Readings in Legal Philosophy and Theory (Text and Comments from Plato to McDougal) JORGE R. COQUIA AB, LL. B., LL. M., S.5.D.ki Philippine Copysight, 2005 by JORGE R. COQUIA ISBN-971-23-4195-X No portion of this book may be copied or ropro- duced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in dif- ferent electronic devices or in any other form, for dis- tribution or sale, without the written permission of the author, except brief passages in books, articles, reviews or legal pleadings and in judicial or other official proceedings with proper citation. Any copy of this book without the correspond- ing number and the signature of the author on this age either proceeds from an illegitimate source or is in possession of one wh lias wo authority to dispose of the same. ALL Ril RESERVED BY THE-AUTHOR swim ain oa No. ISON 971-23-4195-x | 9789712434195 REX printing Company, inc. _ypoquepy & cache ihogeaphy 248 Pom Cv cy Tan aungi Tata PREFACE ‘Teaching legal philosophy, legal theory and jurisprudence has been a difficult and challenging task. This writer, who is teaching ‘the courses in several law schools for over twenty years and six years in the graduate schoo! has experionced this dauntless task. How to create the interest in the subjects among students is the first chal- lenge. Legal philosophy, legal theory or jurisprudence are not bar subjects. They do nothave a direct relation with the so-called “bread and butter” subjects an aspiring lawyer wants to know in order to enter a profitable practice of law. ‘The main problem of teaching the subjectis the heavy reading materials the students are expected to read and comprehend. The subjects are composed of the writings of Greek philosophers Plato and Aristotle, Roman jurist Cicero, the medieval philosophers St. Augustine, Thomas Aquinas and modern philosopher Emmanuel ‘Kant, John Austin, Hans Kelsen which may not be fully understood in one or two readings. Even the lighter writings of Oliver Wondel Holmes, Roscoe Pound, Lasswell and McDougal are not easy readings. What is more, the original texts and materials are not easily available to moat students. With the exception of Crisolite Pazeual’s ook Introduction to Legal Philosphy and Leonardo Mercado, 8.V.D., Legal Philosophy most ofthe materials are found in foreign publica- tions not easily available. The cost of acquiring these foreign mate- rials is quite excessive. ‘This work is an attempt to put together in one book the ex- corpts of the writings of the major legal philosophers and analysis and comments of contemporary Philosophers such as of Del Vecchio's, Philosophy of Law, Paton’s Textbook of Jurisprudence, Rommen's Natural Law, Cairns’ Legal Philosophy from Plato to Hegel and vari- ous legal articles. Included in this book is the Communist theory of law which is still followed in many Socialist States. ‘Added in this book are the modorn logal writings of George Hugh Smith on Natural Leno, Horbert Lionel Hart on Legal Positiv- ism, John Rawls on the Sociological School. About three of the original writings are not available hence, the secondary source from Cairns’ book aro reproduced. To aid the stadont in understanding the school of philosophy guide questions are placed after each chapter in class discussion with the professors. i‘The author expresses his gratitude to Mr. Juanito Fontelera of ‘the Rex Book Store and Printing Press for publishing this book. Acknowledgments are due to Christopher A, Pasuguin who meticu- ously proofread the text and, Ms. Maricar I. Lavarias for the design for the art cover of the book. Jorge R. Coquia TABLE OF CONTENTS: PREFACE...... Chapter 1 INTRODUCTORY CHAPTER Definition, Nature and Function... . Function of Philosophy of Law and Jurisprudence.. Chapter IT HISTORY OF PHILOSOPHY OF LAW Ancient Greek Logal Philosophy Ancient Roman Legal Philosophy ‘The Legel Philosophy of tho Medieval Era. ‘The Legal Philosophy in the Renaissance .. Questions in Chapters I and Tl Chapter I ‘THE HISTORICAL SCHOOL Savigny, Of the Vocation of our Age far Legislation and Turisprudence.. Comments by Paton . Questions Chapter IV SEMINAL CONCEPTS (Philosophical Approack) Plato, The Republic... Comments on Plato by Cairns Aristotle, PolitiesCicero, De LegibUs nen Comments on Cicero by Cairns .. ‘Kant, The Philosophy of Law Comments on Kant by Paton .n.n ‘Hegel, The Philosophy of Right... ‘The Foundations of the Philosophy of Law ‘Comments on Hegel by Del Ver Vecchio. ‘Questions.. Chapter V ‘THE POSITIVIST SCHOOL 66 Austin, The Province of Jurispradence Determined. Comments by Paton on John Austin ae 86 Kelsen, Pare Theory of La\ a 93 Comments by Paton on ‘The Pure Science of Law... 99 Bentham, An Introduction to the Principles of Morals and Legislation nun 104 Questions .... semen AM Chapter VI ‘THE FUNCTIONAL SCHOOL (Socio-logical Jurisprudence) Pound, The Scope and Purpose of Socio-logical Surispradence .. Comments by Paton on the Functional School. Questions .. Chapter VII ‘THE REALIST SCHOOL, ‘Holmes, The Path of the Law 7 151 Comments by Paton on the Realist School 165 Comments by Jerome Frank, What Courts Do in Fact . 159 Questions . se 163 Kerl Mart. 164 Lenin on Marc... 166 Questions . a 178 Chapter IX ‘THE POLICY SCIENCE SCHOOL Lasswell and McDougal, Legal Education and Public Poti Professional ‘Training in the Public Interest 474 Comments by Crisolito Pascual, The Policy Science Schoo) of Jurisprudence 7 . 187 Questions . 197 Chapter X ‘NATURAL LAW St. Thomas Aquinas, The Summa Theologica... 198 Comments by Maritain on St. Thomas Aquinas 210 Coguia, For a Revival of Natural Law Doctrine in Philippine Jurisprudence Questions . BibliographyChapter I INTRODUCTORY CHAPTER Definition, Nature and Function Philosophy as taken from the Greek words, Philos and Logos, means love of wisdom. It is the study of the universo that seeks to know the truth and the rational explanation of anything. Philosophy oflaw ie that branch of philosophy which deals with lav that is, the ‘visdom of the law. Tt studies the nature of law with particular reference to the origin and end of law, and all the principles that govern its formulation. Itis a part of practical philosophy. ‘The object of philosophy oflaw isthe study of aw in a universal sense, Law can also be studied as to its particular points in which the object is Juridical Science or Junsprudence. Parts ofthe system are Public Law and Private Law. Public Law considers the Constitutional Law, Administrative Law, Penal Law, Procedural Law, and International Law. Private Law deals with Civil law, Commercial law and those that govern relationships among individuals or juridical entities. ‘aridieal Science can inform the people only of the law among, certain people in a given period. Philosophy of law, however, transcends the competence of each individual juridical seience. Inmmanvel Kant has said that Juridical Science docs not answer what, islaw. Ib answers the question only of whats established by law of a certain system (quid juris). Philosophy of Law considers the essential elements which are common to all juridical systems. Tt looks into the universal concept of law. Giorgio del Vecchio gives a more comprehensive definition of Philosophy of Law “as the course of study which defined law in its logical universality, secks its origins and general characteristis of its historical development and evaluates it according to the ideal of justice drawn from pure reason” (Philosophy of Law, Translation by Thomas Owen, The Catholie University of American Press, Washington, D.C. 1969).‘READINGS IN LEGAL PHILOSOPHY AND THEORY Often times philosophy of law is interchangeably termed as jurisprudence. Philosophy of law is one thing in the hands of lawyers and is quite different in the hands of philosophers. For the lawyer the starting point is juridical institution, practice or ideal and the ond sought is its establishment on a rational basis. For the philosopher, the premise lies beyond the domain of law in the realm of national existence or human nature from which the function of aw in society is deduced and harmonized with man’s other activities (Cairns, Legal Philosophy from Plato to Hegel). Function of Philosophy of Law and Jurisprudence ‘The study of law in a universal sense constitutes the object of Philosophy of Law. Law is studied as to particular points, in which case the object is Juridical Science in a narrower sense. What is the proper law is the quest of philosophy law and jurisprudence. Often the questions asked are “What is law?", “What is justice?", “What are the reasons why law must be obeyed?” Philosophy of law is a quest of law which appeals to reason to obtain gin ean oars wvaly cps aes oa to persuade people to whom itis addressed, What the king, emperor or the prince orders was the law and everyone obeyed it out of fear of punishment. Foree was usually resorted for its enforcement, One function of philosophy therefore is to formulate Jaw that is reasonably acceptable to the people to whom it is addressed. Philosophy of law therefore is opposed to tyranny. ‘The practical function of philosophy is ‘hab it teaches and rrepares for the positive recognition of the juridical ideal, Some txampes are the formulation of guarantws ofthe feetom ofthe individual under a political constitution established by English and American States, the progress of modera International Law as influenced by the writings of Alberico Gentiles and Hugo Grotius, the humanitarian development of penal law as influenced by Becaria, and, more recently the universal recognition of human rights. Chapter I HISTORY OF PHILOSOPHY OF LAW Every branch of knowledge is better understood by knowing its history. History of Philosophy is a means of study and research, which helps in the acquisition of regarding knowledge philosophies advocated by different philosophers in the past. Itis a study of how Philosophers meditated upon the problems of law and justice Philosophy of Law in the past has been intermingled with Theology, ‘Morals, and Politics. The religious books in Asia are treated together with morals, cosmogony and justice, Law was treated in a dogmatic spirit conceived as a command of the divinity and as superior to human power, consequently, not as an object of science but only of faith. The Hebrews, the Chinese, the Indians and the Arabs made contribution to philosophical studies with regard to moral. ‘The Philosophy of Ancient Greece: The general history of Legal Philosophy started with the ancient Greek Philosophers Socrates, Plato, and Aristotle. In the fifth century B.C., the Sophists natives of Greece taught doctrines which denied all objective truth. They denied the existence of absolute justice. Law to them is relative. Plato in his Dialogue disputed the Sophists. Socrates (469-399 B.C.) did not leave any writing but his doctrines are found in the Dialogues of Plato.and in the Memorabiliae of Xenophon. Socrates believed in a higher justice for the validity of which it is not necessary that there is a positive sanction or a written formulation. Obedience to the law of the state is a duty. Socrates in. this way gave the first indication of an idealistic philosophical system which was constituted in its entirety by Plato. But Socrates was accused of having introduced new gods and for having corrupted the ‘Youth. He was condemned to death for his pretended erimes.READINGS IN LEGAL PHILOSOPHY AND THEORY History of Philosophy of Law : Plato (427-347 B.C.), a disciple of Socrates, wrote his teac Ms ow eT EIB ie ean a hak aut of dm ewe i i Se is the most perfect unit, The State ‘dominates all human, nae = ‘State must promote good in any form. Justice is achieved througl ee LA. Richards, Fellm of Magdalene College, Cs ze, said that see eer ance ep Cnt et The Republic. Aristotle (884-322 B.C.), a disciple of Plato, was the teacher of Alexander the Great, as founder of the school Gymnasium Lyceum in Athen. He treated almost every branch of knowledge and many di taleals cn eel eye emit oi good is happiness, the product of virtue. The State is a perfect organic bieeer rtel e oenhg t Ba age oiler ‘The content of the law is justice as is applied in various ways. \e principle of justice is equality which is applied in various ways. siiie soi pteectenn ‘The second kind of justice is connective and. equalizing or ‘rectifying. In a broad sense, this form of justice is applied to voluntary contractual relationship. It also includes involuntary relationship such as Tort. Aristotle was concerned with the difficulty of applying abstract Jaws to concrete cases and indicated equity as a criterion of applying wre ‘The Ancient Roman Jurists: ‘The Romans did not have an original philosophy of law. The Greoks were concerned with philosophy and the Romans on law. The ‘Romans excelled in the codification of law but the philosophical basis was derived from the Greeks. tate 3-41 B.C.) who ereated interest in pl sa Rome, HiswerksDe Repub, Deeibus and De Ofeeenained the influences of the State of Plato. 