. Evan. 15.15.3 — 5 = SVF 2.528 and ap. Stobaeus, Eclog. 2.103.11 — 23,
320»
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PAUL A. VANDER WAERDT
see that his argument is quite unorthodox, and apparently derived from
Antiochus.
In support of the proposition that all human beings share in recta ratio,
Cicero n o w introduces a consensus
omnium argument (1.24) intended to
establish the divine origin of all human beings, and so apparently to explain
why everyone is linked together in societas with god. This is the first step in
his argument that what all human beings accept belongs to natural law 9 7 . Yet
here and elsewhere (e.g., D e N a t . D e o r u m 1.43 — 44) Cicero employs the
consensus omnium argument in a way that suggests confusion with the much
different doctrine of koinai ennoiai: while these are often supposed to be
c o m m o n to all mankind 9 8 , there is in fact no example a m o n g the early
scholarchs of a koine ennoia which necessarily is shared by all mankind (or
of an argument which relies upon consensus omnium to establish that an
ennoia is koine), but many counter-examples of koinai ennoiai which are by
no means c o m m o n opinion 9 9 . We have already encountered an example in the
case of koinos nomos, which is c o m m o n only to the sage. W h e n Cicero claims,
then, that all human beings share in the rational community of gods and
human beings, he certainly is departing from early Stoicism. Similarly, his
panegyric on the gifts of nature to man (1.25 — 27) develops the theme of
man's similitudo to god, which depends upon the perfection of nature up to
her highest point (1.25): for the early Stoics, of course, only the sage attains
this kind of perfection 1 0 0 . Up to this point in the argument, then, Cicero has
97
98
99
100
quoting Cleanthes; Sen., De Otio 4.1; Cic., De Nat. Deorum 2.78-79, 153-155; Plut.,
De Comm. Not. 1065 f (cf. H. CHERNISS adloc.); Dio Chrysostom, Orat. 36.20 - 25;
Marcus Aurelius, Med., e.g., 8.2.
Cf. Tusc. Disp. 1.30, where Cicero explicitly connects the popular belief in the divine
with natural law: omnes tamen esse vim et naturam divinam arbitrantur, nec vero id
collocutio hominum aut consensus efficit, non institutis opinio est confirmata, non
legibus, omni autem in re consensio omnium gentium lex naturae putanda ist.
So, e. g., A. A. LONG and D. N. SEDLEY, The Hellenistic Philosophers, Cambridge, 1987,
vol. I, pp. 250 — 253; R. B. TODD, The Stoic Common Notions. A Reexamination and
Interpretation, SO 48 (1973) 47 - 75.
I rely here on DIRK OBBINK 'What All Men Believe - Must be True'. Common
Conceptions and consensio omnium in Aristotle and Hellenistic Philosophy, Oxford
Studies in Ancient Philosophy 10 (1992) 189 — 231. OBBINK argues that the confusion
between koinai ennoiai and the argumentum e consensu omnium can be traced back at
least to Antiochus' attempt to reconcile the positions of the Old and New Academies,
and our analysis of De Legibus I provides strong support for this argument. If OBBINK
is correct, any argument from consensus omnium in our later testimony for the early
Stoics could potentially represent a misunderstood appeal to their doctrine of koinai
ennoiai.
It is clear that the principle of equality to which Cicero here refers involves a purely
rational attitude towards others. Cicero does not explain what a "purely rational"
attitude is, because he is trying systematically to blur the difference between the sage
and the ordinary person. But it is easier to see why a Stoic will treat the interests of
another exactly as his own when one considers the final stages in his rational maturation
as set out in De Fin. 3.16 — 25, when all of his non-rational impulses have been eradicated
or transformed into rational ones and his chief concern is to uphold the rational order
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adapted a series of orthodox Stoic arguments to secure quite unorthodox
conclusions. By the point at which Atticus intervenes (1.28), the reader will
be inclined to think it unproblematical to suppose that all human beings share
in the rational community of gods and human beings, even though this is a
significant departure from early Stoic doctrine for which Cicero has not argued
directly.
Let us turn, then, to consider point (iv), the argument whereby Cicero
attempts to show that there is no difference in kind among human beings
with respect to their capacity to attain virtue. In support of the proposition
that ius is constituted from nature, Cicero offers the following argument
(1.28-30):
id iam patebit, si hominum inter ipsos societatem
coniunctionemque
perspexeris. nihil est enim ununt uni tam simile, tam par, quam omnes
inter nosmet ipsos sumus. quodsi depravatio consuetudinem, si opinionum
vanitas non inbecillitatem animorum torqueret et flecteret quocumque
coepisset, sui nemo ipse tam similis esset quam omnes essent omnium,
itaque, quaecumque est hominis definitio, una in omnis valet; quod
argumenti satis est nullam dissimilitudinem esse in genere; quae si esset,
non una omnis definitio contineret; etenim ratio, qua una praestamus
beluis, per quam coniectura valemus, argumentamur, refellimus, disserimus, conficimus aliquid, concludimus, certe est communis, doctrina
differens, discendi quidem facúltate par. nam et sensibus eadem omnia
conprehenduntur, et ea, quae movent sensus, itidem movent omnium,
quaeque in animis inprimuntur, de quibus ante dixi, incboatae intellegentiae, similiter in omnibus inprimuntur, interpresque mentis oratio verbis
discrepat sententiis congruens; nec est quisquam gentis ullius, qui ducem
nactus ad virtutem pervenire non possit.
This text provides Cicero's principal argument in support of the proposition,
denied by Zeno (ap. Cic., De Fin. 4.56), that all human beings have a comparable natural capacity to attain virtue. The argument falls into several parts
each of which represents a significant departure from early Stoic usage. As
for the first, Cicero appears to take his account of the fellowship and union
among human beings directly from Antiochus, whose position is prominently
of nature as a whole: such a human being will have no irrational inclination to value
his own interests more highly than those of others, because his chief concern is to follow
the rational course of action in every case; see M. FREDE, The Stoic Doctrine of the
Affections of the Soul, in: G. STRIKER and M. SCHOFIELD (eds.), The Norms of Nature.
Studies in Hellenistic Ethics, Cambridge, 1986, pp. 93 —110. This consideration may help
to explain Cicero's vagueness about the specific kind of equality in question: if Cicero
is drawing upon early Stoic doctrine about the sage's perfectly rational disposition, as
I suggest, he will have avoided explaining the kind of equality he means because this
cannot be codified in a set of precepts.
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PAUL A. VANDER WAERDT
recounted in De Finibus V 101 . Secondly, the conclusion Cicero draws from the
fact that there is a single definition of man 102 , namely that there is no difference
in kind among human beings, similarly departs from Stoic orthodoxy. For, to
illustrate his claim, Cicero appeals to the commonality of human reason (ratio
... certe est communis), and it is precisely in respect of their capacity to attain
a rational and consistent disposition that the early Stoics claim that human
beings differ (see esp. Cic., De Fin. 3.16 — 26). In other words, we appear to
have here another explicit example of Cicero's reinterpretation of koinos to
mean "common to all" in contradistinction to the term's original sense. This
would appear to be confirmed, to take a third point, by Cicero's use of
inchoatae intellegentiae
to designate the koinai ennoiaim
- which, once
again, were not the common property of all mankind for the early Stoics 104 .
This confusion between the koinai ennoiai and arguments from consensus, as
we saw earlier, appears to be due to the influence of Antiochus.
So much then for the philosophical background and originality of Cicero's
account of natural law in the 'De Legibus'. We have dwelt at length on his
account because it is agreed on all sides that the jurists, if they were in fact
influenced by the Stoics, would most likely have known their views on natural
law through this account. And the revisions Cicero has introduced, following
Antiochus, no doubt make this theory much more plausible as the basis on
which to found juristic doctrine. For natural law now extends to all human
beings, and it admits of codification in a definite set of precepts 105 . It also
serves as a definite standard against which it assesses the legitimacy of specific
positive laws. In De Legibus II, Cicero undertakes to apply his Antiochean
theory to actual political communities 106 , arguing that any law that conflicts
with nature is ipso facto invalid (2.11 - 1 4 ) : Cicero's examples are the agrarian
laws of Titius, Apuleisus and Livius. The question thus arises whether Cicero's
theory, or a juristic theory based upon it, served as a standard for Imperial
legislation. In the next two sections, we will assess the extent to which the
jurists of the Principate may be said to have followed the program set out by
Cicero.
