CICERO, AUGUSTINE, INSTITUTES OF JUSTINIAN
From Classics in Political Philosophy, by James Fieser
Home: https://storage.googleapis.com/jfieser/410/Index.html
2008, updated 1/1/2024, CC BY-NC-ND 4.0
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CONTENTS
Cicero: Natural Justice (from On the Commonwealth)
Augustine: The Earthly and Heavenly Cities (from City of God and Against Faustus)
Institutes of Justinian: Foundations of Roman Law
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CICERO: NATURAL JUSTICE
Cicero (106 43 BCE) was a prominent politician, lawyer and philosopher during the Roman Republic. He had a life-long interest in philosophy and wrote over a half-dozen philosophical works, mostly in dialogue form. One of his early works in political philosophy is On the Commonwealth, which puts forth the vision of an ideal community. Most of the work was considered lost until 1822 when a copy of it, though still incomplete, was discovered in the Vatican Library. Selections below are mostly from Book 3 of this work, which discusses the nature of justice. Composed in the form of a dialogue, the characters are famous generals and statesmen of the Roman Republic from a century prior to Cicero's time, namely, Scipio, Laelius, Philus, and Mummius. In an introduction to the dialogue, Cicero notes how human intelligence, language and writing have advanced human civilization, and, in politics, great politicians put into practice the theoretical principles established by philosophers. The dialogue opens with Philus attacking the notion of natural justice, particularly as expressed in the views of the ancient Greek skeptic Carneades. Philus argues that ideas of justice vary from place to place, which undermines any notion of a natural and universal justice. Further, he says, our worldly wisdom of how society operates tells us that we benefit more when we are unjust, so long as we escape punishment. For example, home sellers conceal defects in their houses from potential buyers for the benefits of financial gain. Against this view, Scipio and Laelius defend the Stoic notion of natural justice which is universal, unchangeable, eternal, created and enforced by God. Those who follow the virtuous path of natural justice are consoled by their conscience, and this outweighs any possible gains from being unjust. The dialogue closes with the participants debating the relative merits of democratic, aristocratic and monarchical governments. They all agree that democratic rule is the worst since the populace would govern with a mob-like mentality, and do whatever they pleased, regardless of how barbarous their actions were. Mummius, however, prefers aristocracies, while Scipio argues that a mixed form of government that combines elements of all three is the best. However, Scipio continues, if one had to be chosen, monarchy would be the best since the king watches over and protects citizens like a father.
INTRODUCTION (From On the Commonwealth, Book 3)
Development of Society: Natural Intelligence, Language, Writing
Nature has treated man less like a real mother than a stepmother. She has cast him into mortal life with a body that is naked, fragile, and infirm; and with a mind agitated by troubles, depressed by fears, broken by labors, and exposed to passions. In this mind, however, there lies hidden, and in a sense buried, a certain divine spark of genius and intellect. Thus, the human soul should attribute much of its present infirmity to the dullness contracted from its earthly vehicle.
Though man is born a frail and powerless being, nevertheless he is safe from all nonspeaking animals. At the same time, those other animals of greater strength, although they bravely endure the violence of weather, cannot be safe from man. The result is that reason does more for man than nature does for animals. For, in animals, neither the greatness of their strength nor the firmness of their bodies can save them from being oppressed by us, and made subject to our power.
This intelligence had taught men to utter the elementary and confused sounds of unpolished expression, to articulate and distinguish them into their proper classes, and, as their appropriate signs, attached certain words to certain things. Through the beautiful bond of speech, the once divided races of men became associated together.
Thanks to this same intelligence, the inflections of the voice, which appeared infinite, by the discovery of a few alphabetic characters, are all designated and expressed. By these we maintain conversation with our absent friends, and use them as symbols of our ideas and monuments of past events. Then came the use of numbers a thing so necessary to human life, and singularly immutable and eternal. This science first urged us to penetrate into heaven, and not in vain to investigate the motions of the stars, and the distribution of days and nights.
Philosophers (learning) vs. Politicians (experience)
Then appeared the philosophers, whose minds took a higher flight, and conceived and executed designs worthy of the gifts of the gods. Thus those who have left us sublime writings on the conduct of human life must be regarded as great men, for indeed they are so. Such were these philosophers, these masters of truth and virtue.
Among these we should especially honor the chief fathers of political wisdom, and the government of the people, as discovered by men familiar with all the acts of legislation, and as developed by philosophic truth-searchers in literary leisure. This political science often attains a wonderful perfection in first-rate minds, as we have frequently seen, and elicits an incredible and almost divine virtue. No one will refuse to acknowledge the superiority of political thinkers over all others, particularly when, to these high faculties of soul (received from nature and expanded by social institutions), a politician adds learning and extensive information concerning things in general. Cases in point are those famous people who conduct the dialogue in the present treatise.