4 According to Cicero, law is not a product of choice bat is given by mature. There is eternal law which is an expression of univereal reason. Equity and natural law are factors in an ideal lav. ‘The contribution of the Romans to jurisprudence is the formulation of codes. The Justinian Code is the best example of putting together ina systematic form the rales and practives, which are the products oflong years of exporience not only of the application of jus eivili to Roman citizens but also of jus gentium that was applicable to foreigners. Jus gentium was considered as an expression of the primordial needs which are common to all people 45 a more direct relation of the universal reason, ‘The Philosophy of the Medieval Era — ‘The Influence of Christianity At the beginning, Christian Dectrine was signifieant only on moral principles and not on juridical or political matters Christianity was considered only in reforming consciences of men. Bot men later understood Christianity az an advooate of liberty, eauality and, the unity of the human family. The gospel of the brotherhood of men through Divine law became a challenge to the established political order. Christ's teaching in a spiritual sense said “I have come not to de served but to serve. (MR. 10:46) My Kingdom isnot of this world, (John 18:36)" Render to Caesar and things that are Caesar's and to God, the things that are God's. Taxes are to be paid to the State nob to the Chureh, (Mt. 2221-22) Modifying the Greek and Latin philosophies that the individual's cupreme mission is to be a good citizens of the State, Christianity said that the good goal of the individual is not only civil Jife but eternal happiness which can be obtained throagh submission to the Divine wil The Church asserts itself as an autonomous authority above the State. The State is concerned only to earthly things while the Church, with those that are eternal.READINGS IN LEGAL PHILOSOPHY AND THEORY Tin the Patristic period starting from Charlemagne (724-814), several Christian writers, after the Apostles, arose such,as Tertullian and Ambross. The most important writer during this period was St. Augustine (954-430). As bishop of Hippo, St. Augustine wrote the ‘work De Civitae Dei. While the Greeks considered the state as supreme end of men. St, Augustine extols above all the Church and the communion of souls in God. The state has the purpose of maintaining the temporal peace but is always subordinate to the heavenly city. The Church has its purpose the procurement of eternal peace. ‘The age of Scholasticism prevailed in the teachings of St. ‘Thomas Aquinas (1225-1274) with his work The Summa Theologica, ‘a compendium of Catholic philosophy. (This matter will be dealt in Chapter X on Natural Law In The Age of Scholasticism.) ‘The Renaissance ‘The Renaissance, a rebirth that started in the 14* century, came about to overcome the long period of excessive dogmatism. In Renaissance, autonomy and freedom of investigation were awakened. ‘The discovery of the New World and the invention of printing press permitted the propagation of new ideas. The Religious Reformation which took place in the Anglo-Saxon countries resulted in the withdrawal of religious leaders from the authority of the Church. ‘The liberal writers advocated popular rights and law was no longer studied on the basis of Theology. Hugo Grotius (1583-1648) who wrote the famous treatise af De Jure Belli da Pacis. (The Law of War and Peace) is considered the Father of Modern International Law. He intended to determine the juridical relations between States whether in peace or in war. Accopting Aristotle's theory of being good in political society, law is something that is presented by reason not by revelation. Natural, moral law world exists even if there is no God. xxx History of Philosophy of Law eee Ee PEELE CEE Questions in Chapters | and I! 1. Define Philosophy of Law: How is it distinguished from jurisprudence? eel What is the main function of philosophy of law? ‘Why is it important for lawyers to know philosophy of law? When, where and how was philosophy of law originated? ‘What were the contributions of Socrates, Plato and, the development of Philosophy of law? mnie ‘What was the principal contribution of ancient juris to Philosophy of Law? fonen 7. What was the contribution of the] " What woe the ‘of the legal philosophers during the 8. Who was the foremost legal philosophers i Qos yee gal philosophers during the Medieval 9. What were the reasons wl What were there ‘hy philosophy freely developed during 40. In what way did Christianity influence Legal Philosophy? saeChapter III HISTORICAL SCHOOL SAVIGNY, OF THE VOCATION OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE” iedrich Carl von Savigny (1779-1861) published his first sui ceima corporate rs srochepacteee ae of Berlin, where he also served as tutor to the a ane I codification in 1814 eerved as a model for similar protests in a lands against the movement for codification to which Bentham had given great impetus. In 1815 the first volume ee ee te des rémischen Rechts im Mittelalter came out; the final vol a o 1831. Savigny’s famous work on the contemporary Lae al ‘Sate des heutigon romischen Rechts (1840-1849, 8 volumes) was Obligationrecht). Meanwhile Savigny had served from 1: . - as head of the Prussian legal system, which afforded the oppor rae of recasting the law of commercial paper and the divorce stat : After 1848 Savigny devoted himself entirely to theoretical jurisprudence. good, or necessary, or, on the contrary, censurable herein, — wil not at all prejudiced by this method of proceeding. In the earliest times to which authentic history extends, the ‘Jaw will be found to have already particular faculties and tendencies “Reprint from Cohen and Coben, Readings in Jurisprudence and Legal Philoso- ‘pry. All oomots were omitted. 6 Historical Schocl EPEC of an individual people, inseparably united in nature, and only wearing the semblance of distinct attributes to our view. That which binds them into one whole is the common conviction of the people, ‘he kindred consciousness of an inward necessity, excluding all notion of an accidental and arbitrary origin. ‘In modern times the view has come to prevail that all life was at first of an animal character, passing through evolution step by step to a tolerable existence, until at length the height on which wo now stand has been attained.... But this organic connection of law with the being and character of the people, is also manifested in the progress of the times; and here, again, it may be compared with language. For law, ae for language, there is no moment of absolute rest; it is subject to the ‘same movement and development as every other popular tendency; and this very development remains under the same law of inward ‘necessity, as in its earliest stages. Law grows with the growth, and strengthens with the strength of the people, arid finally dies away as the nation loses its nationality... ~~ With the progress of civilization, national tendencies become mare and more distinet, and what otherwise would have remained common, becomes appropriated to particular classes, The juriats now become more and more a distinct class of the kind, Law perfects ite Tanguage, takos a scientific direction, and, as formerly it existed in the consciousness of the community, it now devolves upon the jurists, who thus, in this respect, represont the community... ~; The sum, therefore, of this view is, that all law is originally formed in the manner in which, in ordinary but not quite correct language, customary law is said to have been formed: ie, that it is first developed by custom and popular faith, next by jurispradence, = everywhere, therefore, by internal silently-operating powers, not by the arbitrary will of a lawgiver. Laws and Law Books Legislation, properly so called, not infrequently exercises an influence upon particular portions of the law; but the causes of this influence vary greatly. In the first place, the legislator, in altering the existing law, may be influenced by high political purposes. When, in our time, unprofessional men speak of the necessity of new 9READINGS IN LEGAL PHILOSOPHY AND THEORY lation, they commonly mean only that of which the settlement ofthe sighs of landowners ison of he ost string examplen. The history of the Roman lew, also, supplies examples ofthis kind,— 2 few in the free times of the republic, ~ the important Lex Julia et Papia Poppaea, in the time of Augustus, ~ and a great mumber since the Christian emperors. That enactments of this ind easily become a baneful corruption of the law, and that they should be most spatingly employed, mast strike any one who consults history. Putting together what has been said above concerning the requisites of a really good code, itis clear that very few ages will be found qualified for it. Young nations, itis true, have the clearest perception oftheir law, but their codes are defective in language and logical ski, and they are generally incapable of expressing what is best, so that they frequently produce no individual image, whilst Shei matter is inthe highest degree individual. The ls ofthe middle ages, already quoted, are examples of this; and had we the tnelve ables complete before us, oe should probably find something of the sort, only in a less degree. In declining ages, on the other hand, almost everything is wanting ~ knowledge of the matter, as wall ss language. There thos remains only a middle period; that which (as regards the law, although not necessarily in any other respect,) may be accounted the summit of civilization. But such an age has no need of a code for itself: it would merely compose one for a succeeding and less fortunate age, as we lay up provisions for winter. But an age is seldom disposed to be so provident for children and grandchildren. ‘Comments by Paton on Savigny The historical school antedates the work of Kelsen, but the reason for postponing discussion of the historical thesis is that, in opposition to the doctrine of the pure science of law, the historical school considered law in direct relationship to the life of the community and thus laid the foundation on which the modern sociological school has built. The eighteenth century was an age of rationalism; it was belioved possible by arm-chair deliberation to construct a universal and unchangeable body of laws that would be applicable to all countries, using as a premiss the reasonable nature of man. The historical school in part was a result af that surge of 10 Historical Schoo! nationalism that arose at the end of the eighteenth century. Instead the individual, writers began to emphasize the spirit of the people, the Volksgeist. In 1814 a programme for the school was enunciated by Savigny. The central question was ‘how did law come to be?” Law evolved, as did language, by a slow process and, just as language is 8 peculiar product of a nation’s genius, so is the law. ‘The source of Jaw is not the command of the sovereign, not even the habits of a community, but the instinctive sense of right possessed by every race. Custom may be evidence of law, but its real source lies deeper in the minds of men. ‘The living law’ is the georet of its validity. In those matters with which he is direetly concerned. every member of the community has an instinctive sense as to what is right and proper, although naturally ho wil have no views on matters which are beyond his experience. Thus the mercantile community will have an intuitive appreciation of the rules that should govern bills of exchango, a Peasant of the doctrines that should be applied to agriculture. Such, is the approach of the historical school, and it naturally led to a distrust of any deliberate attempt to reform the law. Legislation can succeed only if itis in harmony with the internal convictions of the race to which itis addressed. Ifit goes farther, itis doomed to failure. ‘The contribution of the historical school to the problem of the boundaries of jurisprudence is that law cannot be understood without an appreciation of the social milieu in which it has