The Law of Nature in Greco-Roman Thought
Author(s): James Luther Adams
Source: The Journal of Religion , Apr., 1945, Vol. 25, No. 2 (Apr., 1945), pp. 97-118
Published by: The University of Chicago Press
Stable URL: https://www.jstor.org/stable/1199009
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
The University of Chicago Press is collaborating with JSTOR to digitize, preserve and extend
access to The Journal of Religion
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
JAMES LUTHER ADAMS
pie, in the contrast in Greek life and
py a pedestal wholly abovethought
and between the Greek and the bar-
REASON and its ideas do not occu-
barian
exempt from the influence of
theand between the freeman and the
slave.
forces of history. The history of philosophy bears an existential relation to From
the the beginning the main line
of development
of natural-law theory
rest of history. It is itself a part of
hisamong
tory, and it exhibits the influence
ofthe Greeks presupposed the ear-
lier religious conceptions of the divine
different religious, cultural, and political
ordering of the world. "The Greeks
outlooks. Because of this fact, no account
were,"
of the history of the idea of natural
lawas Jakob Burckhardt asserts,
may properly be a mere catalogue "aware
of theof a mythical or holy origin of
their several forms of life and felt themselves close to it."2 Unlike the modern
different ideas that have been set forth.
These ideas must be examined in the con-
text of the contingent historical situa- man, the Greeks did not understand
tions out of which they have risen and "nature" in terms of the idea of evolufor which they have claimed to serve as tion. To them, as someone has said, the
a critical norm. Specifically, this means natural apple was not the wild one from
that for the Greco-Roman period the his-which our cultivated apple has been
tory of natural-law theory must be seen grown but rather the golden apple of the
in relation to the major purpose which Hesperides. "The 'natural' object was
law in that period actually served.' Itthat which expressed most completemust be related also to the changing ly the idea of the thing. It was the percultural and political situations char-fect object. Hence the natural law was
acteristic of the principal phases of de- that which expressed perfectly the idea
velopment, that is, to the rise and de-of law, and a rule of natural law was one
cline of the Greek city-state, to the which expressed perfectly the idea of
spread of the Macedonian empire, andlaw applied to the subject in question."3
to the various phases in the history of In the earliest Greek conceptions of
Rome and its empire.
the world, the existing laws and institu-
The meaning of the term "natural tions of the group were regarded as unlaw" in any particular instance mayder divine law and sanction. This view,
often be most readily discriminated by of course, supported the conventional
determining what it is opposed to, that popular conceptions which considered
is, by noting its antithesis, as, for exam-adherence to the mores of the group to
ple, in the contrast in Greek thought 2 Burckhardt, Griechische Kulturgeschichte (Leipbetween physis and nomos (nature andzig, I929), I, 35; quoted by J. P. Mayer, in Political
convention) to be discussed later, or by Thought: The European Tradition (New York, I939),
noting the antithesis that determines thep. 9.
3 Pound, op. cit., p. 32. For full titles of this and
application of the concept, as, for exam- several opera citata indicated below see foregoing
article.
'See above, p. 95.
97
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
98
THE JOURNAL OF RELIGION
be a religious obligation. In actuality
utterances of the early poet-prophet-
these mores, with their divine sanctions,
philosophers, and with it were associalso (through kinship) gave special priviated the awe-inspiring conceptions of
leges of status to certain classes within
Zeus and Moira, Themis and Aidos, Ate
the group. This weighting of the "diand Atesthalie, Hybris and Nemesis,
vine" mores in favor of one's own people
Physis and Nomos.
and in favor of a particular class is by noUsing these mythical conceptions of
means peculiar to the Greeks, but it does
the divine ordering of the world as their
persist even into the most sophisticated
point of departure, the Greek philosoGreek thought.4
phers directed their attention to the
Among the Greeks these mores infirst principle of things, retaining always
cluded such practices as the taking something
of
of the mythical mentality and
an oath, the respecting of landmarks,
relating the first principle, however conhospitality and generosity to the weak
ceived, to the external physical world,
and the helpless, the faithful keeping to
of the principles of social organization,
property held in trust, the recognition
and to the principles of rational dialectic.
of a suppliant's or a stranger's rights,
Beginning with the unwritten law and
and proper burial of the dead. Zeus was
continuing on through the law-ordered
said to thunder at perjury and to avenge
cosmos to the laws of heaven of Sophothe suppliant and the sojourner. Other
cles and the eternal Ideas of Plato, we
gods were assigned respective jurisdicsee the morphology of the Greek contions. Indeed, the notion of allotment science
or
under the aegis of reason. Werner
the setting of limits was for the Greek
a
Jaeger
suggests that
central conception, referred to as "Moiwe must interpret the growth of Greek phi
ra" or "Fate." Penelope says to Odyslosophy as the process by which the original
seus: "The immortals have made for
religious conception of the universe, the con-
ception implicit in the myth, was increasingly
mortals a Moira for each thing."5 The
rationalized ..... Picture this process as the
"unwritten law," under divine surveil-
gradual shading of a great circle, in smaller
lance, and the ethos of the Homeric epic
concentric circles from the circumference to the
served among the Greeks in a fashion
center. Then it is rational thinking which in-
vades the circle of the universe, taking possimilar to that of the Decalogue among
the Hebrews.6 This unwritten law wassession of it more and more deeply, until in
Plato and Socrates it reaches the center which
is the human soul. From that point, the move-
the inarticulate major premise of the
4 For a recent discussion of the dichotomy bement spreads back again until the end of antween Greek and barbarian see Moses Hadas, "From
cient philosophy .... 7
Nationalism to Cosmopolitanism in the Greco-
Roman World," Journal of the History of Ideas,The
IV
ensuing discussion will follow this
(I943), Io5-II. Professor Hadas overlooks the fact
movement from circumference to center
that the contrast between the Hellenes and the bar-
and then from center to circumference,
barians did not become familiar until a relatively
late period (Thucydides Hist. i. 3).
as it affects the development of naturals Od. xix. 59I-97.
law theory. This is the story of the dawn
6 For a detailed discussion of the various meanand noon of the ancient pagan conscience.
ings and contents associated with the "unwritten
We turn now to review the process
law" and for a discussion of the conflict between the
whereby the invasion of the rational elewritten and the unwritten law see Hirzel, op. cit.,
ment into the Greek conscience took
pp. 3I-69. Hirzel shows how the theory of the un-
written law served both conservative and pro-7Paideia: The Ideals of Greek Culture (Eng.
trans.; New York, I939), I, 150.
gressive ends.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
99
order or justice.9 Anaximander drew a
place and whereby Greek conceptions
of law were interiorized-a process
parallelthat
between the human world and
culminates in the struggle between
the of matter. The physical elethe world
ments, like the citizens of the state,
allegiance to physis and the allegiance
to nomos.8 As we have already indicated,
"suffer the sentence of justice and pay
this process involves the successive
penalty
conto one another for their injusfrontations with the problem oftice."?1
the One
The divine penalty operates in
and the Many, as it appeared
both
innature
theand society as retribution.
metaphysical, in the ethical, andHeraclitus,
in the commonly (but inadequatemore narrow political area.
ly) characterized as the philosopher of
thephiloflux, held that "all human laws are
With the emergence of early
nourished
sophical speculation, the world came
to by one that is divine; it has
be viewed as a cosmos informed
a as it will; it suffices for
powerby
so much
unifying principle. It is difficult
deall to
things
and is superior to all." This
termine whether this unifying principle
divine law he calls Logos, though he also
was derived first from the observation
speaks of it as Fate. It is the structure
of nature and then applied to human
or harmony of the fundamental conrelations or whether the observed regutrasts of the universe and society. The
larities of human life were projected upPythagoreans, applying a theory of
on nature. In any event, the conclusions
numbers, characterized the "cosmos"
at which the early Greek philosophers
and justice in terms of geometrical proarrived concerning the world generallyportion and harmony (thus preparing
applied to the nonhuman as well as to
the way for the aristocratic Platonic
the human realm, both realms together
definition of justice and the state)."
being viewed as a cosmos under divine
9 For the passages quoted or referred to in this
law. In these discussions the concept ofparagraph see Arthur Fairbanks' anthology, The
physis referred to a unifying cosmic prin-First Philosophers of Greece (London, 1898), pp. 9,
37, 47, 137 ff.
ciple, but it was associated also with
1O Jaeger (op. cit., I, I59) asserts that the justice
moral and legal concepts, such as justice,
here referred to is the law of the Greek city-state
law, retribution, and harmony.
and that Anaximander's "idea of dike [justice]
Anaximander, Heraclitus, and the is the first stage in the projection of the lif of the
city-state upon the life of the universe." This view
Pythagoreans, for example, interpretedinterprets Anaximander as contributing to the mor-
the world and man in terms of a divine
alization of physis, which had earlier been consid-
8For a discussion of the meanings of theseered neutral. On the other hand, it is well to recall
terms see Greene, op. cit., passim, and for a bibliog-that Solon, the champion of the rule of law, used the
naturistic analogy of the wind driving away the
raphy of the whole subject see ibid., Appens. 8 and
clouds to show that "moral law is as certain as
31. Physis, at first "the specific character of a
natural law" (Greene, op. cit., p. 225).
thing," becomes "the sources from which all things
proceed," "the intrinsic and permanent qualitative Kelsen (op. cit.) has shown that the idea of retriconstitution of things," "what things really are,"bution permeates much of Greek thought down t
Plato.