101
See De Fin. 5.65 — 66; Acad. 1.21; Varro ap. Augustine, De Civ. Dei 19.3; Arius Didymus
120.8-122.10, on which see most recently JULIA ANNAS, The Hellenistic Version of
Aristotle's Ethics, Monist 73 (1990) 8 0 - 9 6 , who well explains the philosophical motivation behind Arius' account. For discussion of Antiochus' position, see J. MINGAY,
Coniunctio inter Homines Hominum. Cicero, De Finibus V 65 and Related Passages, in:
S. M. STERN et al. (eds.), Islamic Philosophy and the classical Tradition. Essays Presented
to Richard Walzer, Columbia, S.C., 1973, pp. 2 6 1 - 2 7 3 .
102
For early Stoic accounts of definition, see LONG and SEDLEY (1987), vol. I, pp. 1 7 9 - 1 8 3 .
103
Cf. Cicero's earlier discussion of quasi fundamenta quaedam scientiae (1.26).
As HAROLD CHERNISS points out in the introduction to his invaluable edition of
Plutarch's De Communibus Notitiis (Cambridge, 1976) 625 - 628.
As in the example from Florentinus discussed below, p. 4890.
This is another respect in which the original Stoic and Ciceronian political theories
differ. As I have argued in VANDER WAERDT (1991) and (1994), the early Stoics' accounts
of the community of gods and human beings governed according to koinos nomos are
entirely hypothetical, and not intended as the model for existing political communities.
104
105
106
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IV. Gaius on Ius Naturale, Ius Gentium and Ratio Naturalis
In turning now to consider whether Cicero's account of natural law
influenced subsequent juristic doctrine, we must confront an immediate difficulty presented by our sources: with the exception of Gaius' 'Institutes', which
presumably has survived because of its importance as a teaching tool, we
know the work of the classical jurists almost exclusively through Justinian's
compilations. In many cases, there is reason to suspect that fragments quoted
from the classical jurists have been interpolated by the compilers of the
'Digest', who did in fact have a free hand to modify the texts from which
they were excerpting 107. These considerations are especially important in the
case of our present subject. For, as is well known, there are significant
confusions in the treatment of ius naturale and ius gentium in the 'Digest',
confusions which are difficult to explain without at least some recourse to
the hypothesis of interpolation 108. Moreover, the early juristic history of these
notions is obscured by the fact that the terms ius naturale and ius gentium
do not appear in Roman legal literature before Gaius 109 , who wrote in the
mid-second century A. D., some two centuries after Cicero. Although the state
of our evidence renders certainty impossible, I would like to suggest that
Gaius introduced important innovations into discussion of the ius gentium by
identifying this body of law with the prescriptions of ratio naturalis. This is
the closest parallel in juristic literature to the argument from consensus
gentium we have just considered in Cicero. Accordingly, Gaius' account of
the ius gentium provides the best example of possible Stoic or Stoic-inspired
substantive influence on juristic doctrine.
To set the stage, let us review briefly the division between the kinds of
law recognized by the classical jurists 110 . Traditionally they adopt a bipartite
distinction into ius civile and ius gentium. The former represents the law
applicable between Roman citizens (ius inter cives), which originally grew out
of interpretation of the Twelve Tables (Pomponius ap. Dig. 1.2.2.5 — 6). By
the late Republican period, as we have seen, it was comprised from a variety
of sources — statutes, plebiscites, senatus consulta etc. as supplemented by
the ius praetorium (Dig. 1.1.7; cf. Gaius, Inst. 1.2), the main source of
innovation in the civil law from the second century B. C. As Papinian explains,
See below, p. 4893.
108 These problems are summarized by D'ENTREVES (1951), pp. 2 3 - 3 6 .
109 See above, note 19.
110 See F. SENN, De la distinction du jus naturale et du jus gentium,
in ID., De la justice et
du droit, Paris, 1927; NICHOLAS (1962), pp. 5 4 - 5 9 ; H. F. JOLOWICZ, Historical Introduction to the Study of Roman Law, ed. 2, Cambridge, 1952, pp. 100 - 05, 548; A. A.
SCHILLER, Roman Law. Mechanisms of Development, The Hague, 1978, pp. 525 - 532,
549-551.
107
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PAUL A. VANDER
WAERDT
the ius praetorium is the law which the praetors have introduced "in aid or
supplementation or correction of the ius
civile"m.
The second kind of law, ius gentium, is rather obscure in origin 112 . It
appears to have originated in the court of the Peregrine Praetor, appointed from
circa 242 B. C. to settle disputes — mainly, but not exclusively, commercial —
involving non-Roman citizens. As the Roman empire expanded, so did the
importance of this court. A large body of law grew up to regulate the legal
relations of foreigners with one another and with Roman citizens. This law
appears for the most part to have been Roman in origin, though stripped of
the highly technical formalism of the legis actio procedure; it was, naturally
enough, an important vehicle for the development of commercial law. In the
course of time, ius gentium came also to refer to that part of the civil law
which Roman citizens shared with foreigners (e.g., Just., Inst. 1.2.1). We do
not know when the term ius gentium was first used to describe the law of
the Peregrine Praetor, but it appears as early as Cicero, in passages to which
we shall return (De Off. 3.23, 3.69; cf. p. 4883 below), to characterize natural
law in contradistinction to civil law. One question that arises, accordingly, is
to what extent this quasi-philosophical usage corresponds to that of Gaius.
Let us examine, then, the distinction between these two kinds of law as
set out by Gaius in book I of his 'Institutes' and repeated in Justinian's 'Digest'
(1.1.9; cf. 1.1):
"All peoples who are governed under laws and customs observe in part
their own special law and in part a law common to all men. Now that
law which each nation has set up as a law unto itself is special to that
particular civitas and is called ius civile, civil law, as being that which is
proper to the particular civil society {civitas). By contrast, that law which
natural reason has established among all human beings is among all
observed in equal measure and is called ius gentium, as being the law
which all nations observe 113 ."
Gaius' understanding of ius gentium as a law established by ratio naturalis
among all human beings is widely shared among the later jurists, who regularly
111
Dig. 1.1.7.1: adiuvandi vel supplendi vel corrigendi iuris civilis gratia. For a survey of
the evidence bearing on the development of the Praetor's edict, see SCHILLER (1978),
112
S e e DAVID DAUBE, T h e P e r e g r i n e P r a e t o r , J R S 4 1 ( 1 9 5 1 ) 6 6 - 7 0 ; J . M I C H E L , L e s o r i g i n e s
p p . 4 0 2 - 4 4 1 ; a n d n o w M . KASER, lus honorarium
113
a n d ius civile,
S Z 101 (1984) 1 — 114.
du 'jus gentium', Revue internationale des droits de l'antiquité, Sér. III 3 (1956) 313 —
348; for a dissenting view, SCHULZ (1946), pp. 73, 137. For an example of the kind of
jurisdictional issues which worried later jurists, see Gaius, Inst. 3.133 — 134.
Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi
omnium hominum iure utuntur, nam quod quisque populus ipse sibi ius constituit, id
ipsius proprium civitatis est vocaturque ius civile, quasi ius proprium ipsius civitatis:
quod vero naturalis ratio inter omnes homines constituit, id apud omnes
peraeque
custoditur vocaturque ius gentium, quo quasi iure omnes gentes utuntur.