In fact, what can be more admirable than the study and practice of the grand affairs of state, united to a literary elegance and a familiarity with the liberal arts! What can we imagine more perfect than a Scipio, a Laelius, or a Philus, who, combining all the glorious qualities of the greatest men, joined to the examples of our ancestors and the traditions of our countrymen, the foreign philosophy of Socrates!
It appears to me the very highest glory and honor is to study and attain two grand things: learning and experience. With these we may build securely on the universal consent of the philosophers of all nations, and the tried institutions of our native land. But suppose that we cannot combine both, and are compelled to select one of these two paths of wisdom. We may think that the tranquil life spent in the research of literature and arts is the most happy and appealing. However, undoubtedly the science of politics is more praiseworthy and memorable, for in this political field of exertion our greatest men have reaped their honors, like the incorruptible [Roman politician] Curius "Whom neither gold nor iron could tempt."
In honor of our country of Rome, we may assert that she has produced within herself a great number of men (I will not call them "philosophers" since philosophy is so protective of that name) but of men worthy of the highest honor, because by them the precepts and discoveries of the philosophers have been carried out into actual practice.
The number of these political legislators will appear very numerous if you consider that there have existed and still exist many great and glorious empires, and if you acknowledge that the noblest masterpiece of genius in the world is the establishment of a durable state and commonwealth. To be convinced of this, we have only to turn our eyes on Italy, Latium, the Sabines, the Volscians, the Samnites, the Etrurians, and then direct our attention to the Greeks, Assyrians, Persians, and Carthaginians.
PHILUS: AGAINST NATURAL, INNATE AND UNIVERSAL JUSTICE
Carneades' View that Justice is not Eternal, Unchanging, or Universal
Narrator: Scipio and his friends having again assembled, Scipio began speaking.
Scipio: In our last conversation I promised to prove that honesty is the best policy in all states and commonwealths whatsoever. But if I am to plead in favor of strict honesty and justice in all public affairs, no less than in private, I must request that Philus, or someone else, take up the advocacy of the other side. The truth will then become more obvious from the confrontation of opposite arguments, as we see every day exemplified in court proceedings.
Philus: In all truth you have assigned me an excellent and admirable cause. So you wish me to argue for vice, do you?
Laelius: Perhaps you are afraid, for fear that in reproducing the ordinary objections made to justice in politics, you should appear to express your own opinions. But this caution is ridiculous in you, Philus. You, who are so universally respected as an almost unique example of the ancient virtue and good faith. You, who are so familiar with the legal habit of disputing on both sides of a question, because you think this is the best way of getting at the truth.
Philus: Very well, I will do as you say. Willfully with my eyes open, I will undertake this dirty business. Since those who seek for gold do not flinch at the sight of mud, we, who search for justice, which is far more precious than gold, must overcome all dainty scruples. I will therefore, make use of the antagonist arguments of a foreigner, and assume his character in using them. The arguments, therefore, that I will now deliver are those once used by the Greek [skeptical philosopher] Carneades, who commonly express whatever served his purpose. Let it be understood, though, that I by no means express my own opinions, but those of Carneades, in order that you may refute this philosopher, who often turnEd the best causes into joke, through the mere shamefulness of wit.
Narrator: When Philus had thus spoken, he took a general review of the leading arguments that Carneades had offered to prove that justice was neither eternal, immutable, nor universal. Having put these sophistical arguments into their most misleading yet plausible form, he thus continued his clever pleadings.
Justice Varies from Place to Place
Philus: Aristotle has treated this question concerning justice, and filled four large volumes with it. As to the stoic philosopher Chrysippus, I expected nothing grand or magnificent in him, for, after his usual fashion, he examines everything by the meaning of words, rather than the reality of things. But it was surely worthy of those heroes of philosophy to ennoble by their genius a virtue so highly beneficent and liberal, which everywhere exalts the social interests above the selfish, and teaches to love others rather than ourselves. It was worthy of their genius, we say, to elevate this virtue to a divine throne, close to that of Wisdom. Certainly they did not lack the intention to accomplish this. What else could be the cause of their writing on the subject, or what could have been their design? Nor could they have lacked intelligence, in which they excelled all men. But the weakness of their cause was too great for their intention and their eloquence to make it popular. In fact, this justice on which we reason may be a legal right, but no natural one. For if it were natural and universal, then justice and injustice would be recognized similarly by all men, just as the elements of heat and cold, sweet and bitter.
Now if anyone was carried in the chariot of winged serpents (of which the poet Pacuvius makes mention), and could fly over all nations and cities, and accurately observe their activities, he would see that the sense of justice and right varies in different regions. In the first place, he would observe among the unchangeable people of Egypt, which preserves in its archives the memory of so many ages and events, a bull adored as a deity, under the name of Apis, a multitude of other monsters, and all kinds of animals admitted by the natives into the number of the gods.