"generation," "becoming," "the process of growth."
Sometimes the term is ethically neutral, at other r1 A. D. Winspear, in his Marxist interpretation o
times it is interpreted as the unifying physical and the development of Greek philosophy (The Genes
moral force of the universe. Nomos, first used toof Plato's Thought [London, I940]), characterize
represent the distinction between predatory beastsAnaximander and Heraclitus as proponents of "a
and men, becomes "ancestral custom," then "law" progressive, dynamic" social philosophy; since the
and "convention." It should be noted here that the
Pythagoreans appealed to divine sanction for a
Greeks "always couple custom and enactment;
theocratic monarchy and since "they rejected
things which today we contrast" (Pound, op. tit.,
arithmetical equality in favor of geometrical or
p. 25).
harmonic proportion as the clue to the meaning and
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
I00
THE JOURNAL OF RELIGION
From the beginning, then, the Greek
the latter part of the century (the years
philosophy of "nature" carried social
of the Peloponnesian War), many of the
implications. This was due not only small
to
city-states were compelled abruptthe mythical background and mentality
ly to change their laws and institutions.
and not only to the concern with the
Laws were now being changed before
early "unwritten law" of which we have
men's eyes. Because of such changes as
spoken but also to the fact that thethese, skepticism arose as to whether the
philosophers of "nature" took an acmany varieties of local custom and
tive interest in politics. In this respect
changing legislation were really a manithey may be compared to the Hebrew
festation of the divine and everlasting
prophets.
order of things. Are law and custom not
The events of the fifth century brought
man-made, some were asking, and are
this interest in politics to a sharp focus,
for they provided ample occasion for the
application of philosophy to politics. The
problem of the One and the Many presented itself in an imperative and critical form, for this century was a century
of great changes. A rising urban bour-
they not therefore merely artificial and
arbitrary? If they are merely man-made,
why should men obey them with a sense
of pious obligation? Others, continuing
geoisie, dependent upon the growth of
the slave trade, upon a new system of
production for the market, and upon a
new money economy, was dissolving the
older aristocratic society. This dissolution took place in the teeth of a conflict,
the consequence of which was to establish the polis as the explicit or implicit
presupposition of the discussion of physis
and natural-law theory in this period.
The colonizing activities of the previous
centuries and the consequent wider
travel, as well as the expansion of the
Athenian empire in the middle of the
century, also made for conflict and exercised an influence upon the intellectual ferment of the century. Contact with
foreign societies possessing very differ-
ent nomoi served to make men aware of
the transient character of all laws. Dur-
the interest in physis as the ultimate
unifying principle, asked: Is there not a
higher law beyond or implicit within the
diversity of actual laws and customs?
In short, an intellectual revolution ran
its course from city to city. The ruling
groups could no longer appeal to divine
authority when they saw demagogues
wilfully and viciously changing the laws
by means of "persuasion." The opponents of the ruling groups were, on the
other hand, critical of the privileged
classes who attempted to secure subone readily to understand the situation: "In its first
stage the kings decide particular causes by divine inspiration. In a second stage the customary course of
decision has become a tradition possessed by an oli-
garchy. Later, popular demand for publication results in a body of enactment. At first enactments are
no more than declaratory. But it was an easy step
from publication of established custom to publication of changes as if they were established custom
and thus to conscious and avowed changes and intentional new rules through legislation. The law of
Athens in the fifth and fourth centuries B.C. was a
ing the middle years of the century therecodified tradition eked out by legislation and individualized
had been a mania for settling all prob-
in its application through administration
of justice by large popular assemblies..... The
lems by making laws.12 Moreover, during
word nomos, meaning both custom and enacted law
as well as law in general, reflected the uncertainty
with respect to form and the want of uniformity in
tive" role.
application, which are characteristic of primitive
I2 Roscoe Pound's resume (op. cit., pp. 21-22)
law, and invited thought as to the reality behind
such confusion."
of the historical development of Greek law enables
nature of justice," he assigns them a "conserva-
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
IOI
mission by means of appeals to formulation
piety and the antithesis implies that
"the honorable
is one thing by nature
the wisdom of the ages. Thucydides
de-
and another
plores the intellectual and moral
chaos thing by law" (Plato Laws
889and
D). "Here
begins the revolt of the
that accompanied the revolution,
he
individual
explains it partially by the fact
thatagainst the arbitrary ways of
the social
group, a revolt which can find
"words were made to change their
ordino ultimate
nary meanings and to take on newly
im- sanction, no absolute law,
until it reaches an all-embracing society,
posed ones" (iii. 82). But the questions
evennot
Physis itself."I5
posed were serious questions or
and
The were
most subversive connotations of
mere word-play. These questions
not to be evaded unless philosophy
was
the view
described by Plato are frequentto be equated with "the unexamined
ly taken as the characteristic doctrine of
life"-the life which, according
Soc- But the Sophists possessed
theto
Sophists.
rates, is not worth living. And
if the
no such
unity of doctrine. Hence their
questions were not to be evaded,
views men
on the relative significance of nahad to incur the risk of securing
"dusty
ture
and convention varied. Their unity
answers," the more so when they
were,
resided
in a common interest in the purin the words of Meredith, "hot after
cerpose and
techniques of education; and
tainties" and new securities.
as educators they were concerned more
To the Sophists belongs the merit ofwith human nature than with physical
speculations. In the main, physis was by
having posed these questions in the most
them transferred from the universe at
radical form when they asked: "Is there
large to human nature. The Greek conanything that is valid everywhere and
science was moving one more circle in
always?" In dealing with this question
toward the mind and soul of man, tothey followed a logical pattern already
ward the interiorization of law.
established, and they employed terms
that were already well worn. The physi- In dealing with the theory of natural
cists of the previous decades and of thelaw, however, we cannot confine attenprevious century had made a contrast
tion to the views of the Sophists. Other
between the permanent substance of
men were, of course, also concerned with
things and their appearances.'3 In anal-the problems of conscience and with the
ogy to this contrast, there is now posited
problem of the nature of justice. Con-
one or another type of antithesis besidering the major attitudes expressed
tween what is valid by nature and what
in this period, we may classify the views
is accepted through law or usage, beon the question of the relation between
tween physis and nomos.'4 In its sharpest
nature and law in four groups: the view
(i) that law or convention alone can be
13 Cf. John Burnet, "Law and Nature in Greek
the rule of life-nature is practically irEthics," in his Essays and Addresses (London,
1930); Ernest Barker, Greek Political Theory: Plato
relevant; (2) that nature is the primary
and His Predecessors (2d ed.; London, I925).
ethical norm, superior and preferable to
I4 The transition from physical to ethical speculaw
as a sanction for conduct; (3) that
lation may be seen in the physiologos Archelaus,
nature is a nonethical norm that superpupil of Anaxagoras and teacher of Socrates, "who
sedes
is said to have applied the antithesis of nature
and law to the field of ethical ideas, proclaiming that
is
justice and baseness exist not by nature but by
convention" (Greene, op. cit., p. 222).
all law and convention, the good
only the powerful; and (4) that there
's Ibid., p. 226.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE JOURNAL OF RELIGION
102
is and can be no difference between nature and convention.
siderable vagueness here as to the content of natural law, but equalitarianism
Protagoras the Sophist, as teacher of would seem to be the principal specific
the art of political arete, set out to be a element.'7 In Plato's Protagoras (337),
defender of convention and ended by Hippias the moralist, of whom very
becoming the reputed father of ethical little is known, is made to say, "Gentlerelativism. He was, as Greene puts it, men, I hold you all kinsmen and friends
"not opposed to physis," but, in so far and fellowcountrymen, not of course by
as he considered it relevant at all, he law but by nature; for like is akin to like,
identified it with the native potentiali- but law, the tyrant of mankind, often
ties of man for growth. He held that man constrains by violence in contravention
in the natural state is incapable of peace of nature." Thus Hippias, perhaps the
and order; the political state is an ordi- first cosmopolitan and equalitarian, denance of God, and as nomos it requires duces from his appeal to physis, that
obedience if stability and justice are to valid law is the law of all mankind.'8 In
be maintained (Plato Protag. 324 ff.). He his view, current "democratic equality
was impressed with the educative signifi- is too limited, because it is valid only for
cance and power of early training and of free citizens of equal privileges and simipolitical institutions; and, as a teacher lar descent within one state. He would
of the sons of aristocrats, he believed extend equality and kinship to cover all
that conformity to the status quo, to the human beings."I9 Antiphon the Sophist,
laws of the polls, constitutes justice.16 in the fragmentary works On Truth and
On Concord, though warning against the
Hence law and convention become the
anarchy of rebellion against nomos,
criteria of justice. But he held also that
grounds
justice only on physis. "In every
man is the measure of all things, that is,
respect,"
he says, "we have all the same
knowledge is relative to the knower;
nature, Greeks and barbarians alike."
ty of the good. The consequence was
'7 Winspear (op. cit., pp. 84-III) presents evi-
this led him to assert the relativi-
dence to show
that, although he aimed to be a defender
that in the main line of development
from Homer to Plato, equality was at first intercould
set
preted as economic, then as political, and finally
of the established order, he
forth no principle whereby one was
setshunted
of aside in favor of the "wisdom" and
"temperateness"
of aristocracy. Cf. Thucydides'
nomoi might be judged as superior
to
reference to the opposing slogans, "the constitu-
any other.