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cite nature or natural law as the source of ius gentium114. And there is good
reason to suppose that within the juristic tradition this interpretation of the
ius gentium originates with Gaius, who appears to have been responsible for an
important revision of the meaning of ratio naturalis. This term is surprisingly
uncommon in juristic literature apart from Gaius, who uses it some sixteen
times115. It appears for the first time in Sabinus' controversies with the
Proculians, in which he attempts to counter their propensity for analogical
argumentation by appeal to a thing's objective or natural character. In this
usage, ratio naturalis means in a natural way, in accord with the facts 116 . A
good example is the school dispute over who owns a product which party A
makes out of materials belonging to party B (ap. Dig. 41.1.7): the Proculians
opt for A because what has just been made previously belonged to no one 117 ,
while the Sabinians counter that ratio naturalis requires that the owner of the
materials must also own any product constructed out of them, since the
product cannot be constructed without the materials118. In this and parallel
cases, appeal to ratio naturalis serves to draw attention to the natural properties of the subject in question. The Sabinian argument would appear to be
that the civil law cannot alter the properties of things which are fixed by
nature; on the other hand, there is no indication that the civil law must be
constituted by nature's prescriptions.
In making ratio naturalis the source of legal practices which are shared
by all human beings, Gaius significantly alters the usage of his Sabinian
predecessors. In the first place, as STEIN points out 119 , there is a shift in
emphasis from the second to the first word in the phrase: for Gaius, ratio
naturalis now refers to the common reason of humankind as revealed in its
practices. There is no indication that earlier Sabinians appealed to the univer114
115
116
117
118
119
Gaius in fact appears to use the two terms interchangeably (see Inst. 1.86 with 1.89).
The application of his doctrine is well illustrated by the extracts from Res Cottidianae II
(on the character of this work see, SCHULZ [1946], pp. 167 — 168) preserved in Dig. 41.1,
3, 5, 7, 9; see also Gaius, Inst. 1.1, 1.189, 2.65 - 79, 3.154; Just., Inst. 1.2.1, 1.2.11 (on
which see below, p. 4891), 1.20.6, 2.1.11, 2 . 1 . 4 0 - 1 .
It occurs four times in Paul, who speaks of ratio naturalis quasi lex quaedam tacita
(Dig. 48.207) and once in Ulpian. The association of the term with Sabinian school
doctrine, and its relatively late revision by Gaius, may help to explain the observation
of E. LEVY, Natural Law in Roman Thought, SDHI 15 (1949) 1 - 1 9 at 10 that "ratio
naturalis never obtained an organic status in their [the jurists'] reasoning. They used it
or not at convenience." One non-juristic text, Cicero's De Div. 2.61, quotes Chrysippus
in support of the proposition that unusual events have a natural explanation.
See P. STEIN, The Development of the Notion of Naturalis Ratio, in: A. WATSON (ed.),
Daube Noster. Essays in Legal History for David Daube, Edinburgh, 1974, pp. 305 - 1 6 .
It is evident from the discussion of this problem in Gaius' Institutes 2.79 that the
Proculians also hold that party B has cause for action against party A for theft of the
materials.
STEIN (1972B), p. 8 and (1974), p. 307 suggests that the Proculians and Sabinians could
have sought support in Aristotelian and Stoic views respectively, but I see no need to
resort to this conjecture.
See STEIN (1974), pp. 3 1 4 - 3 1 5 .
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PAUL A. VANDER WAERDT
sality of a practice, as Gaius now does, as evidence of its naturalness. Gaius
makes the consensus gentium a sign that the provision in question accords
with ratio naturalis. His explanation of guardianship provides an example:
he asserts that this institution is provided in the law of all nations, b e c a u s e
it accords with natural reason; he then adduces a consensus gentium argument
by way of explanation 120 . And he specifically adopts the view that the civil
law cannot change iura naturaliam.
As he explains in his discussion of the
provision in the Twelve Tables concerning searches lance et licio (Inst. 3.194),
theft can become manifest only by nature, not by statute, for law cannot
make a person into a manifest thief when he is not. Nature thus provides a
definite constraint on the formulation of the civil law. Moreover, natural
reason as expressed by the commonly shared practices of nations provides a
new, quasi-philosophical basis for the formulation of the ius gentium.
Gaius' understanding of the ius gentium as the dictate of natural reason
thus relies on his modifications of the doctrine of ratio naturalis that was
specifically associated with his school. Hence it is likely that his account of
the ius gentium also is original, however alien this conjecture might be to the
origin and historical development of that body of law. The absence of any
discussion in earlier juristic literature of ius gentium certainly lends plausibility
to the suggestion that he gave this doctrine a prominence it had not previously
had in legal discussion.
If then there is no juristic precedent for Gaius' doctrine, is it possible
that he has been influenced by some philosophical source? Gaius is often
supposed to have been among the most independent-minded and philosophically trained of the classical jurists 122 . The connection between ratio naturalis
and consensus gentium in his thought might lead one to suspect the influence
of Cicero, who of course appeals to the consensus omnium in attempting to
120
121
122
Inst. 1.189: Sed inpuberes quidem in tutela esse omnium civitatium iure contingit; quia
id naturali rationi conveniens est, ut is, qui perfectae aetatis non sit, alterius tutela
regatur, nec fere ulla civitas est, in qua non licet parentibus liberis suis inpuberibus
testamento tutorem dare; quamvis, ut supra diximus, soli cives Romani videantur tantum
liberos suos in potestate habere. For Gaius' explanation of the dependent position of
slaves by appeal to the consensus gentium, see Inst. 1.52.
See Inst. 1.158: civilis ratio civilia quidem iura corrumpere potest, naturalia vero non
potest. In his work on the provincial edict, Gaius uses this principle to sustain an action
concerning a dowry despite change in civil status (ap. Dig. 4.5.8), and to maintain in
the case of a wall which is common property by natural reason that neither owner has
a unilateral right to demolish and rebuild it (ap. Dig. 8.2.8).
There is an unsatisfactory discussion of the subject in A. M. HONORÉ, Gaius, Oxford,
1962, pp. 9 7 - 1 1 6 : the parallels he identifies between Gaius' classification of obligations
and Aristotle are commonplaces, the question of other possible sources receives no more
comment than "I do not deny the possibility of Stoic influence on Gaius" (p. 108), and
the fact that Gaius often raises questions of law without deciding them is adduced as
evidence of "the influence of Socrates on Gaius" (p. 110). An unconvincing attempt to
associate Gaius' doctrine on ius gentium with the Stoic cosmopolis is made by F. CASAVOLA, Cultura e scienza giuridica nel secondo secolo d. C., in: H. TEMPORINI (ed.),
ANRW, vol. 11.15, B e r l i n - N e w York, 1976, pp. 1 6 3 - 1 6 7 .
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PHILOSOPHICAL INFLUENCE ON ROMAN JURISPRUDENCE?
4883
establish the universal applicability of natural law 123 . Moreover, two parallels
which reproduce the framework of Gaius' position appear in the third book
of Cicero's *De Officiis' 124 . In the first, Cicero argues that the laws not only
of nature, i. e., of the ius gentium, but also those of particular communities
prohibit any man from injuring his neighbour for the sake of his advantage 125 .
This passage provides an important antecedent for Gaius' position in two
ways: first, Gaius likewise holds that natural reason provides for lawful selfdefence 126 ; and second, both Cicero and Gaius associate the ius gentium with
nature and contrast them with the laws of particular communities.
In the second passage, Cicero traces to the natural societas that obtains
among human beings, the strength of which is closer among fellow-citizens,
the distinction between ius gentium and ius civile127. To what extent is it fair
to say that this distinction reflects technical Stoic (or Antiochean) usage?
There is no evidence that the Stoics ever associated their natural community
of gods and men with the ius gentiumm.
Cicero, to be sure, uses arguments
from the consensus gentium to establish his position that the provenance of
natural law extends to all human beings, apparently on the ground that the
universality of a practice establishes that it is founded in nature 129 . The
discussion of man's societas in D e Legibus' I (28 — 30) provides no suggestion
that it is the basis for a distinction in the types of law. Accordingly, it seems
likely that Cicero is simply presenting his antecedent understanding of the ius
gentium in a way that he believes is consistent with Stoicism.
These Ciceronian texts show that the formal division of law which Gaius
announces at the beginning of his 'Institutes' in fact was well established in
Roman thought some two centuries before it is attested in a juristic text. But
does Gaius understand this division in the same way as Cicero did? There are
123
124
125
126
See above, pp. 4 8 7 6 - 7 7 .
In this book, of course, Cicero no longer is following Panaetius as his principal source.
He claims that his account is fully in accord with the position of the Stoics.