The Persians, on the other hand, regard all these forms of idolatry as wicked, and it is affirmed that the sole motive of Xerxes for commanding the conflagration of the Athenian temples, was the belief that it was a superstitious sacrilege to keep confined within narrow walls the gods, whose proper home was the entire universe. Afterwards Philip in his hostile projects against the Persians, and Alexander in his expedition, argued that war was necessary to avenge the temples of Greece [which the Persians destroyed]. The Greeks thought it proper to never rebuild these temples, so that this monument of the impiety of the Persians might always remain before the eyes of their posterity.
How many, such as the inhabitants of Taurica along the Euxine Sea (as the King of Egypt Busiris as the Gauls and the Carthaginians) have thought it exceedingly devout and agreeable to the gods to sacrifice men. Besides these religious discrepancies, the rules of life are so contradictory that the Cretans and tolians regard robbery as honorable. The Lacedaemonians say that their territory extends to all places which they can touch with a lance. The Athenians had a custom of swearing by a public proclamation, that all the lands which produced olives and corn were their own. The Gauls consider it a fundamental occupation to raise corn by agricultural labor, and go with arms in their hands, and mow down the harvests of neighboring peoples. Our Romans, the most evenhanded of all nations, in order to raise the value of our vines and olives, do not permit the races beyond the Alps to cultivate either vineyards or olive yards. In this respect, it is said, we act with forethought, but not with justice. You see then that wisdom and policy are not always the same as equity. Lycurgus, the inventor of a most admirable jurisprudence, and most wholesome laws, gave the lands of the rich to be cultivated by the common people, who were reduced to slavery.
If I were to describe the diverse kinds of laws, institutions, manners, and customs, not only as they vary in the numerous nations, but as they vary likewise in single cities, as Rome for example, I should prove that they have had a thousand revolutions. Take, for instance, Malilius, that famous expositor of our laws who sits in the present company. If you were to consult him regarding the inheritances of women, he would tell you that the present law is quite different from that which he was accustomed to follow in his youth (that is, before the Voconian enactment came into force, an edict which was passed in favor of the interests of the men, but which is evidently full of injustice with regard to women.) For why should a woman be disabled from inheriting property? Why can a vestal virgin [i.e., priestess of the goddess Vesta] become an heir, while her mother cannot? And why, admitting that it is necessary to set some limit to the wealth of women, should the daughter of [the wealthy Roman general] Crassus, if she is his only child, inherit thousands without offending the law, while my daughter can only receive a small share in an inheritance?
If this justice were natural, innate, and universal, all men would recognize the same law and right, and the same men would not enact different laws at different times. If a just man and a virtuous man is bound to obey the laws, I ask what laws do you mean? Do you have in mind all the laws indifferently? Virtue does not permit this inconsistency in moral obligation. Such a variation is not compatible with natural conscience. Therefore, the laws are not based on our sense of justice, but on our fear of punishment. There is, accordingly, no natural justice, and hence it follows that men cannot be just by nature.
Suppose that you grant that variation indeed exists among the laws, but that men who are virtuous through natural conscience follow that which is really justice, and not a mere appearance and disguise. You suppose that it is the distinguishing characteristic of the truly just and virtuous man to give everyone his due rights. I should, then, ask you this question, what then should we do to animals, and what are the rights of animals? For not only men of more moderate abilities, but even first-rate sages and philosophers, as Pythagoras and Empedocles, declare that all kinds of living creatures have a right to the same justice. They declare that rigid penalties happen to those who have done violence to any animal whatsoever. It is, therefore, a crime to injure an animal, and the perpetrator of such crime must bear his punishment.
Natural Justice is Inconsistent with Worldly Wisdom
When Alexander asked a pirate by what right he dared to infest the sea with his little ship, he replied, "By the same right which is your justification for conquering the world." This pirate was indeed something of a philosopher in his way, for worldly wisdom and practicality instructs us to increase our power, riches, and estates in any way we can. This same Alexander, this mighty general, who extended his empire over all Asia, how could he, without violating the property of other men, acquire such universal dominion, enjoy so many pleasures, and reign without bound or limit?
Justice, as you assert, commands us to have mercy upon all; to exercise universal philanthropy; to consult the interests of the whole human race; to give everyone his due, and to injure no sacred, public, or foreign rights. But if this is so, how can we reconcile this vast and all-embracing justice with worldly wisdom and policy, which teach us how to gain wealth, power, riches, honors, provinces, and kingdoms from all classes, peoples, and nations?
However, as we are discussing the interests of the state, let us notice a few memorable examples of justice and policy, presented by the history of our own Commonwealth. Since the question between justice and policy applies equally to private and public affairs, I will speak of the policy of the more public kind. I will not, however, mention other nations, but come immediately to our own Roman people, whom Scipio in his discourse yesterday traced from the cradle, and whose empire now embraces the whole world. Concerning these Romans, I frankly ask whether it was most by justice or practical policy that they have attained such unbounded domination?