In contrast to the view of Protagoras,
other Sophists appealed to nature as
against law and convention, with radical, if not subversive, consequences.
Like Protagoras, however, they located
physis in human nature. One finds con6 The author of Anonymus lamblichi takes a
similar position: it is through the necessity of men's
living together that laws and justice lord it over men.
Nomos and justice are a protection against tyranny.
tional equality of the many" and "the wisdom of an
aristocracy" (iii. 82).
'8 If Xenophon is to be credited, Hippias con-
curs with Socrates in holding that there are certain
unwritten laws observed in the same way in every
country. These laws cannot have been enacted by
men, they must have a divine origin (Mem. iv. 4).
But there is no mention of physis in this passage.
In connection with the theory of natural law, it
should be noted that the notion of "unwritten law"
continues to play a role, whether it be the unwritten
law apostrophized by Sophocles and Pericles, the
unwritten law here apparently supported by Soc-
rates, or the Aristotelian "unwritten principles
which may be said to be universally recognized"
dar, "Nomos is King of all," a line that in later
(to be discussed later).
times served as a sort of wax nose to be twisted
This statement is a variation on a theme from Pin-
according to the predilections of the twisters.
I9 Jaeger, op. cit., I, 324.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
I0o3
The proof is that all men breathe in
through
the coup d'etat of 403 after the defeat
the mouth and the nostrils.20 Alcidamas
of Athens.
the Sophist, with a somewhat similar at- In one respect an intermediate posititude, inveighed against slavery as contion is represented by Lycophron the
trary to the dictates of nature-"God
Sophist. He held a utilitarian contract
left all men free; Nature made no man
theory of the state considered as the
slave" (Schol. to Arist. Rhet. 1373 b I8).rule of egoism but of enlightened egoism.
Callicles, possibly an imaginary figure
He seems also to have regarded all social
or a disguised name, agreed with the
distinctions as mere names; moreover,
Sophists last mentioned, at least to thein his view, natural equality invalidated
extent of favoring nature as against law
all hereditary privileges.
and convention. But in the name of na-
Thrasymachus the Sophist and rhetor
ture he supported the natural inequality
seems to have taken a position com-
of men. In his view, so-called "just"pounded of cynicism and a sense of the
positive law is an invention of the weak
will to power. In contrast to the vulgar
to obviate the natural rule of the strong
Nietzscheanism of Callicles, he held that
and is thus in violation of nature.2'
the established order is a direct expresBy the rule of nature, that only is the more
sion of the power of the strong. "The indisgraceful which is the greater evil-as, for
terest of the established government is
example, to suffer injustice; but by the rule of
just." Hence "the conclusion of right
custom, to do evil is the more disgraceful. For
reasoning
is that.... the interest of the
this suffering of injustice is not the part of a
man, but of a slave .... Among men as wellstronger is everywhere just" (Rep. 338as among animals, and indeed among whole39). Although the word physis is not used
cities and races, justice consists in the superior
in
ruling over and having more than the inferior
[Plato Gor. 482-83].
any passage dealing with Thrasym-
achus, the effect of his point of view is
to assert that what is, is natural; the law
belongs to and is in possession of the
Hence the "unnatural" positive law can
strong.
lay no valid obligation upon the strong.
Here is expressed the spirit of the aristo- In all this criticism and transforma-
cratic counterrevolution that appeared
tion of traditional conceptions of law
and nature, established forms of belief
20 Cf. Hippocrates, On Airs, Waters, Places,
and society were in danger of being pulwhere human differences are attributed to geographic and climatic conditions alone. About the
verized.22 The process of pulverization
same time Thucydides seems to have come to the
was, as we have indicated, hastened by
conclusion that the differences between men are
the great political and social changes of
due to their possession or nonpossession of rational
control over emotion, a condition that is amenable
to education. C. N. Cochrane views this position22asWilliam Seagle (The Quest of Law [New York,
I94I], p. 200) says of the period of the later Sophists,
a "middle" one between the typical Herrenvolk
after the Peloponnesian War: "That the doctrines
conceit and the physis-sanctioned egalitarianism
ofApthe Sophists were put to practical use in litigation
of the Sophists ("Federalism in Antiquity,"
be surmised from the fact that they undertook
proaches to World Peace, ed. Lyman Brysonmay
et al.
to teach those who had to plead before the popular
[New York, I944], p. 45).
heliastic courts. Since the Athenian system of administering justice did not encourage reliance on prec21 Cf. Critias' view (as set forth in the Sisyphus)
that the gods are an invention of wise men for
the it was easy to appeal to the laws of nature"edent,
and, we might add, for better or for worse. Indeed,
better security of social life against the secret
imagining of evil, whereas the laws of state,
thealso
outcome could very easily be for the worse,
instituted by the wise, prevent the open manifestasince cases were frequently decided according to a
tion of evil.
special rule made for the case in hand.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE JOURNAL OF RELIGION
I04
the century. But in the morphology the
of same points everywhere." Plato presents
conscience, pulverization represents
a Socrates somewhat differently. In
the Apology (29 D), Socrates is made to
negative element. The Sophists made
little headway in the formation of posisay: "If you should offer to let me go on
tive principles. The "Law of Nature,"
condition that I stop philosophizing, I
as we have seen, was in the hands of the
should say to you, 'Men of Athens, I respect and love you, but I shall obey the
Sophists a precarious substitute for the
conventions. As Ernest Barker says,
god rather than you.' "24 Yet Socrates
"It is constant only as a negative; and
believed it is better to obey a defective
in not being what Convention is: itlaw
is and suffer injustice under it than to
inconstant, and indeed inconsistentweaken
as
respect for law by disobedience
a positive, and it may be used some(Crito 50A). Although he eschewed
times to condone master-morality, and
physical speculations as leading only to
sometimes, in the opposite sense, to conuseless and futile variety of opinion, he
demn slavery."23 Plato has excoriated
did use the word physis, relating it to
certain of the Sophists sufficiently for
natural endowments of man and beast,
their intellectual and ethical irresponsito the nature of things, and to divine
bility in these matters. On the other
providence. To Callicles, for example, he
hand, he is not disposed to recognize the
responds: "Not only custom but nature
fact that the Sophists were in certain affirms
inthat to do injustice is more disstances protesting against rank "convengraceful than to suffer injustice, and
tional" exploitation, arbitrariness, and
justice is equality" (Gorg. 484). With
injustice. Moreover, it must be observed
Socrates, then, both the nonethical view
that the Sophists, through their whetting
of "nature" and the sharp antithesis beof the instruments of rational dialectic,
tween physis and nomos were rejected.
prepared the way for new modes of anal"What is truly good is, even for Socrates,
ysis and of social criticism. Hence,inherent
by
in the actual nature of things;
them, reason was more and more being
even nomos, at its best, is therefore
led on its invasion into conscience and
rooted in physis, and the antithesis
into confrontation with the problem exploited
of
by the sophists is on its way
the One and the Many. The law of cauto being resolved in a 'law of nature.' "25
sality was being separated from the ideaThe basic assumptions of Socrates'
of law as a norm.
Socrates raised the discussion of this
approach to the problem of the One and
the Many are familiar. Particularly
problem to a new level of precision andcharacteristic are the presuppositions
of ethical integrity. Through the method
that the good and the just are intelli-
of inductive reasoning and "universalgible; that through rational dialectic
definition" he sought to apprehend man
a
may rise above changing mundane
law of justice that is higher than positive
impulses and conditions to achieve the
law and more reliable than "opinion."
