12 Roman Political Thought: Roman Law and Cicero

Sreerupa Saha

TABLE  OF  CONTENTS

5.1   Objectives

5.2   Introduction

5.3   Roman Political Thought

5.3.1 Features of Roman Political Thought

5.3.2 Roman Concept of Citizenship

5.3.3 Difference between Greek and Roman Political Thought

5.4   Roman Law and Cicero

5.4.1    Roman  Law

5.4.2   Cicero and the Roman law

5.5   Assessment and Evaluation

5.1   Objectives

After going through this module, you should be able to

• Understand the features of Roman Political Thought
• Have a brief idea about Roman Citizenship
• Comparison between Greek and Roman Political Thought
• Understand the concept of  Roman Law
• Cicero and his concept of Roman Law.

5.2   Introduction

The Romans derived their philosophical ideas from the Greeks, they gave it a more definite shape, which mark an advance over Greek thought. Roman empire was vast compared to that of the Greek. Here one finds that democratic city state became the despotic world empire. The Romans, however, were able to tackle the diversities by establishing universal system of law, throughout the empire. It survived for several hundred years mainly because of magnificent system of law. The Roman theorist like Polybius, Cicero and others for the first time spoke of universal citizenship. Romans loved to indulge more in action and not in speculation. They could not produce any theory, they conveyed their ideas through their activities.

5.3 Roman Political Thought

5.3.1 Features of Roman Political Thought

Stoicism formed the predominant political philosophy of the Romans. They also borrowed from the non-stoic Greek political thinkers. Practical minded Romans cared more for the developed institutions than for the evolution of political philosophy. The Romans systematized the Greeek political thought, and in doing so, formulated a new body of principles which constituted an improvement of the political thought of the Greeks. The new principles are broadly concerned with

• Creation of positive law.
• Separation of politics and ethics.
• Distinction between state and society.
• Political sovereignty and legal personality of state as the maker of laws.

i. Roman Conception of State: Whereas with Plato and Aristotle the state absorbed the individual completely.

Romans thought the state to be natural and necessary. They distinguished the state from the individual. The

state as well as the individuals had definite rights and duties. The Romans laid emphasis on the individual

and the state existed to protect the rights of the individual and against the state itself, which was recognized

to be a legal person as much as the individual. This was the basis of Roman private law.

ii. Popular Sovereignty: While the state was the legal sovereign, the political sovereignty lay with the people

as a whole. In theory, even the emperors were representative agents of the people. The emperor was the

fountain of law because the sovereign body of citizens had delegated to him their own authority. The

delegation was irrevocable and could not be withdrawn. There was no redress against the abuse by officials

of their delegated authority. Revolutions were unjustified.

The legal fiction of the monarch receiving his powers from the Roman people was later overshadowed by the theory that the imperial authority was a divine gift.

Not only did political sovereignty lay in the people but even the laws were made by the magistrates in agreement with popular assemblies. The idea of sovereignty of the people was never lost of sight during the entire Roman period. The idea of popular sovereignty became more prominent during the Republican period.

iii. Roman Imperialism: Romans did not believe that any individual had a particular and absolute right to rule

over them because of hereditary claims. The king possessed absolute power of the state, was high priest and

was responsible for peace and war. Power was a gift to him but this gift was absolute.

The first Roman political philosopher who wrote on Roman government was Polybius. He began his writing by giving the cause of the origin of the state. He classified, like Aristotle, the government into – monarchy, aristocracy and democracy with their perversions like tyranny, oligarchy and extreme democracy. To him the earliest type of government was monarchy. He considered a mixed type of government as the best safeguard against political revolutions. In the Roman constitution the consuls represented the principle of monarchy, the senate represented aristocratic principle and the popular assemblies were democratic. Overall, there was nothing much original in the political philosophy of Polybius.