Cic., De Off. 3.23: Neque vero hoc solum natura, id est, iure gentium, sed etiam legibus
populorum, quibus in singulis civitatibus res publica continetur...
For the claim that
according to natural law any method of winning safety is justifiable when confronted
with violence, see Pro Milone 4.10; De Invent. 2.161.
Note Gaius' defense of lawful homicide with reference to natural reason (ap. Dig. 9.2.4);
in the case of a slave who is killed by the man he lies in ambush to rob, nam adversus
periculum naturalis ratio permittit se defendere. Florentinus (ap. Dig. 1.1.3) attributes
to the ius gentium the provision that whatever a person does for bodily security can be
upheld; on this passage, see below, p. 4890.
127
Cic., De Off. 3.69: Societas est enim (quod etsi saepe dictum est, dicendum est tamen
saepius), latissime quidem quae pateat, omnium inter omnes, interior eorum, qui euisdem
gentis sint, proprior eorum, qui eiusdem civitatis. ltaque maiores aliud ius gentium,
aliud ius civile esse voluerunt; quod civile, non idem continuo gentium, quod autem
gentium, idem civile esse debet. Sed nos veri iuris germanaeque
iustitiae solidam et
expressam effigiem nullam tenemus, umbra et imaginibus utimur. Note that Cicero goes
on to associate ius civile with nature.
128
See above, pp. 4875 - 76 and 4882 for references.
See above, p. 4876.
129
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PAUL A. VANDER WAERDT
several important divergences, which in my opinion suffice to rule out the
hypothesis that Gaius simply took over his doctrine from Ciceronian Stoicism.
In the first place, there is no evidence that Gaius recognizes any natural
societas of the kind which Cicero uses to explain the distinction between ius
civile and ius gentium. Inasmuch as Gaius does not accept the philosophical
underpinning on which Cicero's doctrine relies, his division of law cannot be
said to be founded on the same considerations 130 . Secondly, Gaius does not
employ the term natura in a technical sense comparable to that of Cicero 1 3 1 ;
instead, his usage follows the prosaic sense common among the jurists. Finally,
Gaius departs importantly from his philosophical antecedents in specifically
denying that a provision of the ius civile that is "contrary to nature" is thereby
invalidated. T h e last two points bear further elaboration.
When the jurists employ the terms nature and natural law, they generally
refer to that which conforms to the visible properties of things, their physical
condition or the customary conduct of man 1 3 2 . Their usage does not rely upon
any specific or developed theory about human nature, certainly not the Stoic
theory in particular. As L E V Y says, they designate as natural "not only what
followed from physical qualities of men or things, but also what, within the
framework of that system, seemed to square with the normal and reasonable
order of human interests and, for this reason, not to be in need of any further
evidence" 1 3 3 . In other words, they use the terms nature or natural law to
designate the factual basis on which the application of the law in particular
cases relies. Hence Celsus' dictum that what nature forbids, no provision of
law can confirm (ap. Dig. 50.17.188) 1 3 4 . For example, it was held that someone
under puberty, because of man's physical nature, could not act on his own
behalf; his father or guardian must do so (Gaius, Inst. 1.189). Or, to take
another kind of example, Gaius argues that
"the principles of both natural justice and the civil law are in favor of
our being able to improve another's position, even without his knowledge
and agreement, but not of our being able to make it worse" (ap. Dig.
1.3.8),
using this argument to support the conclusion that one who pays interest for
another, even without his knowledge, frees him from liability. In this case,
130
131
132
The only possible parallel I have found to Stoic doctrine on man's societas is in the late
jurist Florentinus, on which see below, p. 4890.
For an index of passages, see HONORE (1961), pp. 106 — 107.
See particularly C. A. MASCHI, La concezione naturalística del diritto e degli giuridici
r o m a n i , M i l a n o , 1 9 3 7 ; L E V Y ( 1 9 4 9 ) 1 - 1 9 ; STEIN ( 1 9 7 4 ) 3 0 5 - 3 1 6 ; W . WALDSTEIN, E n t -
scheidungsgrundlagen der römischen Juristen, in: H. TEMPORINI (ed.), ANRW, vol. 11.15,
B e r l i n - N e w York, 1976, pp. 7 8 - 9 0 , with full bibliography at p. 78 note 278; SCHILLER
( 1 9 7 8 ) , p p . 5 5 6 - 5 5 8 ; COLISH ( 1 9 8 5 ) , v o l . I, p p . 3 6 5 - 7 3 .
133
LEVY ( 1 9 4 9 ) 7.
134
There are parallels in juristic decisions that provisions of law which are impossible of
fulfillment cease to be binding: e.g., Dig. 45.1.137.6.
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PHILOSOPHICAL INFLUENCE ON ROMAN JURISPRUDENCE?
4885
the appeal to nature is not further explained, as though it were self-evident135.
More generally, when the jurists refer to a thing's natural character, they
generally seek to provide a factual basis for the application of relevant law.
This juristic use of nature and natural law differs markedly from the
usage of philosophers whose doctrines have often been cited as antecedents.
In contrast to Ciceronian Stoicism, to continue our present example, Gaius
denies that nature, natural reason and natural law provide a standard for
conduct which ever supersedes the ius civile. There is one example that
establishes this point most tellingly. In the case of slavery, the jurists freely
acknowledge that no human being is a slave by nature, but nonetheless they
have no doubt that the laws of slavery are binding under the ius gentium or
ius civile136. Thus Ulpian tells us that slaves are not regarded as persons under
ius civile, but that under natural law all human beings are equal 137 . Slavery,
on this view, is a product of human custom in which one human being is
made the property of another — "contrary to nature", as the third century
A. D. jurist Florentinus puts it 138 . Since this is the sole provision of the ius
gentium ever said to be contrary to nature, it is not surprising that the
institution was thought to stand in need of explanation: Florentinus offers an
argument from etymology to suggest that servi are conquered enemies who
receive the benefit of being saved {servare)139. And Ulpian (ap. Dig. 1.1.4)
provides the following account of manumission, which
"originated from the ius gentium, since, of course, everyone would be
born free by the natural law, and manumission would not be known
when slavery was unknown. But after slavery came in by the ius gentium,
there followed the beneficium of manumission 140 ."
In this case, the jurists claim, the civil law developed an institution to
ameliorate the practice of slavery which the ius gentium recognized in violation
of natural law. Nor is this the only respect in which Roman civil law was
135
See STEIN ( 1 9 7 4 ) .
136
Marcian (ap. Dig. 1 . 5 . 5 . 2 ) explains that slavery by ius civile occurs when someone over
the age of twenty sells himself to share in the price, by ius gentium when someone is
captured by enemies or born of a female slave.
Dig. 5 0 . 1 7 . 3 2 : Quod attinet ad ius civile, servi pro nullis babentur; non tamen et iure
naturali, quia, quod ad ius naturale attinet, omnes homines aequales sunt.
Dig. 1.5.4 pr. and 1: Servitus est constitutio iuris gentium, quia quis dominio alieno
contra naturam subicitur. Note that the ius gentium is here expressly contrasted with
nature and is not, as in Gaius, regarded as a product of it. For the way in which the
Roman law of persons treated slaves, see LEVY (1949) 1 1 - 1 5 and, more extensively,
A. WATSON, The Roman Law of Slavery, Baltimore, 1987. Florentinus is a rather obscure
jurist, said not to have been quoted by any other jurist: see ROBY (1886) ccv-ccvi.
See Dig. 1 . 4 . 2 : Servi ex eo appellati sunt, quod imperatores captivos vendere ac per hoc
servare nec occidere
solent...
quae res a iure originem sumpsit, utpote cum iure naturali omnes liberi nascerentur nec
esset nota manumissio, cum servitus esset incognita; sed posteaquam iure gentium
servitus invasit, secutum est beneficium
manumissionis.
137
138
135
140
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PAUL A. VANDER WAERDT
thought to have modified the power of life and death which masters held over
slaves by the ius gentium (see Gaius, Inst. 1.52 —54) 141 .