24 A similar preference for the unwritten laws of
We have already referred to Xenophon's
heaven as against legal enactment is expressed by
Sophocles. "Olympus is their progenitor alone; the
report of the Socratic definition of the
unwritten laws as those "in force about
god in them is strong and groweth not old" (Oedipus
the King xi. 863-71; Antigone ii. 446-60). Aeschylus
also presupposes a belief in a fixed and just divine
23 Op. cit., p. 75. See this chapter also for an acorder in the world.
account of the attack of the Sophists upon religion
and the family as creatures of convention.
25 Greene, op. cit., p. 275.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
Io5
knowledge of the good; that this knowlposition to the blind prophets of the
edge will issue in virtue; that theMany-the
good
Sophists who say that "the
should be defined in terms of use and
principles of justice have no existence at
purpose; and that the world is underall
a in nature" (Laws 889 D), he sets
divine providence. Ultimately the Soforth a philosophy of objective idealism
cratic reason looks beyond philosophy
which "saves the appearance" of muland beyond the polls to a divinely given
tiplicity and provides a sort of natural-
insight into the providential purpose
law basis for justice.28 Taking as his
which all things serve. With respect to
point of departure Socrates' confidence
both man and the universe, he has that
a
reality and the good are intelligible,
fundamentally optimistic outlook. he
In develops his doctrines of participa-
the words of Burckhardt again, Socrates
tion and separation. According to the
"is aware of a mythical or holy origin"
former doctrine, being and thought parof his insight, though the conception imticipate in a realm of eternal Ideas; acplicit in the myth is on the way to being
cording to the latter (an Orphic-inspired,
rationalized.26
tragic doctrine) it is the destiny of the
It is clear from the Euthyphro, not soul
to to "fall" from the realm of ideas,
speak of the Apology and the Crito, and
migrate to earth, and there undergo
also from Socrates' frequent references
purgation by fate and effort. This Orphic
to his daimonion that for him the reli-
doctrine is related also to a doctrine of
reminiscence of ideas.
gious obligation to obey the positive law
rather than commit injustice, as well as The good is the supreme and eternal
the obligation dialectically to achieve
idea which is, at the same time, an ontothe knowledge that is virtue, is relatedlogical and a value principle, the rule of
to a profoundly ethical life of piety inpersonal life, and the "end" of the state.
devotion to the public good. And for this
The ultimate meaning of life is found in
piety he made the supreme sacrifice, proa conception of telos, becoming like God;
claiming confidently that nothing eviland this telos is related to the "soul" of
can happen to the good man. To Socrathe world, as well as to the "soul" of
tes, physis could be apprehended only
man. In the intelligence and purposivewhere ethos was equal in importance toness of "soul" in man and cosmos, Plato
nomos and logos. Physis can be found in
finds the explanation for both the moand beyond nomos, but only by the man
tion and the order of physis; soul is,
who knows himself and tends the soul.
however, created by Nous (Phil. 30 b)
"The dialectical expression and explana-or by the Demiurge (Tim. 34 c).
tion is founded on the living example of The realization of the good in the
those who continually fulfil the meaning
harmony of the state he calls "justice."
of the polis community."27
Since thought is a form of participation
With Plato, the Greek genius, as it
in the realm of Being, the just law of the
confronts the problem of the One and
perfect state is accessible to man by
means of rational dialectic. But this law
the Many, is manifest in all its remarkof Plato's is not a law that can be disable power of abstraction and its unsur-
passable command of language. In opcovered (or, rather, "recollected") by
the untutored reason of the ordinary
26 See above, n. 2.
27 Julius Stenzel, Metaphysik des Altertums (Ber- 28 For a succinct summary of Plato's philosophy
lin, I931), p. Ioo; quoted by Mayer, op. cit., p. I9. of law see Kessler, op. cit., pp. 35-39.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
io6
THE JOURNAL OF RELIGION
man. The majority of men must accept24) he proposes that the legislator, formit through assent to the teaching of the
ing a bridge between the trained philowise, though, to be sure, the career of
sophic mind and the rule of law, should
philosopher is open to all. Only when the
affix to each law a preamble enunciating
state is built upon these eternal facts of
the principles upon which it is based. He
human nature can it exist according toasserts also that the lawgiver, if he is a
nature. Only when the community retrue lawgiver, should defend the claim
ceives service from all men according of
to law itself and of art to be natural, or
their abilities can the good and the just
no less real than nature, seeing that they
be known and achieved. There can be
are products of mind by sound arguno justice in a community in which there
ment (Laws 280).
is equality among men who are by na- By means of dialectic, then, Plato
ture unequal. Indeed, consent of the govmoves from the world of the Many, the
erned is not just; the "medicinal lie" and
world of becoming, to the world of the
censorship are proper instruments of gov-One, the Being of the eternal Ideas. And
thence he moves back to the world of the
ernment. The individual may or may not
approve. Except for the wise rulers, allMany. Having reached the center where
men should surrender the right of privatethe human soul envisages and partici-
judgment. Otherwise, appetite and not
pates in the eternal ideas, he starts the
reason will become the ruler. Just as the
reverse movement of which Jaeger has
soul's harmony is achieved only throughwritten so felicitously.31 The essential
the rule of a hierarchy of faculties, sostructures of the world, of society, and
of the human soul are thus related to one
also the harmony of the state requires
hierarchical structure. Physis therefore
another in the chain of being which definds its expression in the organic har-pends from and aspires toward the world
mony of the soul writ large in the organicof the eternal Ideas.
harmony of the state.29 Accordingly, In the Platonic ideal state of the Laws
justice is both an individual and a socialnothing is left to chance. The greatness
virtue.
of the state is measured by the extent of
In the Republic Plato prefers the flexits authority, by the omnipotence with
ible intelligence of the philosopher-king
which it suppresses all resistance, all
to the impersonality of the rule of law.
dissidence, every idea of independence
Law is sovereign only in the second-best
for the family and for individuals. Plato's
state, but it is just only in so far as it is in
conception of law therefore later became
accord with nature.30 In the Laws (7I8-a sanction for persecution and for the
primacy of the "spiritual" power over
temporal.32 It gives Plato no cause
questioning the justice of slavery;
29 This doctrine of harmony was no doubt in-
the
fluenced by the Pythagorean doctrine of proportion,
According to this doctrine, "law ought to be in con-for
formity with nature and it will be if it is made in
nor does it reveal any deep concern for
the image of natural law which attributes to each
the individual apart from his functioning
according to his merit" (E. Burle, Essai historique
sur le developpement de la notion de droit naturel
in the state. Plato directs his attention
dans l'antiquite grecque [Trevoux, I908], p. 86).
toward providing a sanction for the dis-
30 In the myth of the Statesman (271-72) the
charge of social duty in a hierarchical so-
second-best state is presented as the result of a "fall"
from the state of nature in the Golden Age. It must 31 See above, p. 98.
not be supposed, however, that Plato has any 32 On this aspect of Plato's political philosophy
sympathy for the theory of the Noble Savage.
see Burle, op. cit., pp. 322-23.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
I07
says that the burial of Polyneices was a just
ciety and not toward furnishing a proact
tection of the rights of the individual. in spite of the prohibition; she means that
it was just by nature.
This indifference to what the modern
man calls "personal liberty" and "pri- "Not of today or yesterday it is,
vate rights" is characteristic of the polit-
ical philosophies of Plato and Aris-
totle.33 The co-ordination of "church"
and state in Greece is a manifestation
of this same indifference.
But lives eternal; none can date its birth."35
The more influential of Aristotle's dis-
tinctions with respect to natural law is
to be found in the Ethics (v. 7). Here he
seems to be concerned with the distinc-
Aristotle rejects the antithesis tion
of between law and rules of law, a disphysis and nomos as a merely rhetorical
tinction made also in the pseudo-Pladevice (Soph. elen. chap. 12). In his
tonic dialogue, the Minos. Disregarding
the sophistic contrast between natural
view, man is by nature (i.e., essentially
and in his "end") a political being, and
lawn and positive law, he concerns himthe state is a necessity of nature.34 A soself with what is just in itself, with what
is just by nature and in its idea. He idencial instinct is implanted in all men by
nature (Pol. 1253 a). Instead of adopting
tifies "natural justice" (physikon dikaiPlato's method of rational introspection
on) with "that which everywhere has
and his conception of an eternal law
the same force and does not exist by
above the law of the state, Aristotle ospeople's thinking this or that." The
tensibly employs the inductive method.
rules of "conventional justice" deal with
matters that are originally indifferent
Yet he makes a distinction between paror indeterminate until some rule is laid
ticular law and universal law. He says:
down by legislation.