Cicero, who wrote about a century after Polybius, was the greatest Roman representative of the stoic school of political philosophy. During his time political conditions of Rome were chaotic. The economic changes had sharpened the hostility between the Patricians and the Plebians and had made the old system of checks and balances unworkable. He too like Polybius believed in a mixed type of constitution. His book ‘De Republica’ and ‘De Legibus’ represent an appeal for the restoration of old mixed constitution with its healthy systems of checks and balances. Like the ‘Republic’ of Plato, Cicero’s ‘De Republica’ is in the form of a dialogue. Like Plato, Cicero tried to visualize an ideal state and laid down the principles of morality. Being a stoic he believed state originated in social institutions of man. Cicero gave it a political complexion. In ‘De Legibus’ he laid down that civil and constitutional law must be based on natural law and reason. He emphasized on the importance of justice in a state. He believed in the universality of law and nature and preached the Doctrine of Universal Brotherhood.

Therefore Gettel remarks that the political ideals of the Greeks and Romans were complementary. Romans had no genius yet their political systems excercised great influence. Romans gave to the world not political philosophy but the idea of representative law.

Thus the first contribution of the Romans was the concept of law. Its influence on forming the basis of civil law of many countries cannot be denied.

• The Romans contributed to the idea of order. Before the beginning of the Christian order Rome had developed into a world state. They prepared order to the Greek notion of liberty. Individual liberty was crushed for the maintenance of order.
• The Romans achieved unity. The growth of the Roman empire knit together. There was a sense of unity among the people.
• The Romans developed the concept of centralized despotism. Rome was the nerve centre of the empire and vastness of the empire made centralized despotism a political necessity.
• The all comprehensiveness of the Roman empire resulted in the growth of the idea of cosmopolitanism. Similarity of conditions leveled down distinction between men and led to the growth of the spirit of brotherhood.

5.3.2 Roman Concept of Citizenship

In order to understand Roman citizenship the entire Roman period may be divided into three phases. Rome made her appearance in history as a monarchic city it then entered into the republican era and finally this era after a couple of centuries transformed to the period of Roman imperialism. During monarchic period, political rights belonged to only a part of the population, known as patricians. The remaining part known as plebians did not enjoy any right to citizenship.1

The idea of the Roman political thought regarding citizenship is very significant in the history of political thought. The Roman theorist has established the concept of citizenship on the ideal of universalism and has thus extended and glorified the consciousness of citizenship. They said that right of citizenship should not be the monopoly of elite class. They also added that right of citizenship should be extended among all the people.

The Roman political thinkers opined that the law should not be distinguished between the people of the society. It should not be distinguished between upper class and the lower class or between the elites and the common masses of the society. They were inspired by the consciousness of equality of all the people therefore it can be said that apart from propagating the idea of universal citizenship that was liberal and humane. The stoic philosophy propagated the ideals of equality, fraternity and universality among the people and the ideal of universalism inspired and influenced Roman political thinkers like Cicero, Polybius and others.

Romans wanted to establish world cities in place of small city states. They believed that only within a large republican state the ideal of universal citizenship as well as world citizenship can be realized. The ideal of universal citizenship as evolved by Roman political thought developed on a very realistic basis. The consciousness of world citizenship primarily developed as a result of military conquest, the Roman’s did not make them slaves but made them citizens, who enjoyed all the rights equally with the Romans. With the expansion of the the Roman Empire through war from 90B.C. onwards, new areas and territories came under the controls of the Roman Empire. The people of these areas were all given full citizenship rights. As a result the idea of Roman citizenship expanded to a great extent. In a word, this qualified citizenship enjoyed by many of the allies took them to the path of agitation which ultimately led to their full citizenship. But the conquered peoples of the areas beyond the Italian peninsula had hardly any political rights and so little guarantee against administration by a despotic Magistrate except the possibilities of his impeachment at Rome after the expiration of his office.