The most noteworthy feature of the jurists' position on slavery is their
failure to draw the conclusion that slavery, an institution of the ius gentium
without natural foundation, is unjust and therefore illegal. They do not draw
this conclusion because they do not hold that a practice that is "contrary to
nature" is thereby "contrary to law" 1 4 2 . Nothing reveals their fundamental
difference from the Stoics, or from their Christian contemporaries 143 , more
clearly than their refusal to grant prescriptive powers to nature — what is
"by nature" is not determinative of its legal status. Generally speaking,
wherever natural reason conflicts with the ius civile, the latter supersedes and
is binding (see e.g., Gaius, Inst. 1.190, 193 on tutelage for mature women) 144 .
As to the claim that the jurists were following the Stoics in holding that
slavery is contrary to nature, it has to be pointed out that Plato took the same
position and that the Stoics were not the egalitarians they are commonly
painted to be 145 .
Thus there are fundamental respects in which Gaius, despite the similar
framework in his understanding of the ius gentium as the dictate of natural
reason, rejects the Stoic views which Cicero puts forward in the De Legibus'
and De Officiis'. It may be the case that the consensus gentium argument as
Cicero employs it in these texts influenced Gaius' understanding of ius gentium
as that which ratio naturalis establishes among all nations. But in rejecting
the fundamental argument of his philosophical predecessors, that a positive
law contrary to nature must be declared invalid, Gaius effectively rejects their
attempt to found the civil law on the basis of a theory of natural law 146 .
There are thus no grounds for thinking that his treatment of the ius gentium
represents an attempt to put Roman law on a philosophical footing, or that
it supports the hypothesis of extensive Stoic influence on Roman law.
141
142
143
144
145
146
For an evaluation of this claim with respect to practice, see WATSON (1987).
Gaius himself refers to the ius gentium in his account of slavery, but makes no appeal
to ratio naturalis (Inst. 1.50 — 54), so it is unclear how he would resolve the conflict
which other jurists leave between the unnaturalness of slavery and its acceptance under
ius gentium. His discussion of the modifications the civil law has introduced into the
ius gentium here and at Inst. 1.81 — 86 suggests a certain unease about the question.
For a striking argument in favor of the proposition that a provision of civil law contrary
to the law of nature is invalid and should not be obeyed, see Origen, Contra Celsum
5.37.
For an example in which the ius gentium is modified by the ius civile, see Gaius, Inst.
1.78 — 88. Ulpian (ap. Dig. 2.2.3.7) refers to a rather obscure opinion of Julian which
appears to suggest that a bad law is no less binding by nature than a good one. Cicero
explicitly notes (De Invent. 2.67) that naturae iura ... neque in hoc civile iure versantur.
As noted above, Zeno claims that some human beings are more capable than others of
attaining wisdom (Cic., DeFin. 4.56). NICHOLAS (1962), p. 55 assumes that the jurists
were following Stoic doctrine in holding that slavery is contrary to nature.
For the absence of a moral view of natural law among the jurists, see now also ALAN
WATSON, Roman Law and Comparative Law, Athens, Georgia, 1991, pp. 214 ff.
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PHILOSOPHICAL INFLUENCE ON ROMAN JURISPRUDENCE?
V. Some Test Cases in Jurisprudence
of the
4887
Principate
We have focused so far on the most promising case in which a Roman
jurist's conception of law may have been substantively influenced by Stoic
philosophy. Our negative verdict in that case need not entail, of course, the
failure of the hypothesis we have been examining. Another promising place
to look for examples of Stoic influence would be those passages in which
jurists of the Principate might be thought to echo known Stoic texts. In this
section, I shall consider a selection of such passages, partly to strengthen the
case against the hypothesis of substantive Stoic influence, and partly to indicate
the range of evidence and of considerations that enter into assessment of
possible philosophical influence. In contrast to the Republican period, jurists
of the Principate often adorn their arguments with philosophical dicta; but
we should not conclude without clear evidence that this tendency reflects an
increasing influence of philosophy upon juristic reasoning. In fact, I shall
try to show, these dicta either represent philosophical commonplaces which
belonged to the common heritage of educated men, or they are merely
ornamental additions to positions already developed on other, juristic grounds.
(i) Justinian's 'Digest' begins (1.1; cf. Inst. 1 pr.) with the following
quotation from book I of Ulpian's 'Institutes':
"A law student at the outset of his studies ought first to know the
derivation of the word ius. Its derivation is from iustitia. For, in terms
of Celsus' elegant definition, the law is the art of goodness and fairness.
Of that art we [jurists] are deservedly called the priests. For we cultivate
the virtue of justice and claim awareness of what is good and fair,
discriminating between fair and unfair, distinguishing lawful from unlawful, aiming to make men good not only through fear of penalties but also
indeed under allurement of rewards, and affecting a philosophy which,
if I am not deceived, is genuine, not a sham 147 ."
This famous passage openly expresses an aspiration for true or genuine
philosophy which invites enquiry into possible philosophical sources for the
conception of the jurist's art here expressed. No doubt Ulpian's text was
chosen to open the 'Digest' because of the concise dignity with which he
characterizes the art's high claims. But it is quite doubtful that this characterization is directly based on any particular philosophical source. The deriva147
luri operant daturum prius nosse oportet, unde nomen iuris descendat, est autem a
iustitia appellatum; nam, ut eleganter Celsus definit, ius est ars boni et aequi. Cuius
mérito quis nos sacerdotes appellat; iustitiam namque colimus et boni et aequi notitiam
profitemur, aequum ab iniquo separantes, licitum ab illicto discernentes, bonos non
solum metu poenarum, verum etiam praemiorum quoque exhortatione efficere cupientes,
veram nisi fallor philosophiam, non simulatam affectantes.
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PAUL A. VANDER WAERDT
tion of ius from iustitia is of course at philosophical commonplace, one which
Antiochus apparently thought could describe the position of the veteres; there
is no reason to suppose that Ulpian is specifically relying upon the Stoics 148 .
Similarly, the definition of ius as ars boni et aequi has a long history which
does not reveal any specific philosophical allegiance. The phrase bonutn et
aequum has a technical sense among the Republican jurists in the field of
procedure (e.g., Papinian, ap. Dig. 47.12.10; cf. 47.10.17.2) 149 ; in Cicero it
acquires the sense of equity as a source of the civil law or as a corrective of
it 150 . Among jurists of the Principate this phrase is closely associated with ius
naturale: thus Paul, when defining the senses of ius in book 15 of his 'Sabinus',
clearly identifies ius naturale with ius in this sense of meaning what is always
good and fair 151 , contrasting it with ius civile as meaning what is in the
interest of everyone or a majority in each civitas. Thus the jurists conceive of
ius naturale as providing some kind of standard of good and equitable conduct,
to which Ulpian alludes in his phrase boni et aequi notitiam. And it might be
thought that Ulpian's account of his art as the source of the distinction
between fair and unfair, lawful and unlawful, is a reminiscence of the exordium
of Chrysippus' 'On Law' (as preserved by Marcian ap. Dig. 1.3.2 = SVF
3.314), in which he speaks of nomos as the canon of justice and injustice
which is prescriptive of right conduct. But does Ulpian understand his art to
enjoin good and equitable conduct in a sense that is distinctively or recognizably Stoic?
The short answer is that he does not: in fact, no juristic text reproduces
the prescriptive injunction that is a fundamental feature of the Stoic theory.
If the jurists had been influenced by the Stoic theory of natural law, as we
have seen, one would expect them to consider nature a standard for the
determination of justice and injustice. Quite the contrary, however, is the case:
the designation of a right as natural in Roman law regularly gives it a status
inferior to a right founded in ius civile152. Since the jurists do not derive
the content of positive law from nature's prescriptions, they clearly do not
understand their ars boni et aequi to enjoin conduct necessarily in accordance
with nature or with natural law. This consideration, inasmuch as it reflects
the jurists' very conception of their art, strongly tells against the hypothesis
of substantive Stoic influence on Roman legal doctrine.
(ii) Another important case comes from Ulpian's Rules I (ap. Dig.
1 . 1 0 . 1 - 2 ; cf. Inst. 1.3):
"Justice is a steady and enduring will to render unto everyone his right.