Particular law is that which each community
lays down and applies to its own members; 35 Rhet. I373 b. Rudolf Hirzel (op. cit., pp. 20 ff.)
this is partly written and partly unwritten.
marshals evidence to show that the Aristotelian
Universal law is the law of nature. For there
definition here reflects a new extension of the meaningaof the unwritten law, an extension that was
really is, as every one to some extent divines,
in the time of Thucydides and for which
natural justice and injustice that is bindingeffected
on
the funeral oration attributed to Pericles (ii. 37)
all men, even on those who have no association
represents an older authority than Aristotle's
or covenant with each other. It is this that
Sophocles' Antigone clearly means when she Rhetoric. According to this extended application of
the concept, the unwritten law may be spoken of
not only as belonging to a particular people but also
33 In this connection see Jaeger's discussion of as valid, in a universal form, for all men; it enjoins
the dependence of Plato's and Aristotle's political faithfulness to the divine precepts as something holy
philosophies upon the aristocratic culture of the and as something placed under the special protection
early city-state. "In the Laws Plato constructs .... of the gods, and the violation of it universally brings
an old Hellenic cosmos based on law, a city in which shame, if not punishm'ent. This distinction between
all spiritual activity is referred to the state as the unwritten law of a particular people and the un-
final ....A purely private moral code, without written law for all men persists, as Hirzel shows,
reference to the state, was inconceivable to the
down to Philo. On the basis of Hirzel's discussion,
Greeks" (op. cit., I, I1o-II, 323). Here again we see Rudolf Eucken (Encyc. of Religion and Ethics, art.
natural-law theory being inluenced by historical "Law, Natural") concludes that the concept of
contingency. See also G. H. Sabine and S. B.
natural law which was "previously equivalent to
Smith, On the Commonwealth (Columbus, 1929),
traditional usage and custom" is now "taken in the
pp. 9-o1; Introd.
sense of a law written in the human heart." (In this
connection it should be noted that "Democritus
34 As Jaeger points out, Aristotle here differenti.... attributed a new importance to the old Greek
ates man "from animals by his power of living in concept
a
of aidos, secret shame, and replaced the
state: he is in fact identifying humanitas, 'being
aidos which men feel for the law-the feeling which
human,' with the state" (op. cit., p. IIo).
had been annihilated by sophistic critics like Anti-
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
Io8
THE JOURNAL OF RELIGION
ture also some men are fit for rule, others
Despite Aristotle's apparent rejection
of Platonic idealism (as well as of the
earlier mythical mentality), his concep-
only for subjection.37 Aristotle's political
theory, like Plato's, is a class theory of
than the admission that certain ethical
Aristotle's typically Greek sense of su-
the state. It should be noted also that
tion of natural justice involves more
or legal principles are everywhere acperiority to the "barbarians" was in no
cepted. It implies a rational design way
in disturbed by his theory of natural
the universe which fulfils itself partially
law. He regards the Greeks as a Herrenvolk and stigmatizes the barbarian as a
in the proper functioning of the state.
"natural slave."
Natural justice is therefore both an immanent quality and a transcendent goal The political philosophies of Plato and
Aristotle exercised no immediate effect
toward which human justice tends
(Ethics v. 7).36 On the other hand, he of a theoretical or a practical kind. In
does not assert that the rules of natural
this respect they can be described only
justice, as found in human society, are
as "a magnificent failure." "The twiconstant. "With us there is something
light of the city-state" was upon them,
that is just even by nature; yet all of it
and political liberty as these philosophers
understood it was to die.38
is changeable" (ibid.). Laws and constitutions are subject to the exigencies of The Cynics, taking up and developing
history. Indeed, in certain respects Aristhe ideas of certain of the Sophists, raditotle here anticipates the modern concally rejected the notion of the natural
ception which refuses to make a sharp
superiority of the Greeks to the barbariantithesis between "historical" theories
and "natural-law" theories. Yet to him
ans. In contrast to their predecessors,
however, they attacked and abandoned
one thing does seem quite fixed, namely,
the ideal of the city-state. Their attithe "natural" inequalities of men. tude
He was partially compounded of disemphatically rejects all equalitarian docillusionment and despair. They have
trine, and he calls the slave by nature
a called "the antinomians of the
been
domestic animal, a living tool. By naGreek world," for they were indifferent
not only to the city-state but also to dis-
phon, Critias, and Callicles-with the wonderful
tinctions of property, status, sex, family,
idea of aidos which a man feels for himself" [Jaeger,
nationality, and freeman and slave. All
op. cit., I, 328]).
these "unnatural" conventional distinc36Aristotle (like Plato) distinguishes, of course,
between the law of natural justice and the lawtions
of
are reduced to a dead level. All innecessity in nature. His concept of nature is stitutions
deare viewed as artificial. Na-
fined in the context of his teleology; it is a descripture for them is the negation of "unnatution of the intrinsic character of a thing by refer-
ence to its complete development. What Eduard
ral" distinctions. The wise men of the
Zeller has to say concerning the relation between
world, who are morally and intellectualrepresent the true citinature
zenry of the world. Diogenes announces
teleology and this conception of the law of causality
is worth quoting at length: "With Plato and Arisly self-sufficing,
totle the necessity to which the processes of
are subject is stressed with great emphasis, though
to be sure they subordinate this necessity to the
37 For a discussion of the significance andj influpurposeful activity of nature and allow only that
ence of the Aristotelian view of natural inequality
to be governed by it which serves the natural pursee A. J. Carlyle, A History of Mediaeval Political
pose as an essential condition of its realization.
But they present this necessity not as a 'law' of
Theory (New York, I903), I, 7, I2.
nature; this name they reserve exclusively for the
38 G. H. Sabine, A History of Political Theory
norms of action" (op. cit., pp. 5-6).
(New York, I937), p. I23.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
log
that he is a citizen of the cosmos, avine"
com-savior-king and for absolute monarchy with its military institutions, its
pletely unreal world of rugged individualism.39 Their outlook implied no posipolitical obscurantism, its brutality and
oppression.
tive political theory or practice beyond
a projected communism or anarchy, The
butearly Stoics gave philosophical,
they prepared the way for the Stoic
if connot political, expression to the new
ception of equality and world citizenship.
cosmopolitan orientation. Taking as
With the rise of the Macedonian emtheir point of departure the Cynic lack
of concern for the city-state (and in some
pire and the consequent decline in signifi-
instances even holding that all men
cance of the city-state, a cosmopolitan
sense of the unity of humanity begins
should live herdlike, without respect for
conventional
distinctions of status, famiradically to qualify or replace the
old
city-state loyalties. The idea of the ly,
unity
sex, wealth, and nationality), they
of humanity was perhaps given aassociated
deci- the idea of the unity of husive impetus by the world-transformmanity with the earlier Heraclitean coning accomplishments of Alexander
the of Logos, with the ethical and
ception
Great.40 The new orientation to a spirituteleological ideas of the classical period,
al world community rather than to
andthe
with the Cynic equalitarianism of
city-state marks a sharp dividing line
in Not only the terms Logos and
the wise.
the history of natural-law theory.Pronoia
This are decisive but also the terms
world community was, after a fashion,
physis and nomos. In later Stoicism these
confirmed by the Alexandrian far-flung
last-mentioned terms are joined in the
empire. It was recognized by the geograterm nomos physikos, an expression that
phers who had begun to study and in
chara general way corresponds to the Latin
acterize the inhabited world as an oikou-
ius gentium. (It is also an expression
mene, that is, as a single unit. It couldwhich Aristotelian usage would not per-
also later be associated with the Hellen-
mit.)41
istic conception of kingship and of the In response to the Skeptics, who had
common (or king's) law, according to
denied the possibility of knowledge and
which the king was viewed as an anihad thrown doubt even on the reality of
mate law, a personalized form of the
existence, Zeno asserted the reality and
principle of law. Here an archaistic reknowability of the world: all men particivival of mythical conceptions of divine
pate in the world-soul of the cosmos, a
origin is to be discerned-a revival that
Logos, a physis, a law that shapes all
prepared the way for the cult of the "dithings to its ends. This law is found in
the rational interrelations of things, in
39 Cf. Cochrane, op. cit., pp. 48-49.
the rational system of logical norms
40 Cf.lW. W. Tarn, "Alexander and the Idea of the
found in the human reason, and in reaUnity of Mankind," Proc. Brit. Acad., XIX (I933),
123-67. Tarn argues that the philosophers took son
up itself, which is the universal bond of
the idea of the unity of mankind from Alexander,
all who submit to it. It is innate in man,
who definitely set out to produce a "union of hearts."
who perceives it by means of intuitive
In connection with Tarn's thesis one may recall
the statement of Plutarch that "Alexander realized
preconception, later to be called "com-
the Cynic ideal on its political side by the foundation
mon notions." Because of his reason,
of his universal empire."
man
is said to possess a unique relation
Alexander's alleged desire for "a union of hearts"
should not blind us to the insatiable lust for power 41 Sir Frederick Pollock, Essays in the Law (London, 1922), p. 33.
in Macedonian imperialism.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE JOURNAL OF RELIGION
IIO
to God and to other men. The animals,
expressed in the harmony of the state.