Thus it can be said that the right of universal citizenship as propagated by the Roman Political Thought was extended to all human races. It was neither confined to the people of any particular state nor to any especial class or strata of population. In this regard the idea of universal citizenship of Rome was totally different from the narrow and elite centric citizen of ancient Greece. The Romans were interested in expanding the right of citizenship among the entire human race. So on the one hand, they have recognized the humanity of the human beings and on the other hand they have tried to eradicate the artificial discrimination among the people and have inspired them to become members of the international society. Therefore through the idea of Roman citizenship humanism, fraternity and universality have got manifestation.

5.3.3 Difference between Greek and Roman Political Thought

Gettel remarks that the political ideals of the Greeks and Romans were complementary. He observes “ In contrast to the Greek ideas of liberty and democracy, Rome placed chief emphasis on the ideas of law, order and unity.” 2 The weakness of the Greeks, lay in their inability to overcome internal strife and external conflict which cost them their political independence.

The Roman world was destitute of any great political philosopher. Polybius, Cicero was only a poor comparison with Plato and Aristotle in the field of political speculation. The democratic city state

1 Ghosh Birendranath (2004), Glimpses of Political Thought, Mahila Mangal Prakasani, p 29

2 Ibid p 30

became despotic world empire. In the west Greeks ideals of democracy, autonomy and liberty were replaced by the Roman ideals of purity, order, universal law and cosmopolitanism.

Some of Rome’s unique achievements were that she unified her population and brought the western world under her imperialist control. But in the process she crushed the individual liberty and transformed the republican city into the autocratic empire. Rome was compelled to destroy the Greek conception of freedom and democracy as well as to make the state highly centralized and powerful. Liberty degenerated into anarchy in Greece, order became tyranny in Roman empire. But cosmopolitan power of Rome and the stoic – Christian conception of brotherhood laid the foundation of modern viewpoint.

Unlike the Greeks, the Romans kept away the moral rules and never allowed them to have any role in the sphere of politics. As political life of the Romans was marked by unwavering trust in positive laws, it was possible for them to draw a clear line of distinction between politics and ethics. Therefore, in all their actions, including the political, it was not morality but law that was taken to be their ultimate guide.

The Romans indulge in no abstraction. They looked state as legal association and has its own rights and duties. The Romans ascribed supreme authority to the state but this they did on the basis of the argument state represented a superior moral force. The state to them was supreme because it possessed the legislative omnipotence. State as the maker of laws binding on the state as well as individual. On the other hand Greeks considered the state as an ethical association for the attainment of virtue. The Greek political thinkers regarded the state as an ideal, provided the yardsticks of a good administrator and a good citizen and pointed out the essentials of a good administration.

The state was thus viewed as a legal person exercising its authority within the limits of law and the individual was no less a legal person. They thought that like the state, individual, as a legal person, had his clearly defined rights and duties. The laws of the state were to see that the rights of neither the state nor the individuals were infringed. In this way, the Romans, unlike the Greeks, separated the individual from the state. In fact to the Romans, both the state and the individuals enjoyed separate and autonomous areas of activity. Romans were first to recognized a clear distinction between state and society and this idea was totally unknown to Greek philosophers, who could not but identify the state with society. This contribution of the Romans has been regarded as the historic contribution in Western political thought.

The idea of universal citizenship was totally different from the narrow and elite citizenship of the Greece. The Greek political thinkers wanted to confine the right of citizenship only among the upper class of the society, namely, among the ruling class and the warrior class. But Romans did not believed in such a concept of divided citizenship. They spoke of extending the right of citizenship to all the people of the state. They also wanted to expand it to the entire human race unlike the Greeks.

Greeks believed law was to be found in reason itself. Nature was the source of law, and human reason was the means through which nature’s wishes could be discovered. The duty of the state was to apply law rather than to create it. Romans argued that law was rule over all and must make equal treatment to all and thus we identify that the Roman law breathed an air of cosmopolitanism throughout the empire. Romans emphasized on universality of law and legal equality for all.