developed, The slow evolution of law was stressed and its intimate connexion with the particular characteristics of a people. Ever since Savigny wrote, the value which jurisprudence can gain from a proper use of the historical method has been well recognized, and in England Maine and Vinogradoff have kept the interest in these problems alive Writers of logal history such as Pollock and Maitland or Sir William Holdsworth have provided surveys whose value for the jurist ies in the clear demonstration of the close connexion between the common Jaw and the social and politieal history of England, But in Savigny’s particular presentation there were exaggerations of which the historical method must be freed if is to play its true part. Firstly, come customs are not based on an instinctive sense of right in the community as a whole but on the interests of a strong minority, for example slavery. Secondly, while some rules may develop almost unconsciously, others are the result, of conscious effort — our modern trade-union law was not achieved nREADINGS IN LEGAL PHILOSOPHY AND THEORY. ‘without much struggle. The flood of legislation in the twenticth century connected with what has become known as the ‘Welfare State’, marks the denial of Savigny's views in practice if notin theory. ‘Law has been used to plan the future deliberately and not merely io express and order the results of the past growth. Thirdly, the creative work of the judge and jurist was treated rather too lightly. The life ofa poople may supply the rough material, but the judge must hew ‘the block and make precise the form oflaw. Itis possible to exaggerate the ‘great lawyer’ interpretation of history for in a cense all men are children of the age in which they live, bué to regard the judge as a mere passive representative ofthe Volkegeist is just dangerous. Both in equity and in the common law we can still trace the influence of ‘the masters of the past, and any layman would be surprised if told that he had an instinctive sense of right concerning the rules of contingent remainders or the subtle refinements of the doctrines of equitable waste. Fourthly, imitation plays a greater part than the historical school would admit. Much Roman law was consciously borrowed, and when the success of the French Cade was acknowledged, other nations leid it deeply under debt. When the East began its rapid assimilation of Western idnas, t horrowed fracly from the codes of Germany and France, Savigny himself could never quite exorcize the ghost of the reception of Roman law in Germany; the thesis that the jurist, in weaving Roman rules into the customary law, were mere representatives of the Volhsgeist would have been ridiculed by the peasants who accused the doctores iuris of depriving the tenant of his customary rights in land by the introduction of forcign rules. Lastly, Savigny encouraged what Pound has termed ‘Suristic pessimism’—legislation must accord with the instinctive sense of right or it was doomed to failure. Hence canscious aw roformn was to be discouraged. There was sometimes a tendency to think that once the evolution of a rule had been traced, this deseription Justified its existence. It is fatally easy to accept abuses in that: to which one is accustomed, for ‘nothing binds {sic] the vision so much as custom and habit. There was a time when the criminal law of this country was in a state which would have been a disgrace to a half- civilized community and... judges in high authority and writers. .. wrote about it that it was the perfection of human wisdam, xxx 2 Historica! School 1 2 3. 4, 5. 6. Questions in Chapter Il | The Historical School I [What do you mean by the Historical School f Legal Philosophy? Heo it datingsshed rom History of Law? Who was the foremost advocate of the Historical School? Where land how was it advocated? What is the main thesis of the Historical School? What is meant by the phrase “Law is found and not made”? How is law determined under this school of legal philosophy? What are the advantages and disadvantages of the Historical School? 18Chapter IV SEMINAL CONCEPTS (Philosophical Approach) THE REPUBLIC" By Plato Classical Natural Law In a dialogue remarkable for its anticipation of subsequent analysis, Plato states that the law seeks to be the discovery of reality. He arrives. at this position by the following argument. Soreates asks abruptly: “What is law?” “What Kind of laws do you moan?” his ‘companion asks, Socrates makes short work of this question by inquiring iffthere is any difference between law and law in the very point ofbeing law, or if gold dfers from gold in being gold. His companion then defines Jawas that which is accepted as legal. To this the objection is made that speech is not the thing that:is spaken, nar is vision merely the visihla things nor hearing the audible things. Law must therefore be distinet from that which is accepted legal. Suppose itis assumed that it is by “law” that “the laws” are accepted, how would the “law” whereby they are thus accepted be defined? Socrates is here raising what we are accustomed to think of in modern terms as the problem of “authority” His companion answers that, in this sense, law is the decrees and pronouncements of the community, or, to state it generally, aw is the opinion of the state. That is to say, as Plato expresses it elsewhere, when a judgement of society takes the form of a public decision of the state it has the name law. Socrates observes that perhaps this s right, ‘but he does not helieve that the conversation has reached the essence of the matter. Law is a good thing, and public opinion is true opinion, and true opinion is discovery of reality: Socrates therefore conclades that law seeks to be the discovery of reality, rmore precisely,itis the true reality with respect to the administration of a state. Nevertheless, it is common knowledge that the laws of the different communities differ on the same subject matter. Perhaps, Socrates suggests, law may not always achieve its idesl of discovering “Reprint from Cairus, Lega! Pilccophy from Plato to Hee, p38. All footnotes were omitted. uM Seminal Concepts ‘true reality. Still, he adds, no society, not even the Persians, believes that the just can really be unjust. It is thus a universal rule that realities, and not unrealities, are accepted as real; whoever fails then to reach reality, fails it find law. However, answers the companion, we are continually changing our laws in all sort of ways. Perhaps it is because you do not reflect that when we change our pieces at draughts they are the same pieces, replies Socrates, Those who know always accept the same views, whether Greeks or foreigners; they will not vite differently at different times on the same matters, nor will they ever change one set of accepted rules of ancther in respect of thhe same matters. If we see some persons anywhere doing this, ‘we can say that they have no knowledge; and if they are mistaken in what they describe lav, then that law is mere appearance and ought not to be accepted to be asserting a distinction between principles and rules, eg., the difference between the principles of mechanics which are everywhere the same and the specific instruction followed by the bridge builder which vary with every work of construction. In holding law seeks to be the discovery of true reality, Plato ‘was defining its proper sphere in his philosonhical view of the world It represents part of his effort towards a constructive metaphysics and through it, as with any other thread we pick up, in Plato, we reach the core of the entire Platonic system — the general theory of Forms or Ideas, Elsewhere, inan aside, Plato offers another definition of law as the opportionment of reason; but inasmuch as reason is apprehension of reality wo are brought to the same point as in the {first definition. What did Plato mean by reality? He once tentatively defined it as power, by which he meant that anything has real existence if it has inherent in it the power of being affected or of affecting others, no matter how small the Plato remarks, however, that “the easy use of words and phrases and the avoidance of strict recisions is in general a sign of good breeding; indeed, the opposite is hardly worthy of a gentleman,” Although Plato nowhere sums up his doctrine in final form, if the pieces aro put together they make an intelligible picture. When he assorted that law'was the discovery of true reality he appeared to mean that the moral value of law increases as it approximates the ideal law which exists in the world is reality. The philosopher in the Platonic system is one who knows ‘true reality and who therefore knows what the ideal thing to dois. If ‘he philosopher is « king he will proscribe laws for the state based 15READINGS IN LEGAL PHILOSOPHY AND THEORY upon the ideal laws which he has perceived in the world of reality ‘They will therefore be the best possible laws, and by following them, the members of the community will be directed to the way of good life. Thus the laws of a city, if they are to be of moral worth, must be modeled upon the laws of reality so that they are the objective ‘expression in the state structure of the system ideas which alone represents the real. ‘There are obsecurities ia Plato's views on the nature of law and gaps in his reasoning, In a handful of pages, however, he raised many of the problems which have been the staple of juristic thought from this day down to the present time. His first question, literally the first sentence of the dialogue, still remains the first question asked of itself by every school of legal thought: What is law? He did not distinguish between society and the:state nor between ethics and politics. There was only one place for the realization of the good life and that was in the community. After twonty-four bundred years during which the notion of good life was kept distinet from that of ‘the political life, the state philosophies of the twentieth century are reasserting the Platonic thesis in one form or another. By insisting upon a rigid distinction between the idea of law and the positive enactments of the state, Plato prepared the way for natural law speculation and the perception of the ideal element in law-making. He answers the commonplace distinction, of fifth and fourth-century discussion, between nature and convention by setting in opposition the theory of Ideas which leads him to the conclusion that the law is discovered and not invented. He puts forward the theory that law is ‘an instrument of social control and thus suggests the problem of the end of law. By assenting in partto the notion that laws are the public resolutions of the community, he raises for Ister speculation the question of the relation between the state and law. The connection between law and morals is never absent from his thought. By suggesting (though rejecting the idea) that law might be defined as aggregate of laws, he anticipated th position which was taken by the majority of jurist from the Middle Ages to the analytical jurists and beyond. He made clear the function of principle in the construction of legal system. So far as the extant evidence shows, he was in all this, particularly when coupled with the tromendous powor ‘of his philosophical methods, the first to exhibit the possibility of a general science of law. 16 Seminal Concepts ‘The Function of Law ‘Three hypotiieses are assumed as the basis of Plato's thinking about law. They have been championed by influential schools of thought since his day; they have also been the source of much anguish in admirers whose political beliefs are ofa different complexion than Plato's. He held that the end of law was to produce men who were “completely good’; this could be done because, as the institutional idealists of the nineteenth century also assorted, human nature was capable of almost unlimited modification; the method to bo used was a benevolent dictatorship: philosophers must be kings or kings, philosophers. Those hypotheses have received as much attention as anything else in Plato, and itis necessary only that they be properly understood. As a philosopher, Plato could not accept anything less than complete goodness in mon; he therefore rejected all laws that did not incline to the end. “Keep watch on my present law-making,” says. ‘the Athenian, “in case I should enact any law either not tending to goodness at all, or tending only to a part of ft.” This 1s not the place to examine the role of ideas in legal thought, except to observe that the conception