on the other hand, are endowed with the
By virtue of the Law of Nature, both
instinct of self-preservation and do not
men and gods are citizens in a world-
share the rational relationship to God
community-the society of man must
and to each other. Thus the Law of Na- be as wide as the divinely given Lesson
ture is a universally valid rational law
upon which it is based. This law is the
resting in the nature of man and in the
law of right reason, which is the standconstitution of the universe. It pos-ard everywhere of what is just. It is the
sesses ontological, as well as normative,same everywhere, and it is binding upon
status. "The universal law," writes
rulers as well as upon the ruled. Although
Zeno, "which exists in right reason andmost men are fools, all men are potentialwhich pervades everything is identical
ly equal under God, and, no matter what
with Zeus, the guider of world order."
their social status, they all stand on their
Reason, nature, and God become almostmerits. The only distinction that counts
synonymous terms. The distinctions ofis the distinction between the wise and
classical philosophy are ignored, and as
the foolish. Hence the ordinary convena result Stoicism exhibits a retrograde
tional distinctions between men are of
tendency toward an uncritical and inconlittle or no account.
sistent pantheism.42
Clearly, early Stoicism was at first not
To live "according to nature" is a dutyso much a directly political philosophy
incumbent upon every man, and by fulas a way of life for the individual. Confilling this duty men achieve a wise selfsequently, it had no immediate and disufficiency and individual well-being. If
rect effect on politics. Yet the full dignity
the pantheism of the Stoics was ambigu-originally ascribed to the wise alone
ous and inconsistent, their ethical idealserved to enhance the intrinsic human
was also fraught with tension, for it proquality of all men,including slaves. Chryduced both an aloofness from the world
sippus, flatly contradicting Aristotle, says
and a moral earnestness for active par-that no man is by nature a slave; the
ticipation in the world. In contrast to
slave should be treated as "a perpetual
Plato, however, individual goodness and
wage-earner." On the other hand, the
wisdom do not for the early Stoic depend
doctrine of the equality of men, so far
upon the collective goodness and wisdom
from subverting established institutions,
42 The Stoic view led to a pantheism in which the
was later adapted to Roman aristocratic
law of causality in nature and the Law of Nature,
principles in the doctrine of "the station
a divinely grounded rational-ethical principle, were
confused. This confusion had been, for the most
and
part, avoided since the time of Anaxagoras. For a
its duties." And, still later, Seneca
con-read the Law of Nature back into the
concise statement of this confusion and of the
sequent necessitarian and fatalistic elements in
Golden
Stoic doctrine see Zeller, op. cit., pp. 6 ff.; see also
R. D. Hicks, Stoic and Epicurean (New York,
Age (Letters 90).
Nevertheless, the central Stoic concepof natural law, with its stress on the
191o), pp. 82 if., for a description of the ambiguities tion
of Stoic terminology and also of the circularity of
unity of mankind and on the potential
Stoic reasoning.
equality
of all men before God, must be
With the Stoics we find the typical Appollonian
identification of nature with reason, the inclosing of adjudged
one of the great decisive con-
man within reason, the consequent misunderstanding of human freedom, and the cutting-off of man ceptions of Western civilization. As
from deeper and higher vitalities.
Ernst Troeltsch expresses it, we find here
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
III
in the place of positive laws and morals
an philosophy in the transition
tact with
ethic derived from the universal validity of rea-
from strict law to the stage of equi-
son; in place of national and local interest, the
ty.45 Hence
"the Stoic creed was better
individual imbued with the divine reason;
in
adapted
place of particular political associations,
the for Rome than for the land
whenceofit first arose."46 The practical
idea of humanity regardless of differences
state and place, of race and color.43
genius of Rome, which was bringing all
races
under its control, and the speculaThese universalizing tendencies
exertive
genius
cised a marked influence upon Roman of Greece, which had imbued
the
jurists of the early formative period
thought and life and upon Roman
jurisof
Roman
prudence. Roman conceptions of urbani- legal development, joined to
ty, of the duties of citizenship in produce
a worldthat fusion of philosophical
principles
community, of equality before the natu- with Italic law and with the
laws of the new jurisdictions-a fusion
ral law, of slavery, and of the position
that became the legacy of Rome to the
of woman were all affected.
Western
Although the early Stoic conceptions World. Again, the problem confronted was the problem of the One and
of the Law of Nature and of the world
the Many, the problem of developing
state were not primarily concerned with
standards
of right reason for application
political institutions, they became so in
to
the
changing
and multiple conditions
the Middle Stoa under Panaetius, who
of life.
was stimulated both by the skeptical at-
tack of Carneades upon the early Stoic Cicero, largely under the influence of
psychology and natural-law theory andPanaetius and drawing upon a practical
by his opportunity to influence theexperience far surpassing that of any
earlier theorist, became the principal
Scipionic Circle in Rome. For Panaetius
the Law of Nature is immanent and not purveyor of Stoic natural-law theory to
the Roman jurists.47 It should be noted,
transcendent. It is no longer the bond
of a nebulous and hypothetical commu-however, that his influence on legal
theory was probably not immediate. At
nity of wise men; it is, rather, an ideal
that informs existing states and laws, all
a events, it was two centuries later that
Roman
law came to its maturity. Under
ground for the criticism and correction
Salvius Julianus reduced the
of positive law. The state, in so far as Hadrian,
it
unwieldy Edicts of the Praetors to
is defensible, is no mere assertion of ausomething like a system. The work was
thority, it is an expression of justice and
carried on under the Antonines, with the
right.
The Greeks had laws, says Dean principle of equity making itself felt; un-
Pound; the Romans had law. Greek law
had retained the character of primitive
law in that it was "uncertain with re-
4s Pound, op. cit., p. 26.
46 Mommsen, History of Rome, IV, 201, quoted by
C. H. Mcllwain, in The Growth of Political Thought
in the West (New York, I932), p. I06. Mommsen
spect to form" and was lacking in "unigives as the main reason for this adaptability, the
fact that the leading feature of Stoicism had come
formity of application."44 Roman lawto be "its casuistic doctrine of duties."
yers, on the other hand, came into con43 "Das stoisch-christliche Naturrecht und die
47 We omit here a discussion of Philo's theory of
natural law which combines ideas drawn from his
modere profane Naturrecht," Gesammelte SchriftenHebrew heritage, from Aristotle, and from the
(Tibingen, I925), IV, I75.
44 Above, n. I2.
Stoics. Hirzel (op. cit., pp. I6-I8) gives the perti-
nent references to Philo's writings.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
112
THE JOURNAL OF RELIGION
fact determines the vocation of man. The
der the Emperor Severus, the last of the
command of reason and justice rests, on
great classical jurists-Papinian, Ulpian,
and Paulus-completed the compilation.
the one hand, upon the providence of
This was the heyday of Stoic influenceGod and, on the other, upon innate inon Roman law.
tuition and the instinct of self-preservaIf Socrates and Plato based their natu-
tion.
ral-law theory on the general concept and Despite this seeming partial approach
on the ideal of the Greek city-state andto utilitarianism, Cicero denounces that
if Zeno founded his on the individual subdoctrine, especially as it appears in the
ject in a world community of the wise writings of Epicurus. Not utility but naand the gods, Cicero grounded his in a ture is the source of justice and law; nor
social consciousness formed by the phil- is right based on men's opinions but uposophical genius of the Greeks and by on nature (De leg. ii. 14-16). This is the
the practical desire, on the one hand, to immutable law of right reason from
which neither the senate nor the people
can release men. "It needs no interpreter
Roman tyranny and, on the other, to reor expounder but itself, nor will there be
sist the reforms demanded by the Gracone law at Rome and another at Athens,
chan party.48 He restored from classical
one law now and another hereafter, but
Greek thought what had been lacking in
the same law everlasting and unchangeearly Stoicism, the religion of public
defend constitutionalism in the face of
service. In his view nothing is more pleas-able": its framer and purposer is God
(De rep. iii. 22). All true law is but the
ing to God or more of a blessing to man
expression or application of this eternal
than the endeavor after justice through
human association under law. "We are
law of nature. Reason did not become
law when it was written, but when it
born for justice," he says; and the very
was
meaning of life is realized in the pursuit made; and it was made at the same
time as the mind of God (De leg. i. 5of it. Cicero is the symbol of this convic23;
tion in Roman civilization, and this mayii. 4-7).
be said to be his contribution to the leg-In his definition of the content of natuacy of Rome.