5.4 Roman Law and Cicero

5.4.1 Roman Law

The Roman laws were codified by means of the Twelve Tables and the courts controlled by the patricians were made subject to the laws of these Twelve Tables. The internal social problem of Rome was thus being solved out by means of the leveling influence of law. Rome was fighting externally to extend the frontiers of her political rule. By the end of 3rd century B.C. Rome became one of the major Mediterranean powers. The problem was to consolidate and maintain the vast empire and the Romans tried to meet this problem by establishing a uniform system of law throughout the empire. Roman empire survived for several hundred of years mainly because of Rome’s magnificent system of law.

People living in different territories found that it is safe for them to be ruled by Rome since the Roman laws gave security and regularity in life. Their life was dependent on the justice of the law courts. Roman law remained unchanged inspite of change in the ruling rod. Under Roman law all members of the empire could earn the status of Roman citizens of Rome. All provincial courts were under the control of the central authority that supervised officials administrating one kind of law for all. The secret of success of the Roman empire lay in the magic of this Roman law under all constituent parts of the empire shared common sense of autonomy and equality. The Roman law breathed the air of cosmopolitanism throughout the empire.

In all their actions including political, it was not morality but law that was taken to be their ultimate guide. To keep politics free from morality Romans evolved the idea of the state as a legal association. State was viewed as legal person exercising authority within the limits of law.

5.4.2    Cicero and the Roman law

Among the few Roman political thinkers Cicero (106B.C. to 43 B.C.) stands as an eminent one. Cicero’s issues of politics was not only relevant to the Romans but also treated as fundamental throughout the ages. Cicero who lived amongst the turmoil of civil war sought to suggest through his writings a remedy to the problem of his time. The two most important works of Cicero are ‘De Republica’ and ‘De Legibus’. They represent an appeal for the restoration of old mixed constitution with its healthy systems of checks and balances.

Like ‘Republic’ of Plato, Cicero’s ‘De Republica’ is in the form of a dialogue. Like Plato he tried to visualize an ideal state and laid down the principles of morality.

In ‘De Republica’ he laid down that civil and constitutional law must be based on natural law and reason. He emphasized on the importance of justice in a state. He believed in the universality of law and nature and preached the Doctrine of Universal Brotherhood. He held that men were equal by nature and all men were capable of virtue. Gettel points out that Cicero’s concept of law was ‘right, reason, universal and eternal’. This law common to all men and to God is as old as time itself. Thus his state depended even more upon law than did that of Plato and Aristotle.

The greatest legacy of Cicero is his formulation of the idea of Natural Law. He agreed with Plato in believing that the principles of rights and justice were eternal. Again he agreed with the stoics that a supreme universal law existed in nature. To him morality dominates politics. Thus we can say that there was nothing original in Cicero. He reinvigorated Greek thought but laid emphasis on stoic cosmopolitanism which was in conformity with the Roman World Empire.

According to Cicero, justice is secured by law which by nature is capable of distinguishing things just from things unjust. Justice is thus dependent on law for law represents the highest reason that is universal, unchanging and everlasting. The idea of this rational and eternal law is discoverable by observation of nature which is the real fountain of reason and justice. This law of nature had been in operation much before human laws. It is alone possible for human beings to comprehend this rational law of nature for they are the only creatures endowed by nature with reason. As nature tends to secure justice through its rational and universal law similarly it is possible to have a universal law based on reason that would secure justice in society. This is what Cicero means to say whenever he defines law as right reason in agreement with nature that commands those things which ought to be done and forbids the contrary. From this idea of natural justice and natural law follows Cicero’s notion of natural equality.3

3  Mukhopadhyay Amal Kumar (2014), Western Political Thought, K.P. Bagchi & Company, p 50

As Cicero explains justice in terms of law in the same way he also looks at the state in the light of law. He traces the origin of the state to a fundamental sociability of man. Human beings have a natural instinct to live together and love others. The state was therefore not an artificial but a natural institution. According to Cicero, it is a partnership in law, a community of men united by a common law for the common well-being. Cicero emphasizes the legalistic character of the state. By doing it he distinguishes the state from society. The he argues is founded on the consent of the whole people. In other words the state represents a people brought together by a bond of law into a corporate body with supreme legal authority.