men have ofa better condition of affairs has frequently been a potent element in lawmaking; nor is it necessary to examine Plato's views on the relation of law and morals; his legal and moral views are so intertwined as to be inseparable, and lead him upon oceasion, as we have already seen from the Minos, even to assert that a bad law is no law. He was as aware as Hobbes and Austin of the distinction between law and morals, of the idea of law as a ‘command, but he would have none of it. Although, if men would listen to him, his goals were possible of achievement, he understood. fully that his proposal was visionary, an old man’s game of Jurispradence, and he had no expectation that his ideal would be realized in practice. He was merely insisting upon the necessity of abstraction or hypotheses as control in societal inquiry. He was wedded to his beliefin the malleability of human nature, and he had no doubt that the ehildren would accept the new laws even if the parents would not, That is a common presupposition of reform movements; it was given one of its most rigid tests, and with complete success, during two centuries of the Ottoman Empire (circa uwREADINGS IN LEGAL PHILOSOPHY AND THEORY Seminal Concepts A.D.1365-1664) which witnessed in practice the closest approximation to his proposal that the world has perhaps ever known. What is possibly the best defense by Platonists for the doctrine of the philosopher-king argues that it represents the principle that the government is an art or science s opposed to the politicians’ {idea of government by oratory under law; that this doctrine is merely a farther expression of his theory of ideal postulates and the combination of intellectual and moral perfection it envisages has never been known on this earth and is priori fictional; that itis a recognition of the demand that the state be ruled by the highest available intelligence, and represents only the autocratic discretion of the true shepherd, pilot, or physician; and finally that (though Plato always insisted upon the proposition that itis bettor for the ‘unwise, whether they consent or not, to be ruled by the wise) in practice to everywhere yields to the reign of law and the consent of the govorned. A marked feature of Plato's writings is the extraordinary care he takes to limit his proposals by explicit ‘qualification or an ironical turn of phrase. The defense offered for him, therefore, is not. an impossible one. Was Hato hostile to law? That is a necessary question in any account of Plato's jurisprudence. There is no doubt that as a seeker afler an ideal the Plato of the Republic preferred the adaptable intelligence of the all-wise autocrat to the impersonality of the rule of law. As it appeared on this earth, it was the despot of mankind and often forced men to do many things which were opposed to nature. It was the lord of the state. In the nature of things, moreover, law aimed at the impossible. Through the medium of the fixed, inflexible general rule laws sought to direct men and actions which were constantly changing and always different. In such system it was impossible to avoid the “hard case.” He knew well the simple trath, as the trial of Socrates had shown him, that the debating method of the courtroom, as distinguish from cross-examination, was perhaps tthe least likely to lead to the discovery of truth. Against this the Plato of the Laws and Statesman had come to realize that on this earth benevolent dictatorship was a counsel of porfection and that he would better propose a solution which had a possibility of realization, In the arts we trust the experts absolutely; but in the realm of government the expert is rarer than any other art. In the human hive no king-bee was produced so pre-eminently fitted in 18 body and mind to rale as an expert that he might ignare the instructions of law, Plato therefore believed that society shotld fall back upon law as a second-best, perhaps even as something in the nature of a pis alley; the supremacy of the rigid rule adapted to the “average” man and the general situation and incapable of dispensing ‘equity in the particular case. He had no doubt whatever that fixed Jaws are to be preferred to the personal administration of the ‘unscientifie ruler which is the type society usually receives. Plato thus came to this final view on the necessity of law. He insisted that it was indispensable; without it we were indistinguishable from animals, It was the instructor of youth. Its noblest work was to make men hate injustice and love justice. The laws are intended to make those who use them happy, and they confer every sort of good. It was hard, Plato pointed out, for men to Perceive that the preoccupation of social scienco was with the community and not with the individual; loyalty to the community's interest bound a state together; the pursuit of the individual's interest ‘tore it asunder. Plato stated that it was hard for men to see also that the interests of both alike were better served by the cammmnity’s prosperity than by that ofthe individual. There was not a man among us whose natural equipment enabled him both to see what was good for men as members of a community, and, on seeing it, always to be doth able and willing to act for the best. Irresponsible power for ‘mortal men always led to grasping and self-interested action, or, as Acton was to rephrase it ater, “all power corrupts and absclute power corrupts absolutely." ever a man were providentially endowed with a native capacity to apprehend the true power and position of the irresponsible autocrat he would need no laws to govern him; for no Jaw had the right to dictate to true knowledge. But, as things were, such insight nowhere existed, except in small amounts; that was why we had to take the second best — law the generality of which could not always do justice to particular cases. ‘The works of the great discipline of Socrates, Plato (427-347 B.C), written in dialogue form, present his teacher in'the act of discussing with his disciples and with the Sophists his adversaries, sothat the whole aystem of Plato is apparently expressed by Socrates, He, however, is not its constructor. Socrates put people on the way to philosophical speculation, but he did not himself produce complete system. The Socrates of Plato is not, therefore, the Socrates of History, but is in the great part of Plato. 19READINGS IN LEGAL PHILOSOPHY AND THEORY Of the teachings of the latter we cannot treat insofar as they pertain more particularly to our course of study. We shall make mention of the two Dialogues, or Republic — it would be better translated as State ~ and , or Laws. To these could be added, as a third, intermediate between the two, the one entitled —, Political Man. The most important is the first, in which Plato represents ‘completely his ideal concept of the State. He wants to consider Justice in the Stata, since, as he says, there Justice is read more clearly, being written in large characters, whereas in each individual man it is written in small characters. ‘The State, for Plato, is man on large scale. It is a perfect organism, indeed the most perfect unit Its a whole form of various individvals and solidly built, as a body is formed of several organs, seni together make ite life possible. Both in, the individual and in the State, there must reign that harmony which is obtained through virtue, Justice is the virtue par excellence, insofar as it consists in a harmonic relation between the various parts of @ whole, Justice requires that each one do his part, in relation to the common purpose. Plato traces carefully the parallel between the State and the individual and even goes into particulars, giving to his conception a psychological basis. Three parts or faculties exist in the soul of the individual: reason which dominates, courage which acts, sense which ‘obeys, Similarly; in the State three classes are distinguished: that of ‘the wise, destined to dominate; that of the warriors, who must depend the social organism; that ofthe artisans and farmers, who must feed it, As the individual dominated by reason, so is the State by the class which represents precisely wisdom, by the philosophers. i 1e cause of participation in and the submission of the snaivtal tothe State the lack of autacey, the imperfection of the individual, his insufficient by himself. The perfect being which is sufficient unto itself, which absorbs and dominates all is the State. ‘The purpose of the State is universal, It includes in its attributes ‘the entire life of the single individuals. The State has for its purpose the happiness of all through the medium of the virtue ofall. Its to bbe noted that, the classical Greek philosophy, happiness and virtue are not antithetical terms, rather they coincide, because happiness is the activity of the soul according to virtue, according to its true nature, 2 Seminal Concepts The State, therefore, according to Plato, dominates human activity in all its manifestations, Upon its rest the duty to promote {good in its every form. The power of the State is limitless. Nothing is reserved exclusively to the will of the citizens. All gomes under the competence and the intervention of the State. This absolutistic conception is opposed to that which was later sustained by other Philosophers, for whom there are well-defined limits on the action of the State ~ Kant’s Legal State. The Platonic concept is, for that ‘mater, the one with dominated in the hellenic world. Thus, the State, for the Grecks, has above all the function of educator. In the Dialogue ‘Republic we find long discourses upon this argument. The means of education, for Plato, are above all Music, which includes also the first instruction in Letters, and Gymnastics. Music begets a disposition of mind adapted to the reception of all the good and the beautiful. Next comes Mathematics, including Astronomy. After this there follows, for those most capable, the teaching of other eciences and of Philosophy. Plato is especially preoceupied with the reparation of the citizens for public life. The better individuals should come to the government of the republic through a gradual Selection, an opposite education, and only after their fiftieth year of ‘age. They should dedicate themselves exclusively to this function, which is the highest amang those of the citizen, In this conception the individual element is completely sacrificed to the social and the political. The idea that every individual ‘has certain fundamental rights of his own is entirely lacking. The State dominates in absolute fashion. To render stronger and closer. ‘knit the political organization, Plato suppresses social entities which are intermediate between the individual and the Stale. Thus, he reaches the point of sustaining the abolition of property and of the family, holding in common of women and of possessions, in such a ‘manner as to form one sole family, so therefrom will result an organic unily and a harmony of the State which is complete and perfect. This, however, is true only for the two higher classes, those which participate more directly in publie life. We are, therefore, very far from modern communistic conceptions. By Plato, at any rato, the personality of man is not adequately recognized. In vain would one seekcin Plato a condemnation of slavery. Slaves are not even included in the three classes he postulates is to exercise the functions of the State. From this we sce how much they err who are wont to consider aREADINGS IN LEGAL PHILOSOPRY AND THEORY Seminal Concepte the platonic theory as similar to those of modern socialism. Plato ‘was moved only by ethical and political preoccupations to construct his ideal State, not by the economic. ‘These, briefly, are the principal concepts formulated by Plato in the Dialogue, Republic. The Dialogue, Laws, composed later, when Plato was over seventy, has a character different from the preceding one, because it does not trace outa pure ideal, but considers instead historical reality in its contingent characteristics, and there appears often an admirable sense of practical experience. In the Dialogue, Republic, Plato had expressed the postulate that the wise should govern, according to their wisdom. In truth, if we suppose that ‘wrisdom dominates the world, laws are superfluous. If, however, we consider practicalities and human nature im the concrete, we see the necessity for them. The Dialogue, Laws, expressed precisely this passage from what ideally should be to what happens in life, and treats at length the