The precepts of right are these: to live honorably, not to harm any other
148
149
150
For the derivation of ius from iustitia, see, e.g., De Leg. 1.19.
See FRITZ PRINGSHEIM, Bonum et aequum, SZ 52 (1932) 78 - 1 5 5 .
Cf. Top. 90; De Part. Orat. 1 2 9 - 1 3 1 ; De Invent. 2 . 6 8 - 6 9 ; Rhet. ad Her. 2.20; for
discussion: GEORGES CIULEI, L'Equité chez Cicéron, Amsterdam, 1972; Ducos (1984),
pp. 3 0 3 - 3 3 8 .
151
152
Dig. 1.11: cum id quod semper aequum ac bonum est ius dicitur, ut est ius naturale.
See above, p. 4886.
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PHILOSOPHICAL INFLUENCE ON R O M A N JURISPRUDENCE?
4889
person, to render to each his own. Practical wisdom in matters of right
is an awareness of God's and men's affairs, knowledge of justice and
injustice 153 ."
This passage, providing as it does a definition of justice and specification of
its praecepta, is an excellent candidate for Stoic influence154. Each of these
praecepta iuris is a Stoic doctrine attested by Cicero, who employs exactly
the same phrases: for honeste vivere, see De Fin. 2.34 155 ; for alterum non
laedere, see 3.70 156 ; and suum cuique tribuere, the third precept, finds expression in the Stoic definition of justice157. But none of these precepts is distinctive
of the Stoics; in fact, each is a philosophical commonplace which can be
attested even before Plato 158 .
Moreover, it appears that Ulpian did not understand his praecepta in a
Stoic sense. For what he means by rendering everyone his right, presumably,
is simply what he is entitled to in virtue of his status under Roman law (e. g.,
Dig., 38.11). The phrase divinarum atque humanarum rerum might recall
various Stoic texts, including the exordium of Chrysippus' 'On Law' cited by
Marcian (Dig. 1.3.2 = S VF 3.314), but the phrase is hardly peculiar to him 159 ,
and there is no reason to suppose that Ulpian here means to refer to the Stoic
societas between human beings and gods. Hence this passage, even if its
phrasing is held to derive ultimately from the Ciceronian parallels quoted,
appears not to advance a specifically Stoic position. Moreover, Ulpian's list
of precepts, however morally commendable, appears to have no importance
for the actual practice of Roman law 160 . Finally, this passage is now generally
considered to be spurious (belonging to the epiclassical period, i. e., A. D.
250 — 300), and so no longer evidence of classical jurisprudence161.
Iustititia est contans et perpetua voluntas ius suum cuique tribuendi. Iuris praecepta sunt
haec: honeste vivere, alterum non laedere, suum cuique tribuere. Iuris prudentia est
divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.
154 SCHULZ (1946), p. 136 is certain of his claim that "The Stoa is responsible for the three
illogically combined praecepta iuris", but his candidate for the source, Cicero's account
(De Leg. 1.18) of the iuris principia, does not so combine them.
155 Cf. 3.29; and, for Antiochus' criticism of this Stoic view, see 4.26.
156 Cf. De Off. 1.31, 3 . 2 6 - 2 8 .
157 See De Invent. 2.160: iustitia est habitus animi communi
utilitate conservata suam cuique
tribuens dignitatem-, its Stoic ancestry may be traced in the texts assembled by A. ERSKINE,
The Hellenistic Stoa. Political Thought and Action, Ithaca, 1990, pp. 1 1 4 - 1 2 0 ; but this
definition is also advanced by Plato and Aristotle, so that we should not assume it to
be a Stoic definition without specific evidence.
158 See the discussion of Simonides' poem in Rep. I.
159 The phrase is of course used by Justinian himself in De Conceptione Digestorum 1: Cum
itaque nihil tam studiosum in omnibus rebus invenitur quam legum auctoritas, quae et
divinas et humanas res bene disponit et omnem iniquitatem
expellit...
160 " J h e extant thousands of rulings and discussions of the jurists would stand and form
a coherent whole as they do, if those tenets were completely missing", says LEVY (1949)
17, who goes on to explain how they are disregarded in the practice of Roman law.
161 See A . M . HONORÉ, Ulpian, Oxford, 1982, pp. 1 1 1 - 1 3 ,
128 and D. LIEBS, Ulpiani
Regulae. Zwei Pseudepigrafa, in: G. WIRTH, Romanitas-Christianitas, Berlin, 1982,
p. 292.
153
321
A N R W II 3 6 . 7
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(iii) In attributing to ius gentium
the right to repel bodily injuries,
Florentinus 1 6 2 refers to a natural relationship between human beings which
makes homicide wrong (ap. Dig. 1.1.3):
" O r the right to repel violent injuries. You see, it emerges from this law
(;ius gentium) that whatever a person does for his bodily security he can
be held t o have done rightfully; and if nature has established among us
a relationship of sorts, it follows that it is a grave wrong for one human
being to encompass the life of a n o t h e r 1 6 3 . "
We have already seen (above, p. 4 8 8 3 ) parallels in Cicero and in the jurists
which ascribe to natural law the provision of justifiable self-defence. W h a t is
remarkable about this juristic text is its apparent suggestion that this provision
of the ius gentium may be explained in terms of a natural relationship among
human beings. While Gaius attributes the right of lawful self-defense to ratio
naturalis (ap. Dig. 9.4), in keeping with his doctrine of ius gentium as that
which natural reason has established among all peoples, Florentinus here
might be supposed to offer an alternative justification for lawful self-defence,
one based directly upon Stoic philosophy. F o r the Stoics base their prohibition
of homicide, and their teaching on justice in general, on their doctrine of
oikeiosis, or the natural kinship among human beings 1 6 4 .
T h e evidence, however, seems rather slight to bear the weight of this
hypothesis. In the first place, Florentinus does not explain the character of
this cognatio, or how it entails the prohibition of homicide. Hence, particularly
162
163
164
On Florentinus see above, note 138. The following text has, of course, been suspected
to be an interpolation.
ut vim atque iniuriam propulsemus: nam iure hoc evenit, ut quod quisque ob tutelam
corporis sui fecerit, iure fecisse existimetur, et cum inter nos cognitionem
quandam
natura consitituit, consequens est hominem homini insidiari nefas esse.
See esp. Cic., De Fin. 3 . 6 2 - 6 8 ; De Leg. 1 . 4 0 - 4 3 ; Acad. 2.139-140; D.L. 7 . 8 5 - 8 6 ;
Plut., De Stoic. Rep. 1038 b - e ; De Soil. Anim. 962 a - b ; De Amore Prolis 495 b - c ;
Porph., De Abst. 3.19; Hierocles col. 6.22-9.21; Anon. Comm. on Plato's 'Theaetetus',
col. 5.36 —6.35. For guidance in the extensive literature on this subject, see especially
INWOOD (1985), pp. 1 8 2 - 2 1 5 ; also: the fundamental paper by C. O. B R I N K , Theophrastus
and Zeno on Nature in Moral Theory, Phronesis 1 (1956) 123 —145; H. G O R G E M A N N S ,
Oikeiosis in Arius Didymus, in: W. W. FORTENBAUGH [ed.], On Stoic and Peripatetic
Ethics. The Work of Arius Didymus, New Brunswick —London, 1983, pp. 165 — 189;
ANNAS (1990); and, on the derivation of justice from oikeiosis, S. G . P E M B R O K E , Oikeiosis,
in: A. A. LONG (ed.), Problems in Stoicism, London, 1971, pp. 122 — 132. The proliferation
of attempts in later sources to explain how parental concern for children provides the
starting-point for justice is probably due to Chrysippus' failure to make the line of
argument explicit (see my comments in: Review of W. W. FORTENBAUGH [ed.], On Stoic
and Peripatetic Ethics. The Work of Arius Didymus, New Brunswick - London, 1983,
AJP 109 [1988] 2 6 3 - 6 5 ) . But Hermarchus' polemic against the Stoic derivation of justice
from oikeiosis seems to provide strong, albeit indirect, evidence that this doctrine goes
back to Zeno: on chronological grounds, of course, he is the Stoic Hermarchus is most
likely to have attacked, and Chrysippus can be ruled out because of his youth; see P. A.