ral law, Cicero, like the Greeks and like
This conviction Cicero rooted in an
many philosophers of natural law, is given to vagueness. The term "nature" is
adaptation of the Stoic idea of natural
law and in a theology of politics. used
All in a variety of senses, and the con-
tent of the natural law usually does not
nature is ruled by God. In their possesgo beyond elementary moral rules (De
sion of reason and a sense of justice, men
inv. ii. 22. 65 ff.; ii. 53. I6I). One thing,
are akin to God and to each other; they
is clear. Following the Stoics
participate in the ultimate principleshowever,
of
law by which He rules the universe. This
and in opposition to Aristotle, he insists
that all men are by nature equal. "Rea-
48 See the discussion of this point in Sabineson
andwhich alone raises us above the level
Smith, op. cit., pp. 32-33, where it is indicated that
of the beasts and enables us to draw inCicero and the Scipionic Circle were opposed to the
policy of the Gracchan party, a policy thatferences
was
.... is certainly common to us
"manifestly an appeal to divergent class-interest,
all, and, though varying in what it learns,
the object being to weaken the senatorial group by
least in the capacity to learn it is inextending the influence and the privileges ofat
the
equestrian order."
variable" (De leg. i. io. 28 ff.). It is vice
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
II3
tive
Roman tradition, Cicero makes
and wrongdoing, not nature, that
progreat and positive affirmations. The law
of reason, he says, demands the consent
Cicero's generally optimistic doctrineof the assembly, every citizen should
of man does not make him ignore the
have some share in the control of public
fact of human perverseness. Quite inlife through the bond of law and right
duce inequality.49
It should be noted, however, that
reason. And since law is coeval with God,
consistently he says: "Such is the corruption of evil custom that by it, so to speak,men have rights antecedent to and independent of the state. A state is nothing
the sparks [of reason] given by nature
are extinguished [igniculi extinguantur else
a
than "a partnership of law" (De
natura dati]" (De leg. i. 12. 33; cf. also
rep. i. 32). Here we see adumbrated the
Tusc. disp. iii. I). Although "we are by
general principles of government with
nature disposed to love our fellowmen"which Cicero's signature will always be
and although this natural disposition isassociated: "that authority proceeds
"the foundation of law" (De leg. i. I5.
from the people, should be exercised
43), there are men not so disposed, andonly by warrant of law, and is justified
their behavior makes it necessary for the
only on moral grounds."'5
state to restrain them (De rep. i. 25; iii. With Seneca the prevailing degradai; De leg. ii. I, 2; Tusc. disp. i. 13. 20).
tion of society is set in contrast with a
(This view anticipates a later Christian
supposed primitive innocence of mantheory that the state is a necessary means
kind. In the early ages of the world there
of coercing the wicked.) The inconsist-were, in his view, no states or property
or other forms of dominion over men.
ency here is left unresolved.
Cicero's doctrine of equality does notThe present political institutions of solead him to espouse democracy. Far
ciety are either the consequence of man's
from it. Indeed, there is some justificafall or remedial coercion made necessary
tion for the view that "the eternal and
by that fall. Seneca's theory of the conuniversal law of nature proves to be
trast between man's present state of deg-
simply the law of Rome....."5.' The
radation and his primitive innocence
theory of equality does not preclude the
had, in its influence, the effect of placing
necessity of gradation of merits or ofemphasis
a
on the difference not merely
between the ius naturale and the ius
mixed constitution (monarchic, aristocivile but even between the ius naturale
cratic, and democratic). Social classes
remain, as does slavery, though, to be
and the ius gentium.52 It was later taken
sure, the slave is to be treated "justly."
up by the Christian theologians and asYet, to continue Cicero's metaphor,
similated into early medieval concepin the words of Shakespeare: "How hard
tions of the state, slavery, and property.
it is to hide the sparks of nature!" At
Thus it represents an anticipation of the
least in Cicero. Despite the slings and
later Christian distinction between (what
arrows of an outrageous human nature
Troeltsch has called) relative and absolute natural law.
and despite his attachment to conserva-
The term ius gentium appears first in
49 See especially Lactantius (Ep. 1 (Iv). 5-8) for
the writings of Cicero,
Cicero's criticism of Plato's and Aristotle's theory
of natural inequality.
5s Sabine, op. cit., p. I67.
so W. A. Dunning, A History of Political Theories,
Ancient and Mediaeval (New York, 1919), p. I25.
52 Mcllwain, op. cit., p. II9.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
though Cicero
THE JOURNAL OF RELIGION
II4
implies that it was used earlier.53 The principles, a criterion) to which all law
term as used by the early Roman jurists ought to conform. This transformation
might mean the law that obtains for the was due to the broadening cosmopolicitizens of all nations or the law that
tanism and to the practical require-
governs the nations themselves in their
ments of an expanding Rome, to the inrelations with each other. More specificreasing awareness of the laws of other
cally, it referred to a body of commercial
gentes (extending from Britain to the
law applicable to peregrines, as well
as
Middle
East), and to the influence of
to Roman citizens. From a practical
Stoic philosophy. The Latin equivalent
point of view, its essential content was
for dikaion (the "right" or the "just")
became the Roman word for law. The
the law of contract; from a theoretical
point of view, it gradually came to
be
jurisconsults
said ius where Cicero had
understood as "the universal element,
in lex. Here ambiguity served the
said
antithesis to the national peculiarities
cause of philosophy. The theoretical con(ius civile) to be found in the positive
ception of ius gentium tended to become
law of every state."54 In the earlier perifused with the philosophical conception
of ius naturale. This fusion was never
od of its use it met a practical, rather
than a theoretical or speculative, need.
universally accepted, nor did it remain
It was appealed to not only in order
to As a consequence, ius gentium in
stable.
extend the rights of a commonlysome
ac- instances referred to the law of concepted law to the foreigner but also
in recognized in a Roman court, in
tract
other instances it referred to the instiorder to impose duties upon the foreigner. To treat the foreigner as possessing
tutions common to all known systems
no rights and no duties would have been
of law, and in still other instances to a
completely frustrating to commerce.
general legal ideal permeated by Stoic
"The contract of stipulation was oneprinciples
of
of equality and equity. Hence,
the institutions extended in this way."5s
ius gentium at times approximated the
In time the ius gentium came tomeaning
be
of ius civile, and at other times
considered a model (or, in its general
it was practically synonymous with ius
Perhaps it was because of this
53 W. W. Buckland, A Textbook of Roman naturale.
Law
(Cambridge, I92I), p. 55.
ambiguity that the philosophical con-
ception of a Law of Nature could insinu54 Ernest Barker, Introd. to trans. of Gierke,
Natural Law and the Theory of Society (Cambridge,
ate itself
I934), I, xxxvi. Cf. the definition given by Gaius:
into the Roman interpretation
of
positive
law. The influence of the phil"That law which any people establishes for itself
is peculiar to itself, and is called the civil lawosophical
(ius
tradition is to be seen in the
civile), as being the particular law of the state,
fact that "on the whole the speculative
(ius proprium civitatis). But that law which natural
form
reason has established for all men, is observed by all
of ius gentium seems to have re-
ferred
to the rules common to all free
peoples alike and is called the law of nations
(ius
gentium), as being that which all nations use. men,"
Thus whereas the term ius naturale was
the Roman people applies partly its own law, partly
used for "those applicable to all manthat common to all men" (Comm. i. i).
kind."56
ss H. F. Jolowicz, Historical Introduction to the
Study of Roman Law (Cambridge, I939), p. Io0.
56 J. W. Jones, Historical Introduction to the TheThe contract of stipulation was a verbal contract
oryanof Law (Oxford, 1940), p. I03. For a collection of
"entered into by question and corresponding
swer thereto, by the parties, both being present
at see M. Voigt, Die Lehre vom jus naturale,
passages
the same time" (Black's Law Dictionary [St. aequum
Paul, et bonum und jus gentium der Romer (LeipMinn., I933]).
zig, I856), Vol. I, passim.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
II5
natural
Another evidence of the ferment
pro-law. Yet this institution was the
foundation
of ancient culture, and it induced by the conception of ius naturale
is to be observed in its influence upon
volvedthe
a trade profitable abroad as well
home. Indeed, the wars waged by
developing notion of equity. as
AsatSir
Henry Maine indicates, equity was
"thewere to a large extent slave-colRome
exact point of contact between lecting
the oldexpeditions. (Max Weber has
ius gentium' and the Law of Nature."s7
suggested that the drying-up of the supply of
slaves was one of the causes for
When the jurists "wished to apply
the
ius naturale specifically, they coupled
the decline of the Empire.)6" Hence the
it with the notions of aequitas orphilosophers
the lex
and lawyers were, at most,
boni et aequi, and crystallized these
fur- only by an intellectual sense of
troubled
ther into such general principles inconsistency
as those
between their appeal to
recognizing the special claims of
blood
natural
law and their loyalty to the positive laws
relations to succeed on intestacy,
en- and conventions.6'
joining faithful performance of agreeA distinction of importance for later
discussions of natural law was that atments, prohibiting unjust enrichment,
and stressing intention rather
than to Ulpian and adopted by the
tributed
words."58
compilers of Justinian's Institutes (i. i.