problem of legislation. The fundamental principles of Republic remain, nonetheless, the same even in the Dialogue, Laws. Plato gives tothe State an educative function, wants the laws accompanied by exhortations and discussions to explain their purposes. In penal laws, there is essentially a curative purpose. Plato considers delinquents as sick persons, because, according to the teaching of Socrates, no man is wilfully unjust. Law is the means ‘to cure them, the penalty is the medicine. Through the effects of crime, however, the State, too, is in a certain way sick, so the health thereof demands, when it isa question of an incorrigible delinquent, that he be eliminated or suppressed for the common welfare. Tt is worthwhile, in this connection, to note the difference hetween the conception of Plato and that of the modern school of Criminal Anthropology. The latter considers delinquency as produet of physical degeneration, while for Plato the delinquent s intellectually lacking, and his sickness is aberration, ignorance of the truth, lack of virtue which is knowledge of truth. In the Dislogue, Laws, Plato shows a greater respect for individual personality, always, however, that offree men only, slaves ‘excluded. Family and property are conserved, no longer sacrificed to asort of Statism, as in Republic. The authority, however, ofthe State remains nevertheless very great and overpowering, for example in regard to the division of property, and, consequently, the division of citizens into various classes according to their income; the ~ formulation of marriages and conjugal life, subject always to amost rigorous vigilanco; musical and poetic activity, precisely regulated, 100, for edueative purposes; religion and worship, ete. Ae to political forms, Plato eriticizes both monarchy and democracy, wherein one art of the citizens commands and the other sorves. He proposes a sort of ayatesi a mined severnment, having in view especially the regime in Sparta, where, in addition to re were Senate and the Ephors, caaeedeeeeeaeREADINGS IN LEGAL PHILOSOPHY AND THEORY Seminal Concepts Comments on Plato by Cairns, The Republic* Plato took the widest possible view of law, He held that it was, a product of reason and he identified it with Nature itself. Law was a subject which he kept constantly before him, and there is scarcely a dialogue in which some aspects of it is not treated explicitly. His theory of law is a fundamental part of his general philosophy and it illumines and is iumined by the entire Platonic corpus, Like the law of the Greeks, his legal thought was never systematized as we have become accustomed to regard system in law sineo the last, century of the Roman Republic; yet it was remarkably coherent in relation to his major philosophical ideas. He was a layman in the field, as were all the Greeks, in the sense that there were no professional lawyers as we conceive their function today. But, in his Juristic thinking, he isolated a range of legal ideas among the most, important in the history of law and which have been the basis of much subsequent speculation. His influence on the law has beon large in both its theoretic and its practical aspects. The Roman jurists “have taken many ideas from Plato,” said the learned Cujas;and his, influence upon Tlellenistic law, and Uhrough its praetices upon Roman Jaw, and thus direetly and indirectly upon much of the law of modern times, has even yet not been fully appreciated. How much Plato owed to his predecessors in legal speculation is not clear, since their works survive only in fragments and are Sometimes unintelligible. Many attempts have been made to determine the meaning of the fragments and for some of them it is still anyone's guess. We owe their preservation to the fact that they ‘wore quoted by later writers who apparently regarded them as stating doctrines of importance. If we cannot in some cases make much of their meaning we are nonetheless affected by their note of passion. From Solon, Plato undoubtedly inherited a tradition that the happiness of the state depended upon the faithful observance of sound Jaws, and that it was the duty of the good eitizen to see that such laws were made. In his poetry, Solon took the view that the law should be impartial, assigning proper spheres to the rich and the “Reprint from Calrns, aga Philosophy fom Plato to Hegel, p29. All footnoten wore omitted m4 oor, * protecting both with a strong shield, and suffering neither to Proveil unjustly.” Herodotus and Pindar had a similar opinion of the importance of law. To Herodotus it was the “Master.” Demaratus, earth.” Free they are,” he said, “yet not wholly free; for law is their ‘master, whom they fear much more than your men fear you. This is my proof — what their law bids them to do, that they do; and its bidding is ever the same, that they must never flee from the battle whatsoever odds, but abide at their posts and there conquer or die.” ‘ToPindar itwas‘Lord of ll."*Law lord of all, mortals and immortals, carrieth everything with a high hand, justifying the extreme of Violence.” Anaximander declared that “ the beginning of that which is, is the boundless; but whence that which is arises, thither must it + Teturn again of necessity; for the things give satisfaction and reparation to one another for their injustice, as is appointed accordin, tothe ordering time” Among many interpretations ofthceoreens ithhas been suggested that it depicts a lawsuit before the judgment seat of Time were things present their rival claims of a right to exist, Pythagoras, iu a statomont which belongs to that realm of arbitrary speculation which has for its subject mattor the ethical import of numbers, asserted in a much vexed sentence that justice was a square number. Aristotle seemingly knew tho assertion meant sinee he denied that it was true. Modern commentators differ with Aristotle profess to find great wisdom in the remark. The poignant caying of Horaclitus do not always speak for themselves.” Men would not have Known the name of Justice were it not for things [i.e justice is known only through injustice)”; The people must fight for its law as for ite wall’; “ It is law, too, to obey the counsel of one.” Some of this utterances might be interpreted as demanding an accurate description of what happens in fact in society as a necessary basie for speculative political thought. In this aspects he may be the foreranner of modern juristie realism,‘READINGS IN LEGAL PHILOSOPHY AND THEORY Seminal Concepts ARISTOTLE'’s POLITICS Classical Natural Law In the Platonie Minos we fortunately possess an inquiry into ‘the nature of law undertaken in the full panoply of the dialectic. No comparable writing of Aristotle has come down to us. We are without any analysis of his conducted for the express purpose of stating a general and ultimate theory of law. His definitions oflaw are partial and are thus an anticipation of the practices of modern science. They are'wlways relative to the problem before him, and the aspect of law which they emphasize constantly shifts in order to permit different consequences to be drawn. In the Rhetoric to Alexander itis pointed out that ine democracy ‘the final appeal is to reason. A self-governing community is directed along the best path by its public law, and so as a king, as the embodied of reason, guides along the path of their advantage those who are subject to this rule. In a clumsy attempt to bring the two ideas together, law is then stated to be the reason defined the common consent of the community, regulating action of every kind. Later, in thesame treatise, which is a handbook on how to persuade audiences, ‘another aspects emerges. Advico is offered on how to speak in favor of a law (show that it affects all equally, that it is beneficial to the city, ete.) or against a law (show that it doos not apply equally to all citizens, ete.). For this purpose law is defined as the common agreement of the state enjoining in writing how men are to act in various matters, Aristotle argued that the nurture and occupations ‘of the young should be fixed by the law so that they would bacome ‘customary. He agreed with Plato that legislation should teach virtue. Goodness, in men, he thought, could be cccured if their lives were regulated by a certain intelligence, and by a right system, invested with adequate sanctions, Paternal authority does not have the required force to accomplish this end. But law has this compulsive power and it is the same time a rule emanating from a certain practical wisdom and reasons. Thus, while people hate men who oppose their impulses, even if they are right in so doing, they do not regard the law as invidious if it enjoins virtuous conduct. Similarly, in an action involving a contract, if the contract's existence is admitted and if that is a fact favoring the side of the speaker, that 2% circumstances ought to be “magnified” or strengthened. That can be done by calling ita “law” because a contract may really be considered. a8 a privato or special and partial law; and it is not of course the contracts which make the law binding, but itis the law which gives foree to legal contracts. Aristotle therefore suggests that, in a goveral sense, the law itselfis a kind of contract, so that whoover disregards or respudiates a contract is repudiating the law itself However, Aristotle believed that law was much more than a contract. He pointed out that if the state did not pay attention to virtue, the community became merely an alliance; “the law would be a contract, and, as Lycophron the Saphist says, a pledge of lawful dealing detween man and man.” Again, in arguing that itis difficult and perhaps impossible for a state with too large a population to have 00d legal government, he observes that law is a form of order, and 00d law must mecossarily mean good order, but an excessively large number cannot be orderly. Again, in considering whether the beet men or tho law should be supreme he observes that he who bids the Jaw rule may be deemed to bid God and reason alone to rule, but he who bids man rale adds an element of the beast; for desire ig-a wild boast, and passion perver's Ue minds of ralers, even when they are the best of men. Hence, law is reason without appetite. As he observed elsewhere, intellect is elways right, but appetency may be right or wrong. Appetency aims at the practical good which may not be good under ail circumstances, Finally, Plato had divided state organization into two parts, one the appointment of individuals to office, the other the assignment of laws to the offices. Both divisions eame under the general topic of the “constitution”. Aristotle developed a distinction between “constitution” and “laws”. As a general principle he insisted that the laws should be laid down to suit the constitutions — the constitution must not be made to suit the laws. A constitution is the organization of offices in a state, and determines what is to be the governing body, and what is the end of each community, But laws are not tobe confounded with the principles ofthe constitution. ‘They ‘are the rules according to which the magistrates should be administer the state, and proceed the offenders. Cicero observed the distinction ‘and differentiated the “optimus rei publicae status” from “logos” and thereafter it became firmly fixed in Western political thought. ‘To the extent his works have survived, it is clear that Aristotle id not reach any final definition of law comparable, say, to his ides of substance or of justice; he reveals no goneral or leading conception 2READINGS IN LEGAL PHILOSOPHY AND THEORY Seminal Concepts fit from the point of view ofits nature. This failure to state explicitly the meaning of a vital idea is not an anomaly. At the heart of Aristotle's theory of the State is the idea of but nowhere are we told plainly what the conception stands for, and itis also in analyzing his incidental remarks when the term is emphasized that we are able to ascertain tho idoa behind it. If what has come down to us represents his true view of the nature of law then he attained a position which was not reached in jurisprudence again in the twentieth century. That is to say, he saw the inherent complexity of egal phenomena, and he found no single description of it. could embrace its manifold aspects. The identification of any aspects may have significance for the task in hand; and he therefore, so far as we can judge, allowed room for them all and did not insist upon the exclusively validity of any single one. In this approach he was on ‘much sounder ground than Plato who saw law as a simple unitary phenomenon. All the elements which Aristotle emphasized have been taken separately as the single bases of subsequent systems, and most of them are factors in current legal analysis. He thought of law as a rule of conduct for the individual, perhaps the most discussed conception in jurisprudence; he stressed the ideal reason, the doctrine that legal precepts should have some basis in intelligibility and not be the mere expression of arbitrariness, force or custom; the idea of law as a contract was adopted by Epicuras Lucretius, and appears in present day opinion in the theory that its naked function is to prevent attacks by individuals on each other; when he distinguished Jaw from the constitution and defined as the rules in accordance with which court determine cases — which reappeared again in the later development of analytical jurisprudence; when he pointed out that law was a form of order he put his finger on an aspects that since Kant has been dominant in continental legal thought. Law itself, like everything in the Aristotelian system, has its end and to Aristotle it was very clear that its task was fo make men ‘good. This was deduced from premise that the state does nob exist for the sake of life only, but for the sake of the good life. But what is ‘goodness? Everyone agrees, Aristotle says, that the highest good is happiness or well-being; but that is merely a label and the main inquiry is to find out what the word means, Aristotle’s general definition is that happiness is an exercise of the powers of life in accordance with virtue throughout the whole life-time, He endeavors to show that this definition sums up and improves upon all that has 8 been said in the subject. I'it is asserted that happiness is virtue he claims to make an advanee on this by insisting that happiness is an exercise and not a mere possession of virtue; if happiness is pleasure he says that happiness is necessarily accompanied by an inherent pleasure; if it is good fortune or external prosperity he says that the functions of happiness cannot be performed without it. Thus happiness takes its origin in virtne, itissues in pleasure, and material go0d-fortune is its ordinary equipment, i ‘That this position is largely Platonic scarcely needs tobe stated. Plato had held that 2 task of law was to produce happiness in the state as a whole and that through its instramentality men could be taught virtue. However, while Aristotle's definitions satisfies the Platonic conditions for a happy life — that the goal is important on its own account and not as a means to other things, that its satisfaction appeal to us, and that it would be the final choice of the ‘wise — as a juristic formula it has several defects. In his attitude towards the nature of law, Aristotle admitted a plurality of viewpoints. Here only one position has significance; no doubt this view is a product of his teleological method which has as its object the discovery of Uw inal end. Now it is plain that the tasks of law ‘can no more can be caught within tho net of a single formula than its numorous and contradictory aspects can be confined within the limits of one definition, If we look at the police functions of the legal order, the task of law is to keep the peace; if we lock at law'as one of the instruments of control in # complex society its task is also the harmonization of disparate claims. The task is a function of the problem; and since the problems are numerous, the task are alike ‘multitudinous and are equally valid. Law may also be a means in the inculeation of established ethical ideals and the promotion of new ones, The maxims of the Institutethat the precepts of law are to live honorably, not to hurt another, to give each man his due, gives expression to ideals which if insisted upon applicable situations, such as those involving the issue of good faith in undertakings, may raise the entire moral tone of a people. Another defect in Aristotle's idea of the end of law is that it breaks down as soon as itis put into practice. However, as we have seen above, it shares this weakness ‘with all other ideals that have been proposed. ‘They do not contain enough elements to meet all concrete situations. Thus, Aristotle excludes the man of pre-eminent virtue from the operation of the Jaw. His principle is that the law is necessarily eoncerned only with 29READINGS IN LEGAL PHILOSOPHY AND THEORY those who are equal in birth and power. He maintained that anyone is ridiculous who attempts to make laws exceptional men, for probably they would say what:the lions said when the hares made Speeches in the assembly and demanded that all should have equality: “where are your claws and teeth?” This postion when stated conversely will also provide a justification of slavery. Some idea of the concrete model Aristotle probably had before him depicting the actual realization of the end of the law may be derived from the following summary: “Aristotle's political ideal is that ofa small but leisured and highly cultivated aristocracy, without large fortunes orany remarkable differences in material wealth, fre from the spirit of adventure and enterprise, pursuing the arts and sciences quietly while its material needs are supplied by the labor of a class excluded from citizenship, kindly troated but without prospects. Woirmar, in the days when Thackeray knew it as a lad, would apparently reproduced the ideal better than any other modern State ane can think of” Goethe found Weimar the most satisfactory place in the world in which to live; nevertheless it seems possible to devise other ideals which would have a wider appeal. ‘Aristolle eld Uns Ue law Ins uo power Wo command vbwdivnce except of that habit, which can only given by time. This assertion, like many others, reveals the clear unity of his thought, If obedience to law is based on habit, then, as he says, a readiness to change from old to new laws enfeebles the power of the law. Inasmuch as law has a psychological basis, education also has a major role in Aristotle's theory. It assists in making obedience to law second nature to the citizons. Ho belioved that the best means to socure tho stability of constitutions is a system of education suited to the constitutions; for thereis no merit in the most valuable laws, ratified by the unanimous judgement of the whole citizens, ifthe citizens are not trained and ‘educated in the constitution. The state must begin the edueation ‘arly, for ifa man is to lead the good life he must practice it a long time, Aristotle's aphorism “It is hard to be good? is often quoted. But he also said: “A life of virtue ceases to be painful when you get used to it” ‘There is apparent paradox here which should be noted in passing. If the citizen is to be educated in the spirit of the constitution, ‘what happons if tho constitution is a bad ono? Will the citizen be able to live the good life” Aristotle's answer, and itis not clear whether 0 KOLAR Sra Seminal Concepts itis given normatively or descriptively, is that the citizen should be ‘exiucated in the aims of the constitution, whether good or bad. Thus the citizen may be taught to be an evil man, During the Reformation the question took on practical importance and became sharply focused in the test issue” It is lawful to kill tyrants? Melanchthon thought that Caesar was unjustly killed; but Luther apparently took a Aifferent stand. In view of tho reo of authoritarian government it ‘ay once again cease be an abstract matter. In the doctrine of the categories, conduct comes under the heading of Quality. Virtue is a Quality and Aristotle assumes that the category has four divisions: habits, or tendencies to do a thing; capacities for doing a thing; feelings passions and emotions prompting us to do a thing; and external farm or shape. In which classification does conduct fall? Aristotle does not trouble to mention form or shape, which is used in describing a man’s appearance, since character is here alone in question. Conduct is not to be classified under feeling —eg., desire, anger, fear, confidence, envy, jox, love, hate, longing, emulation, pity — because no one is praised or blamed for having feelings, but for the manner in which we actually do so. If their conduct is neither a feeling nor a capacity, it must be'a habit or sottled tendency to actin a certain way. Good conductis not acquired from nature; if it were it could not be changed and moral training would be impossible; however, we owe nature something, for she gives us the capacity for good conduct. Nor it, does not come from teaching, Character depends on what you do and not on what you are told to do, Most people, instead of acting, take refuge in theorizing; they imagine that they are philosophers and that philosophy will. make thom virtuous; in feet, they behave like people who listen attentively to their doctors but never do anything their doctors tell them. People who doctor themselves that way will never get well. Habituation therefore is the only method of acquiring that. settled tendency to do acts of a certain kind, It is by doing acts of a given kkind and as a consequence of these acts that we become good or bad, as the case may be, just as in the arts; by playing well you come to be a good player, and by playing badly, a bad one. This truth is attested by the experience of the states: lawgivers make the citizens good by training them in habits of right action — this is the aim of all legislation, and if it fails to do this, it is a failure;that is what distinguishes a good farm of constitution from a bad one, atREADINGS IN LEGAL PHILOSOPHY AND THEORY ‘Seminal Concepts Theory of Legislation Aristotle's normative view of the law is clearly apparent in his theory of legislation. That law prescribes certain conduct; that conduct of a brave man (e.g. not to desert or run away ar to throw away his weapons), that of a template man (eg. not to commit adultery or outrage), that ofa gentleman e.g. not to assault or abuse), and so with all the other virtues and vices, prescribing some actions and prohibiting others — rightly ifthe law has been rightly enaciod, not so well if it has been at random. The science of legislation must be learned like any other science. No doubt it is possible for a particular individual to be successful treated by some one who is not a trained physicians, but how has an empirical knowledge based on ‘careful observation of the effects of various forms treatment upon the person in question; just as some people appear to be their own best doctors, though they could not do any good to someone else. Nevertheless, it would doubtless be agreod that anyone who wishes to make himself a professional and a man of science must advance to general principles, and acquaint himself with them by the proper ‘method: for science deals with the universal. So presumably a man who wishes tomake other people better by discipline, must endeavor to acquire the science of legislation — assuming that itis possible to make us good by laws. For to mold aright the character of any and every person that represent himself is not a task that can be done by anybody, but only (if at all) by the man with seientific knowledge, just as is the case in medicine and the other professions involving 2 system of treatment and the exercise of prudence. This is an enlargement ofthe Socratic theory that the virtue is knowledge; since our passions and emotions are not good or bad but are ethically neutral, they must be trained to make us desire what is right; mere knowledge is not sufficient to make us do right. Plato had held that legislation should be so framed that it could be incorporated in a manual of instruction for the young, Aristotle does not take exception to this view but he indulges in a severe criticism of the Sophists for attempting to teach legislation from existing codes of law. From whom then or how, Aristotle asks, can the science of Jegislation be learned? He answers: Perhaps like other subjects, from the experts, namely, the politicians, for legislation is apparently a 2 branch of political science. But thore is this difference between political science and all other sciences. In these, the persons who teach the science are the same as those who practice it, for instance, physicians and painters: but in the polities the Sophists, who profess to teach science, never practice it. It is practices by the politicians, ‘who apparently rely more upon a kind of empirical skill than on the exercise of abstract intelligence; for