VANDER W A E R D T , Hermarchus and the Epicurean Genealogy of Morals, TAPA 118
(1988) 8 7 - 1 0 6 .
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given the absence of parallel juristic texts, it is hard to be confident in giving
this term a precise sense comparable to its Stoic use. Secondly, the cum clause
here is most likely conditional rather than causal, in which case Florentinus
is merely drawing a subsidiary conclusion from a premiss to which he is not
himself necessarily committed165. He could merely be pointing out to those
who accept that there is such a natural cognatio that the right of self-defence
follows from it, while relying for the justification of this doctrine on the
considerations advanced by his juristic predecessors. It would be unparalleled
if Florentinus thought that the right of self-preservation was d e p e n d e n t upon
a particular view of the natural relationship among human beings.
(iv) Justinian in his 'Institutes' (1.2.11) provides the following famous
account of naturalia iura:
"But natural rights, which are observed uniformly by all peoples, are
sanctioned by divine providence and last forever, firm and immutable;
the rights which each state establishes for itself are often changed either
by the tacit consent of the people or by later legislation166 ."
It has been supposed by A. A. L O N G that the conception of divine providence
in this passage derives from Stoicism, in which case one might adduce it as
evidence for "the significance of Stoicism on the formulations of Roman
jurists" 167 . As it happens, this passage derives not from Gaius' 'Institutes', as
L O N G supposes, but from Justinian's; accordingly, it provides no evidence for
the position of the classical jurists. Christianity and Stoicism both advance a
doctrine of divine providence, and this passage provides no grounds for
choosing between them, except that a Justinianic passage on divine providence
is far more likely to be of Christian than of Stoic inspiration, as a glance at
the Confirmation of the 'Digest' would show.
(v) Finally, let us consider a juristic text which exercised an enormous
influence over the subsequent history of natural law theory, even though it
flagrantly conflicts with orthodox jurisprudential doctrine and with the Stoic
position. This is Ulpian's famous account of ius naturale as that which nature
has taught all animals. This passage is usually considered an interpolation168,
165
166
167
168
321»
So LEVY (1949) 8 note 65.
Sed naturalia quidem iura, quae apud omnes gentes peraeque servantur, divitia quadam
providentia constituta semper firma atque immutabilia permanent: ea vero, quae ipsa
sibi quaeque civitas constituit, saepe mutari solent vel tacito consensu populi vel alia
postea lege lata.
A. A. LONG (American Historical Review 92 [1987] 1 1 8 7 - 8 8 ) , who takes COLISH (1985),
vol. I, p. 359 to task for failing to recognize that Stoicism is the source of the doctrine
of divine providence in this passage. LONG perpetuates his mistranslation of Inst. 1.2.11:
"a divine providence, which always remains firm and immutable" does not translate the
text of this passage, which contrasts immutable natural laws and mutable positive laws
(the adjectives firma atque immutabilia do not refer to divine providence).
See SENN (1927), p. 66 note 1; E. LEVY and E. RABEL, Index interpolationum quae in
Iustiniani digestis inesse dicuntur (Weimar, 1929) ad loc.; D'ENTREVES (1951) 31.
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no doubt rightly. But its historical influence was guaranteed by its conspicuous
place at the beginning of Justinian's 'Digest' and 'Institutes' (1.2).
"Ius naturale is that which nature has taught to all animals; for it is not
a law specific to mankind but is common to all animals - land animals,
sea animals, and the birds as well. Out of this comes the union of man
and woman which we call marriage, and the procreation of children, and
their rearing. So we can see that the other animals, wild beasts included,
are rightly understood to be acquainted with this law. lus gentium, the
law of nations, is that which all human peoples observe. That it is not
co-extensive with natural law can be grasped easily, since this latter is
common to all animals whereas ius gentium is common only to human
beings among themselves. 169
The difficulty of reconciling this tripartite division of law into ius civile,
ius naturale, and ius gentium with the traditional bipartite division into ius
civile and ius gentium (= ius naturale) was to exercise scholastic minds for
centuries 170 . If Ulpian's division has a definite philosophical inspiration, it is
likely to be the view of Pythagoras and Empedocles, much discussed in
antiquity, that all living beings have the same juridical status, and that mankind
is united with the lower animals in a relation of natural kinship which makes
it unjust to slay or to sacrifice them 171 . In any event, Ulpian's division is
certainly at odds with the Stoic tradition 172 , which denies all justice and
community to non-rational animals (SVF 3.367 —76), and this contradiction
posed considerable difficulties for later thinkers who sought to reconcile the
two.
Thus there is little reason to believe that those philosophical commonplaces that one finds in the classical Roman jurists are due to the Stoics, that the
jurists understand their ars boni et aequi to enjoin moral conduct in accordance
with Stoic natural law, or that the precepts they assign to ius naturale reflect
a Stoic origin. In post-classical Roman law there is more of a tendency to
preface edicts with philosophical tags proclaiming that they accord with nature
169
lus naturale est, quod natura omnia animalia docuit: nam ius istud non humani generis
proprium, sed omnium animalium, quae in terra, quae in mari nascuntur. avium quoque
commune est. hinc descendit maris atque feminae coniunctio, quam nos matrimonium
appellamus, hinc liberorum procreatio, bine educatio: videmus etenim cetera quoque
animalia, feras etiam, istius iuris peritia censeri. Ius gentium est, quo gentes humanae
utuntur, quod a naturali recedere facile intellegere licet, quia illud omnibus animalibus,
hoc solis hominibus inter se commune sit.
170
See above, p. 4853.
See esp. Sext. Emp., Adv. Math. 9 . 1 2 7 - 1 2 8 ; and the evidence collected by J . BOUFFARTIGUE and M . PATILLON, Porphyre, De l'Abstinence, Paris, 1977, vol. I, pp. 96 — 97 note 6
(esp. Cic., De Rep. 3.22). The use that contemporary Peripatetics and Stoics made of
Empedocles' position in developing their own position on man's natural fellowship
provoked Hermarchus' 'Against Empedocles', on which see VANDER WAERDT (1988).
Contra, e.g., CROWE (1977) 47 - 51.
171
172
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or natural law, but there is no indication, once again, that these tags are
specifically Stoic in inspiration. The scholarly habit of seeking philosophical
sources for the formulations of the classical Roman jurists no doubt is due in
part to the fact that we have to study them as excerpted in Justinian's 'Corpus
Iuris Civilis', where philosophical commonplaces are relatively abundant,
rather than in their original form. And here we come to a further difficulty:
Justinian explicitly instructs the committee compiling the 'Digest' to revise
their classical sources as necessary 173 ; and his order to destroy these sources
upon completion of their work has engendered the suspicion, amply sustained
in some cases, that his committee engaged in re-writing of them; hence some
scholars have argued that all philosophical citations in the texts of the classical
jurists quoted in the 'Digest' are later interpolations174. This position has not
won general assent, but the possibility of interpolation must be borne in mind
in every case 175 .
VI.
Conclusion
Our review of the dossier of evidence that might be assembled in support
of the widely held hypothesis that Stoic philosophy substantively influenced
classical Roman juristic doctrine on ius naturale and related notions has
brought us to a negative verdict on this hypothesis. By way of recapitulation,
it is important to clarify the scope of this verdict. It does not mean that
Roman jurists were unversed in Stoicism. In fact, as we have seen, an
impressive number of prominent jurists possessed an intimate knowledge of
173
Justinian's order bears quoting to illustrate the difficulty faced by the scholar of classical
jurisprudence: De Conceptione Digestorum 7 (A.D. 530): "There is something else of
which we wish you to take special account: If you find anything in the old books that
is not well expressed, or anything superfluous or lacking in finish, you should get rid
of unnecessary prolixity, make up what is deficient, and present the whole in proportion
and in the most elegant form possible. What is more, if you find anything not correctly
expressed in the old books of constitutiones (enactments) which the ancient writers
quoted in their books, you should also take care to rectify it and put it into proper
form, so that what is chosen by you and set down there may be deemed genuine and
the best version and be treated as though it were what was originally written; and let
no one dare to assert that your version is faulty by comparison with the old text."