But, as in times before and since
3).then,
According to it, the Law of Nature
the term ius naturale was itself also used
applies to all living creatures.62 This
by the Roman jurists in a variety of definition became the basis of the later
ways. Sometimes it referred to an ideal medieval distinction: the threefold clasto which positive law ought to conform, sification of ius naturale, the rules or insometimes it was the basis of all law and
stincts common to all animals (a con-
therefore not to be set aside by the law ception that is reminiscent of Cicero's
of the state.59 It was never thought of asinclusion of the instinct of self-preservaa purely speculative conception, as if it tion in the natural law); ius gentium, the
were founded on untested principles. For rules common to all mankind; and ius
the most part, the definition given was civile, the particular law of this or that
similar to that of Cicero, namely, that commonwealth. It should be noted that
natural law underlay existing law and this definition of ius naturale never be-
must be looked for through it. The func- came the basis of any consistent theory.
tion of natural law was therefore remedi-
al, not revolutionary or anarchical. That 60 Gesammelte Aufsdtze zur Sozial- und Wirtschaftsgeschichte (Tiibingen, I924), pp. 303 ff.;
is, its purpose was successfully to main- quoted by Mayer, op. cit., p. 72.
tain the social status quo.
61 In the Institutes of Justinian slavery is deas an institution of the ius gentium contrary
The implications of this natural-law fined
theory for the institution of slavery de- to
nature and resulting-from war. It is well for us to
serve comment. In general, the Romanremember that chattel slavery and the slave trade
have played a role in America and in the American
lawyers held slavery to be contrary to"conscience." The Greeks and the Romans have no
57 Ancient Law (London, 1891), p. 58.
58 Jones, op. cit., p. I03.
monopoly on inconsistency here.
62 "So we get," observes Pareto, who was wont to
speak of natural law as an elastic band, "a natural
59 For a discussion of the various nuances of
law of earthworms, fleas, lice, flies, and in our day
meaning given to the term by the Roman jurists
we might add infusoria" (The Mind and Society,
see James Bryce, Studies in History and Juris-trans. Arthur Livingston [New York, I935], I, 245;
prudence (Oxford, I9OI), II, 586 ff.
quoted by Seagle, op. cit., p. 201).
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
II6
THE JOURNAL OF RELIGION
Sir Frederick Pollock points out that the
definition was not only given undue at-
tention because of its prominent position at the opening of the Institutes but
was also contrary to the Stoic conception
desire of the Scipionic Circle to resist the
reforms proposed by the Gracchi; and
by the theory of relative natural law,
which developed after the time of Cicero
and Seneca and which provided sanc-
of the Law of Nature.63
tions for protecting the interests of the
But long before the debates over these
distinctions were begun in the early Middle Ages, the ancient theory of natural
ruling classes and for maintaining the
"natural" injustice of slavery. Despite
law had taken its main direction64 and
Sir Frederick Pollock's assertion that
the modern natural-law doctrine "has
never ceased to be rationalist and prothus had entered Western legal thought
gressive,"66 we may justifiably raise the
thousand years. Commenting on this
question as to whether in the period under survey the doctrine did not serve to
influence, Sir Henry Maine says:
"rationalize" the prerogatives of governI know no reason why the law of the Romans
to exercise its influence for well over a
ment to control men (under law) and
should be superior to the laws of the Hindoos,
unless the theory of Natural Law had givenkeep
it
them at their "station and its du-
a type of excellence different from the usual one.
ties" more than to teach them their
In this one exceptional instance, simplicity and
rights in face of a class-dominated so-
symmetry were kept before the eyes of a society
ciety.
whose influence on mankind was destined to be
From Pythagoras to Justinian the
prodigious from other causes, as the character- idea served mainly the purpose of "haristics of an ideal and absolutely perfect law.65
moniously maintaining the social status
Sir Henry Maine's characterization quo."67 Progressive or revolutionary interpretations had to wait until another
of the role of natural-law theory in Roera before they could gain currency.
man jurisprudence should not be allowed,
Such a change became possible only
however, to conceal the fact brought out
after
the prevailing conception of the
by our cursory survey of the variety of
function of law had changed to one that
interpretations and applications given
lay beyond the purview of earlier ways
to the theory in Greco-Roman thought.
of life and thought. The change was, of
Within this broad sweep of history the
course, due partially to the fact that new
concept has been used again and again
as a Kampfbegriff. This is evident in the sections of society effectively claimed
their place in the sun (and it should be
use to which it was put, for example, by
the Pythagoreans with their physis-sanc- added that in achieving that place they,
in turn, made natural law "conservathe Sophists (both conservative and tive" again-so great is the cunning of
reason).
"progressive"), by Plato and Aristotle
These considerations lead one to queswith their static, class-conscious outtion
whether the concept of nature, as
look; by Cicero-at least in so far as his
tioned theocratic monarchy, by some of
philosophy of law was motivated by the
63 Op. cit., pp. 36-38.
64 Above, pp. 95-96, where the constituents of
natural-law theory are summarized.
65 Op. cit., p. 78.
set forth in the classical doctrines of nat-
ural law, properly or adequately presents the objective conditions of life or
66 Op. cit., p. 32.
67 Pound, op. cit., p. 78.
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE LAW OF NATURE IN GRECO-ROMAN THOUGHT
II7
the universal criteria of the goodtransform
life to established sacramental sewhich all men should conform. Indeed,
curities (both religious and secular) as
they have led many to question whether
it had previously worked to protect
reason is capable of defining anythem.
standThis tendency of the pagan (and
ard of justice which is universally
valid medieval) static concept to
Christian
a sanction for an established
or acceptable. Leaving aside thebecome
radical
question (raised by Christian theologirelative good will lead later theorists to
ans) as to whether the ethic of law
does the adequacy of the concept as
question
not need to be related to an ethic of
such. Despite the fact that the concept
natural law has often served as a critilove-a question to be discussed in of
later
studies in this series-we must observe
cism of self-interest, they will assert that
that reason and nature, even in theit requires a higher principle than "nabroad sense of Stoicism, are neither ture"
so
to reveal the ideological taint that
rational nor so divine, neither so imaccompanies its conception and applica-
mutable nor so ultimate (nor so omnistion, and also in order to keep it open to
cient) as many pagan theorists were
criticism and to preserve the freedom of
wont to assume. This observation apman to surpass himself. Other criticsplies also to reason and nature in any
especially those under the influence of
other sense.68 Neither God nor the uniReformation theology with its antiverse nor man can be put into the cup
Pelagian concepts of nature, man, and
of rationalism. "Nature loves to hide,"
God-will question the optimistic pre-
says Heraclitus. Certainly, the doctrine suppositions of the main line of classical
of the immutability of natural law (orthought about nature and reason. They
of natural-law theory) cannot be ac- will point out not only the pagan overcepted. The exaltation of the immutable confidence in reason but also the neglect
is not the way to "combine the One and of the will.70 Still other critics will inter-
the Many." Moreover, if "nature" is pret the political "justice" and "equali-
fixed and if its precepts are supposed toty" of ancient (or modern) natural-law
be revealed to all men by their reason,theory as a typically bourgeois, ideologione wonders why almost two thousand cal concealment of economic injustice
years of natural-law speculation wereand as a clog upon social legislation. In
required before the modern notions of all these and in other ways questions conprivate rights and of civil liberties werecerning the nature of nature and the natrevealed.69 Or one wonders why humani-uralness of "natural law" will be raised
ty had to wait until after Jewish-Chris- in a radical fashion.
tian prophetism and revolutionary ra-
In all this searching, the ultimate
tionalism (not to speak of the power of aquestion will be: May one properly denewly emerging bourgeoisie) had exer-rive ethics from nature, may one derive
cised their influence before natural-law
"what ought to be" from "what is" and,
if
so, in what sense? Our study of the use
doctrine began working as much to
and abuse of the idea of natural law in
68 For a discussion of these issues see the author's
The Changing Reputation of Human Nature (Chi- 7? M. B. Foster (The Political Philosophies of
Plato and Hegel [Oxford, I935], pp. I3I ff.) deals
cago, I943), esp. pp. 19-48.
69 Cf. Seagle, op. cit., p. 2Io.
cogently with "the failure of Greek ethics to achieve
a notion of will."
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms
THE JOURNAL OF RELIGION
Greco-Roman thought would indicateimplicit within, our earthly habitations.
that if one attempts to derive ethics They must be seen in relation to an ultifrom nature, there must be an awarenessmate which calls into question even our
of something beyond nature and reason formulations concerning it. The sparks
just in order that their ambiguities mayof nature are hard to discern as well as
be recognized and transcended, an aware- to hide. For, as Shakespeare suggests,
ness of something beyond, though also "its thoughts do hit the roofs of palaces."
This content downloaded from
152.58.211.187 on Sat, 17 Feb 2024 07:32:42 +00:00
All use subject to https://about.jstor.org/terms