we do not see them writing or lecturing about political principles (though this might be 2 more honorable employment than composing forensic and parliamentary speeches), nor have they ever made their cons or friends into stateemen. Yet we should expect them to have done so if it were in their power; they could not have bequeathed any better legacy to their country. Still it must be admitted that experience does much good; for we see that those who live in political environment beeome politicians. It follows those who aspire to a scientific knowledge of polities acquire practical experience as well as theory. : However, those Sophists who profess to toach polities are found to be very far from doing so successfully, In fact they do not know what it is, or what it is concorned with; otherwise, they. would not classi as identical with, or even inferior to, the art of rhetoric. They ‘would not have thought it easy to legislate by merely collecting such laws as are held in high repute, and selecting the best of thom — as if'the selection did not demand intelligenco—as ifall did not depend on deciding rightly! Who, we would ask, is the intelligence the judge of the product of any art — of the musieal composition or painting? ‘The expericnced musician or painter. Now laws are the produet, so to speak, of the art of polities. How then can a mere collection of Jaws teach a man the science of legislation, or make him able to judge which of them is the best. We do not see men becoming expert physicians from a study of medical handbooks. Yet medical writers attempt to describe not only general courses of treatment, but also methods of cure and modes of treatment for particular sorts of patients classified according to their various habits of body; and their ‘treatise appear to be of value for men who have had practical ‘experience though they are useless to the novice. Very possibly, therefore, collections of laws and constitutions may be serviceable to students capable of stadying them eritieally and judging what measures are valuable or the reverse, and what kind of institutions 33READINGS IN LEGAL PHILOSOPHY AND THEORY Seminal Concepts are suited to what national characteristics. But those who examine such compilation without possessing a trained faculty cannot be capable of judging them correctly, unless, indeed, by accident, though they may very likely sharpen their political intelligence. Aristotle includes that as his predecessors had left the subject of legislation unexamined he will proceed to state its general postulates, a statement exceedingly unfair to Plato who had worked out an elaborate legislative theory. Accordingly, Aristotle laid down a series of prineiples to control and guide the legislative process. The best legislators, he believed, were from the middle class, giving as instances Solon and Lycurgus and remarking that in fact almost the greatest number of the other lawgivers had that status. In the Laws Plato had said that the legislators ought to have his eyes directed to two points — the people and the country. As an example Plato cited the Cretan lawgiver who ‘chose for the Cretans bows and arrows which were the most suitable arms for swift runners in a hilly country like Crete. Aristotle accepts this principle but adds to it the corrollary that neighboring states must not be forgotten by the legislator if the state for which he Jegislates 1s to have a political life, that isto say, a hfe of intercourse with other states. A nation’s arms should be such as to enable it to ‘meet its foes in its own territory and in theirs, something bows and arrows would not enable it to do. For this reason there must be a fleet, the government must be organized with a view to military strength, and the legislator must pay attention to the foreign relations of the state. Stil, the legislator should not make conquest the aim of his stato; it is the province of the legislative art, if the stato has neighbors to consider what the practices should be in relation to each sort of neighbor: It was a mistake for the Lacedaemonians legislators to Jay down one indiscriminating rule; the rule ought to vary in accordance with the character of the neighboring state. Socrates had maintained that laws affect only the internal organization of states, and not their mutual relations Cicero does not, properly speaking, belong to any school, but he felt the influence of many, beginning with the Stoic to which belonged his teacher, Poseidonius. He was eclectic. The titles and the form of some of his works, for example, De Republica, De Legibus, were platonic; the content is also Aristotelian and stoic. We find, in other words, repeated there the basic concepts of the best Greek u Philosophy expressed in elegant and clear form so that they are rendered easily accessible to the Roman people. Cicero lies frequently on natural good sense, on the common persuasion of men, and s0 gives to his discourse a popular character. His principal thesis is that Law is not a product of choice, but is given by nature: “Natura Juris ab hominis repetenda est natura,” There is, as the Stoies had taught, an eternal law which is an expression of universal reason, He, therefore, refutes the Skeptics who, having affirmed the impossibility of knowledge and the changeableness and relativity of all things, had deduced the impossibility of an absolute Justice. Carneades, especially, had asserted this and by his skeptic preaching hhad created in Rome a certain amount of disturbance as he shook. common opinions and maintained that the criterion of what was just was not founded on nature. i Cicero opposes these arguments and observes that not everything which is put down as Law is just, for in such a ease even the laws of tyrants would be Law. Lew is note based upon arbitrary opinion, but there is a natural, immutable and necessary “just,” as is proved by testimony taken from the very conscience of man. This concept is developed by Cicero with great eloquence: “Bot quidem vera lex recta ratio, naturae congruens, diffusa in omnes, constans sempiterna .. neque est quaerendus explanatar, aut interpres eius alius. Nec erit alia lex Romae, alia Athenis, alia nunc, alia posthac, sed et omnes gentes et omni tempore una lex, et sempiterna, et immutabilis continebit .. eui qui non parebit, ipse se Fugiet, ac nuturam hominis aspernatus hoc ipso luet maximas poenas, ‘etiamsi cetera supplicia, quae putantur, effugerit Besides this jus naturale and in intimate connection therewith there exists a jus gentium observed by all peoples which serves as a basis for their mutual relations because itis based upon their common needs, though with the modifications which various circumstances make necessary. Finally, there is jus eivile, that which is in force for each people in particular. Between the termini of this trichotomy, jus naturale, gentium and civile, there is, however, no contradiction, sinee they are rather determinations of one same principle which vary only in degree. : The Roman Jurists had, in general, a philosophical’ culture, Stoicism was, among all the systems of Greek philosophy, that which in Rome had the greatest success because it corresponded better to 36‘READINGS IN LEGAL PHILOSOPHY AND THEORY Seminal Concepts the austere nature, the strongly temperate character, of the Roman citizen. Likewise, the cosmopolitan ideal of the Stoies had a certain positive echo in the growing dominance of Rome. The concept of a natural law, common to all men, became a familiar one to the Roman Jurists,a belief, asit were, which was implicit, was to be understood, in their very notion of positive law. The foundation thereof is precisely the naturalis ratio which means not mere subjective, individual, reason but that rationally which is innate in the order of things and is therefore, superior to the human will. There is, therefore a law of nature, immutable, not artificially made but already existing, inborn. Ttis a uniform law, not subject to change by the action of men. Natural law is defined, in this sense, by Paulus as “id quod semper bonum et ‘aequum est.” Ulpian gives a formulation of natural law which is not foand in. other writers. Natural law, says he, is “quod natura omnia animalia docuit.” He thus extends the force of natural law even to animals in general. In substance, however, he merely gives definite expression to what was for all a solid principle, namely that the basis of Law lies in the very nature of things, in those driving forces which, though more developed in man, are nonetheless present in embryonie form ‘even among the lower animals. ‘The concept of jus naturale is connected with that of aeguitas. Aequitas, properly speaking, indicates an oqualizing, an equal ‘treatment of things and relationship which are equal. Itis a criterion ‘which obliges us to recognize that which is identical in the substratum ‘of things, beyond the changeable and the accidental. ‘The idea of equity and that of natural law thus become factors of progress in Law. Positive law is a modification of natural lav, with elements of the accidental and of the arbitrary. The conditions of places and of times change, utilitas suggests particular norms, and this the Roman Jurists recognize folly; but nevertheless there is im them a constant tondeney to bring Law back to its more basic ideas, to compare the norm with its natural foundation, removing discords and inequalities, comparing and equalizing, in such wise as to correet that which is inequitable or unreasonable, THE ROMAN JURISTS CICERO — DE LEGIBUS Translated by C.W. Keyes The Leob, Classical Library, New York. G.P. Putnam’s Sons, 1928. {Marcus.] Well then, the must learned men have determined to beg in with Law, and it would seem that they were right, if, according to their definition, Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite, This reason, when’ firmly fixed and fully developed in the human mind, is Law. And so they believe that Law is intelligence, whose natural function it is to command right conduct and forbid wrongdoing. They think that this quality has derived its name in Grock from the idea of granting tn every man hie own, and in ottr language I believe it has been named from the idea of choosing. For as they have attribute the idea of fairness to the word law, so we have given it that of selection, though both ideas belong to Law. Now if this correct, as I think it to be in general, then thé origin of Justice is to be found in Law, for Law is a natural force: it is the mind and reason of the intelligent man, the standard by which Justice and Injustice are measured. But since our whole discussion has to do with the reasoning of the populace., itwill sometimes be necessary ‘to speak in the popular manner, and give the name of law to that which in written form decrees whatever it wishes, either by command or prohibition. For such is the crowd’s definition of law. But in determining what Justice is, let us begin with the supreme Law which had its origin ages before any written law existed or any State had ‘been established. (Book I, VI, pp. 317- $19.) (ML) I will not make the argument long. Your admission leads us to this: that animal which we call man, endowed with foresight and quick intelligence, complex, keen, possessing memory, fall of reason and prudence, has given a certain distinguished status by the supreme God who created him; for he is the only one among 60 many different kinds and varieties of living beings who has a share 7READINGS IN LEGAL PHILOSOPHY AND THEORY eee oo jn reason and thought, while all the rest deprived of it. But what is more divine. I will not say in man only, but in all heaven and earth, than reason? And reason, when it is full grown and perfected, is rightly called wisdom. Therefore, since there is nothing better than reason, and since it exists both in man and God, the first common possession of man and God is reason. (Book I, VIL, p. 921.) IM.) Morever, virtue exist in man and God alike, but in no other creature besides; virtue, however, is nothing else than Nature perfected and developed in its highest point; therefore there is a likeness between man and God. (Book I, VIIE, p. 325.) (MJ The next point, then, is that we are so constituted by Nature as to share the sense of Justice with one another and to pass iton to ‘all men. And in this whole discussion I wantit understood that what { shall call Nature is [that which is implanted in us by Nature]; that, however, the corruption caused by bad habits is so great that the Sparks of fire, so to speak, which