174
The most prominent representative of this view is EMILIO ALBERTARIO; see his: Introduzione storica alio studio del diritto romano giustinianeo, Milano, 1935, vol. I, pp. 81 —
134. For the conservative case, see M. KÄSER, Zur Methodologie der römischen Rechtsquellenforschung, Vienna, 1972. For the context in which the problem of interpolation
should be viewed, see A. M. HONORÉ, Tribonian, Ithaca, 1978, pp. 248 - 50. For the
view that Justinian did not give the compilers license to modernize the classical texts,
see now WATSON (1991) 74. The whole question has now been excellently reconsidered
by D. E . L. JOHNSTON, Justinian's Digest: The Interpretation of Interpolation, Oxford
Journal of Legal Studies 9 (1989) 1 4 9 - 6 6 .
See, for example, BERGER (1953), s. v. 'aequitas', 'ius naturale , 'humanitas\
175
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Stoic philosophy during the late Republican period; and, inasmuch as Stoicism
had passed into common educational culture by this period, it is likely that
many other jurists and advocates had acquired at least an elementary familiarity with it. Hence it is by no means surprising that juristic texts sometimes
employ technical Stoic terminology or display knowledge of Stoic doctrine.
Nor is it surprising that jurists of the postclassical period, who are more
inclined to attach philosophical tags to their arguments, sometimes refer to
philosophical doctrines that are ultimately (if not always immediately) Stoic
in inspiration. What our verdict does exclude, however, are the stronger claims
often advanced that the jurists' knowledge of Stoicism led them to modify
legal doctrine in the light of philosophical considerations.
These claims, I submit, betray a misunderstanding of the characteristics
of Roman legal argumentation. This argumentation proceeds on the basis of
its own internal canons of logic and interpretation; generally speaking, it
appeals to extra-legal considerations to settle not points of law, but points of
fact on which the application or interpretation of a given law relies 176 . When
the jurists have recourse to technical philosophical doctrine, accordingly, it is
most often to such ancillary disciplines as etymological or medical theory,
which may help, e.g., to clarify the meaning of a disputed term or phrase, to
establish what is physically (i. e., "naturally") possible, or to clarify a point
of fact which otherwise remains unclear. But such appeal to extra-legal
considerations generally does not, in Roman law, serve as the basis for a rethinking of legal doctrine. If one wonders why the scholarly habit of seeing
substantive Stoic influence on juristic doctrine on natural law is so prevalent,
the explanation lies largely in the accidents of transmission of our ancient
sources. The appearance of philosophical dicta in postclassical juristic texts,
which are prominently displayed in Justinian's 'Digest', has lent plausibility
to this assumption, as has Cicero's ambitious project in De Legibus I of refounding Roman civil law on a theory of natural law. But, as we have seen,
these philosophical dicta are decorative, and Cicero's novel plans find no
parallel in the history of Roman jurisprudence.
In the case of our subject, ius naturale and related notions, the Stoics'
position is fundamentally incompatible with that prevalent among the jurists.
Simply put, the Stoic doctrine of natural law provides a canon for just conduct
against which law codes or provisions of positive law are to be measured and
which, in case of conflict, always supersedes them. The jurists' doctrine on
ius naturale, on the other hand, has no such prescriptive power: a provision
of civil law which conflicts with nature is nonetheless binding, except when
nature renders fulfillment of the law's command impossible. This difference
in the normative status of nature and natural law suffices, I have argued, to
rule out the hypothesis of substantive Stoic influence on Roman jurisprudence
of the classical period.
176
For the rigorous exclusion of extra-legal matters in Roman juristic texts, see, for instance,
F. SCHULZ, Principles of Roman Law, Oxford, 1936, pp. 23 - 25.
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This difference between Stoicism and jurisprudence does not entail, of
course, that the high claims for the ars boni et aequi which open Justinian's
'Digest' are merely decorative. R o m a n jurisprudence has its own moral standards, which are internal to the discipline and not merely taken over from
philosophical discussion. T h e fundamental standards of conduct which the
jurists undertake to uphold are expressed in t w o interconnected terms: bona
fides and aequitas. Fides requires one to be bound by one's word, and in a
sense so strong as to entail a general requirement of fairness in discharging
one's legal reponsibilities: in fact, it requires aequitas177,
the standard to which
the jurists habitually appeal as the standard against which to interpret or to
correct received law. It is to these legal doctrines, and not t o the principles of
Stoic philosophy, to which we must turn if we wish to understand the moral
basis of R o m a n jurisprudence.
Bibliography178
A L B E R T A R I O , Introduzione storica alio studio del diritto romano guistinianeo,
Milano, 1935
JULIA ANNAS, The Hellenistic Version of Aristotle's Ethics, Monist 73 (1990) 80 - 96
JULIA ANNAS, The Morality of Happiness, Oxford 1993
VINCENZO ARANGIO-RUIZ, Storia del diritto romano, Napoli, 1964
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J. M. AUBERT, Le droit romain dans l'œuvre de saint Thomas d'Aquin ( = Bibliothèque
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A. BAUMAN, Lawyers in Roman Republican Politics. A Study of the Roman Jurists
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gentium or the ius civile.
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only intended to direct interested readers to some of the most useful or influential studies
in the enormous literature on the subjects considered in this article. There is a valuable
analytical bibliography in B E R G E R (1953), and more recent scholarship is reviewed in
ANRW, vol. 11.15, ed. H. T E M P O R I N I , Berlin-New York, 1976; for yearly 'rassegna
bibliografica' one may consult the periodical lura.
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A. BERGER, Encyclopedic Dictionary of Roman Law ( = Transactions of the American
Philosophical Society, N.S. 4 3 . 2 ) , Philadelphia, 1 9 5 3
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E
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MARCIA
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204
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DAVID DAUBE,
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Milano, 1981
JEAN-LOUIS F E R R A R Y , Philhellénisme et impérialisme. Aspects idéologiques de la conquête
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de Rome, vol. 271), Paris, 1988
JOHN FINNIS, Natural Law and Natural Rights, Oxford, 1980
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JOHN M. FINNIS, Moral Absolutes, Washington D. C. 1993
C A R L JOACHIM F R I E D R I C H , The Philosophy of Law in Historical Perspective, ed. 2, Chicago,
1963
B R U C E F R I E R , The Rise of the Roman Jurists. Studies in Cicero's 'pro Caecina', Princeton,
1985
Per un'intepretazione politica del De Officiis di Cicerone, RAL, Ser. VIII 34
(1979) 1 1 7 - 1 4 1
J. GLUCKER, Antiochus and the Late Academy ( = Hypomnemata, vol. 56), Göttingen, 1978
E. A. GOERNER, On Thomistic Natural Law. The Bad Man's View of Thomistic Natural
Right, Political Theory 7 (1979) 101 - 1 2 2
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On Stoic and Peripatetic Ethics. The Work of Arius Didymus ( = Rutgers University
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M. GRIFFIN, The Tribune C. Cornelius, JRS 63 (1973) 1 9 8 - 2 1 3
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M.-P. GUIBAL, De l'influence de la philosophie sur le droit romain et la jurisprudence de
l'époque classique. Essai de synthèse historique, Paris, 1937
EMILIO GABBA ,
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PHILOSOPHICAL INFLUENCE ON ROMAN JURISPRUDENCE?
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JAMES E. HOLTON, M a r c u s Tullius Cicero, in: L. STRAUSS and J . CROPSEY (eds.), History
of Political Philosophy, Chicago, 1972, pp. 130 — 50
A. M. HONORÉ, Gaius, Oxford, 1962
A. M. HONORÉ, Tribonian, Ithaca, 1978
A. M. HONORÉ, Ulpian, Oxford, 1982
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Abh. N.F., vol. 10), Berlin, 1987
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Journal of Legal Studies 9 (1989) 1 4 9 - 6 6
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M. KÄSER, Zur Methodologie der römischen Rechtsquellenforschung ( = österr. Akad. d.
Wiss., Philos.-histor. Kl., Sitzungsberichte, vol. 277.5), Vienna, 1972
M. K Ä S E R , lus honorarium und ius civile, SZ 101 (1984) 1 — 114
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