Nature has kindled in us are extinguished by this corruption, and the vices which are thei ‘opposites spring up, and are established. But if the judgements of fon were in agreement with Nature, so that, as the poet say, they considered “nothing alien to them which concerns mankind,” then ‘Justice will be equally observed by all. For those creatures who has received the gift of reason from Nature have also received right reasons, and therefore they have also received the gift of Law, which isright reason applied to command and prohibition. And if they have received Law, they have received Justice also. Now all men have received reason; therefore all men received Justice. Consequently Socratos was right when he cursed, as he often id, the man who first separated utility from Justice; for this separation, he complained, is the source of all mischief. (Book I, XII, pp. 333-395.) (M.] But if Justice is eonformity to written and national customs, and if, as the same person claim, everything is to be tosted by the standard of utility, then anyone who thinks it, will be profitable to him will, he is able, disregard and violate the laws. It follows that Justice does not exist at all, ifit does not exist in Nature, and if that form of it which is based on utility can be overthrown by that every “utility itself, (Book J, XV, p. 345.) [ML]... Or, fa law can make Justice out of Injustice, ean it not ‘also make good out of bad? But in fact we can perceive the different Detween good laws and bad by referring them to no other standard 8 Seminal Concepts than Nature; indeed, it is not merely Justice and Injustice whi ‘vehenenati and ishonburble Porcine an neligenen came to us all makes things known to us formulates them in our minds, Tonouraileactons ee aerbed y's oaeeee aed actions to vico; and only a mad man would conclude that these judgments are matters of opinion, and not fixed by Naturo, For virtue is reason completely developed; and this certainly ig natural therefore everything honourable is likewise natural. .. (Book I, XVI, p.347) ace [M,] To close now our discussion of this whole subject, the already been said is this: Justice and all things honouradle aro to be sought for their own sake. And indeed all good men love fairnoae in itself and Justice in itself, and it ia unnatural for a good man to ake such mistake as to love what does not deserve love for itself ‘Therefore Justice must be sought and cultivated for their own sake and if this is true of Justice, tis also true of equity; and ifthis is the case with equity, then all the other virtues are also to be therished for their own sake. (Book I, XVII, . 351.) Comments on Cicero by Cairns Cicero knew many kinds of law but his legal th ler the tnfiuence of a commonplace Sts idea, was domineted by the conception of a “true law” (vera lex) He knew lex as the written law, andi not nly as denoting what sight and fai, but aw in the 1most general sense of the word and also as referring tystem of lave Ins plural form tara wore tho ondaansss, salen, rules of law, decision on points of law; iura were also the separate provisions, ex the whole enactment containing them. He knew also the divine aw far, One of Cicer cntsbations to peso wes the invention of a Latin philosophical vocabulary which reappeared in modern European languages. Thus we find him using as importations from Aristotle ius or lex naturae in the sonse of an ideal law which may or may not have an existence in universal practice, but which ought to have, Similarly, the ius civile, the law governing citizens, has its Aristotelian counterpart. As a colloraryREADINGS IN LEGAL PHILOSOPHY AND THEORY to the ius naturae Cicero employed the phrase _gentium, which he stated had been used by his predecessors; by the phrase he apparently meant, when he wanted to distinguish it from the ins naturae, legal usage actually existing everywhere as distinguished from the ideal law (ius naturae) which might not exist. us gentium was a world ‘common law, the principles applicable to cases in which the parties ‘were not both Roman citizens and in which, therefore, no appeal ‘could be made to the ius civile. He used the phrase ius communis to mean the law which he and the person whom he is addressing acknowledge. He thought of customary law (consuetudo) as that which has been approved by common consent of long standing and which may not have been ratified by statute. He drew a sharp distinetion between public law and private law. He had many more phrases and combinations of phrases to denote further kinds of law. Plainly, we are in the presence of a man to whom legal distinctions ‘were important and who was fortunate enough to have before him a body of material which would permit the making of distinctions, Cicero perceived three kinds of law operating in the world and this classification apparently embraced all the forms with which he was faunitiar, There is first the heavenly law (lex cacleatio). Ho observes it has been the opinion of the wisest men that law is not a product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom in command and prohibition. Thus they have been accustomed to say that law is the primal and ultimate mind of God, whose reason dirocts all things either by compulsion or restraint, Therefore, that law which the gods have given to the human race has been justly prai is the reason and mind of a wise lawgiver applied to command and prohibition. Plato's playful account of the origin of law may have been in the back of Cicero's mind as he set forth this idea, although as he develops its main foundations, it is obviously Stoic. In the old days Plato pointed out Cronos ruled us through his daemons. Today there is in man a divine part — his — mind — and this divine element must do as Cronos did and appoint subordinate ministers for our government. These ministers we may call not faimovas but ILavontas “the arrangements” or “appointments made by the intellect” and to which we give the name of “laws.” Elsewhere Cicero refers to the contention that nothing is more divine then reason and quotes 0 Seminal Concepts i Reseed Chrysippus as identifying Jupiter with the mighty law, everlas tnd etomal, whic is our guide of ie and instructs ney aa which he entitles Necessity or Fate, and the Everlasting'Truth of future events, That hehas in mind e kind oflaw distinct frotn naturel Jaw is clear from his discussion of wrongly gains as being'contrary to the law of nature (in this case ius gendium), the statutes of particular communities, and the “Reason which is in Nature, which is the law of gods and men” (ipsa naturae ratio, quae est lex divina et humana), ‘At the point in the dialogue of De Legibus at which Cicero first dovelops the idea of law as the ultimate mind of God his brother Quintus interrupts him and demands a fuller explanation. He remarks that Cicerohas, on more than one occasion, already touched on this topic. But before Cicero comes to treat of the laws of peoples, Quintus would be grateful if he would make the character of this heavenly law clear io i, ao that the waves of habit may not earry im awway and sweep him into the common mode of s haan de of speech on such, Cicero agrees that there should be a true understanding of the matter, He quotes a rule from the Twelve Tables and observe that it, together with other rules of the same kind, is called “lave” These commands and prohibitions of nations have the power to summon to rectitude and away from wrongdoing. However, this power is not merely older than the existenco of nations and states, itis coeval with that God who guards and rules heaven and earth. For the divine mind cannot exist in a state devoid of reason; and divine reason ‘must necessarily have this power to establish right and wrong. Prior ‘to written law reason existed, darived from the nature of the universe, ‘urging men to right conduct and diverting them from wrongdoing and this reason did not first beeome law when it was written down, but when it first came into existonce; and it came into existence simultaneously with the divine mind. Therefore, the true and supreme lav, whose commands and prohibitions are equally authoritative, isthe right reason of the Sovereign Jupiter. * Lactantius has preserved for us an eloquent passage by Ciger describing the lx cules at greater lengths Thor isifacka te Jaw, right reason, agrecing with nature, diffused among all mon, unchanging and eternal; it summons to duty by its eommands, and deters from wrong by its prohibitions, Its eommands and prohibitions aREADINGS IN LEGAL PHILOSOPRY AND THEORY, SS ere cea ica armel te in ee cannot be freed from its obligations by senate or people, and we need cern da te ‘will not lay down one rule at Rome and another at Athens, or. ‘different: Filet date ea ‘unchangeable, binding at all times upon all peoples. ‘There will be, Seen neg mene is the author of this law, its interpreter, and its sponsor. The man ‘who will not obey it will abandon his better self, and in denying ‘the true nature of a man, will thereby suffer the severest of ‘penalties, Fe eral ae . doctrit of the Logos: aoe ee ae cece ine ns amet of ee that “all things happen in accordance with the Word” and that men Se aac ee eee its law, and much more strongly still; for all rapes are ving a rm fa ue nt transformed by the Stoies into the doctrine of a which ruled the enon yh el answer the argument of Plato’s Republic and to ‘show that the perfect smegma end yo “Athenian,” but would follow Socrates and regard himself as a native and citizen of the world. At the basis of this specalat ion was the belief, taken over from physics, that the universe is governed by Jaw, which essentially is the law of reason. Morality as an expression of reason represents the commands and prohibitions of the divine I ee ea thing er ee oe Hi ean ew rr em Saee cand in ee es Cn a ee er Chrysippus' definition of law as the Queen of all things, human and divine, a paraphrase of Pindar. ‘ Although the Roman jurists were able to work the | Logos out in practice by means of the doctrine of the law of nature, the imagination 2 Seminal Concepts of the Stoics was too idealistic to foresee the possibility of its uso in the positive law. Zeno wanted to abolish law courts. altogether. He also argued that the practice of permitting both sides to be heard in an action at law ended in a dilemma. If the plaintiff has plainly proved his case, there is no need to hear the. defendant, for the question is at an end; ithe has not proved it, itis the same case as if the plaintiff had not appeared to prosecute his cause when the case was called, or had appeared and offered no evidence; so that, whether the plaintiff has proved or not proved his case, the defendant should not be heard. To this Plutarch replied that Plato had either proved or not proved those things which he set forth in the Republic; but in neither caso was it necessary for Zeno to write against him. : Cicero as a practical lawyer attempted to give concrete meaning to the idea of a lex caelestis. As an instance he cited the case of Cocles who took his stand on a bridge alone, against the full force of the enemy, and ordered the bridge broken down behind him. He was obeying the “law of bravery.” an illustration of the positive or command aspect of the lex caelestis. For its negative or prohibitory side Cicero cites the case of Sextus Tarquinius who broke the “eternal law” against rape by violating Lucretia. It is a weakness of Cicero that in his efforts at concreteness he is not able to rise above the level of the wall motto in his moral precepts. Cocles’ conduct was a noble act of bravery. But should the law command such conduct in all similar eireumstances with penalties. ‘Therefore, Cicero says, law is the distinction between things just and unjust, made in agreement with thet primal and most ancient of all things, nature; and in conformity to nature’s standard are framed those human laws which inflict punishment upon the wicked but protect the good. This is his formal definition of natural law (ex naturae). Plato had argued that law is a good and that what is not beneficial to the state is not a good, and hence a bad law is no law, Cicero's analysis reproduces this argument, but adds the idea of nature as the standard by which to test the goodness or badness of a law. However, it is far from clear what Cicoro. meant by “nature.” Chrysippus had defined the highest good “as life in accordance with nature, or, in other words, in accordance with our own human nature as well as that of the universe.” Apparently 48