Now we think that policy will be found to have been our leading principle, though our political characters have always tried to dignify it by the name of justice. Thus all those who have usurped the right of life and death over the people are in fact tyrants; but they prefer being called by the title of king, which best belongs to Jupiter the Beneficent. When certain men, by favor of wealth, birth, or any other means, get possession of the entire government, it is a faction; but they choose to call themselves an aristocracy. If the people get the upper-hand, and rule everything after its capricious will, they call it liberty, but it is in fact excessive freedom. When every man is on guard his against neighbor, and every class is on guard against every other class, then because each demands the aid of the rest, a kind of contract is formed between the great folk and the little folk. From this arises that mixed kind of government which Scipio has been commending. Thus justice, according to these facts, is not the daughter of nature or conscience, but of human weakness. Consider these three scenarios: either to do wrong without punishment, or to do wrong with punishment, or to do no wrong at all. If we must choose between them, it is best to do wrong with no consideration of punishment. Next we should neither do wrong, nor suffer for it. But nothing is worse than to struggle incessantly between the wrong we inflict and that we receive.
If we were to examine the conduct of states by the test of justice, as you propose, we should probably make this astounding discovery, that very few nations, if they restored what they have seized, would possess any country at all. The exceptions, perhaps, would be the Arcadians and Athenians, who, I presume, dreading that this great act of punishment might one day arrive, pretend that they sprung from the earth like so many of our field mice.
Benefits of Injustice Outweigh the Disbenefits of Remorse
In reply to these statements, the following arguments are often offered by those who are skilful in discussions, and who, in this question, have all the greater weight of authority. For, when we inquire, "Who is a good man?" (understanding by that term a frank and single-minded man), we have little need of picky arguers, quibblers, and slanderers. For those men assert that the wise man does not seek virtue because of the personal gratification, which the practice of justice and beneficence gives him, but rather because the life of the good man is free from fear, care, worry, and peril. On the other hand, however, the wicked always feel in their souls a certain suspicion, and always see before their eyes images of judgment and punishment. Do you not think, therefore, that there is any benefit, or that there is any advantage which can be obtained by injustice that is precious enough to counterbalance the constant pressure of remorse, and the haunting consciousness that punishment awaits the wrongdoer, and hangs over his head?
Our philosophers, therefore, put forward a case which is worth reporting. Suppose, they say, there are two men. The first is an excellent and admirable person, of high honor and remarkable integrity; the latter is distinguished by nothing but his vice and disrespect. Suppose that their city has so mistaken their characters, as to imagine the good man a scandalous and wicked imposter, and to consider the wicked man, on the contrary, as a pattern of goodness and trustworthiness. On account of this error of their fellow-citizens, the good man is arrested and tormented, his hands are cut off, his eyes are plucked out, he is condemned, bound, burnt, and exterminated, and to the last appears, in the best judgment of the people, the most miserable of men. On the other hand, the reprehensible wretch is exalted, worshipped, loved by all, and honors, offices, riches, and payments, are all conferred on him, and he will be thought by his fellow-citizens the best and worthiest of mortals, and in the highest degree worthy of all manner of prosperity. Yet for all this, who is so mad, as to doubt which of these two men he would rather be [i.e., the unjust one]?
Benefits of Injustice Confirmed by Human Practice
Philus: I allow that you have quoted a strong case in your favor, but still I assert that policy receives greater confirmation by the actual conduct and practice of men than your justice can boast of. This is so both among individuals and among nations. What state is so absurd and ridiculous, as not to prefer unjust dominion to just subordination? I need not go far for examples. During my own consulship, when you were my fellow-counselors, we consulted respecting the treaty of Numantia. No one was ignorant that Pompey had signed this treaty, and that Mancinus had done the same. Mancinus, a virtuous man, supported the proposition which I laid before the people, after the decree of the senate. Pompey, on the other side, opposed it vehemently. If modesty, integrity, or faith had been regarded, Mancinus would have carried his point; but in reason, counsel and practicality, Pompey surpassed him.
If a gentleman should have a faithless slave, or a disease-filled house, with whose defect he alone was acquainted, and he advertised them for sale, would he state the fact that his servant was infected with dishonesty, and his house with malaria, or would he conceal these objections from the buyer? If he stated those facts, he would be honest, no doubt, because he would deceive nobody. But still he would be thought a fool, because he would get either little or nothing for his property. By concealing these defects, on the other hand, he will be called a shrewd and discreet man. But he will be dishonest notwithstanding, because he deceives his neighbors. Again, let us suppose that a man meets someone who sells gold and silver, but mistakenly thinks them to be copper or lead. Should the buyer keep quiet so that he may make a major profit, or correct the mistake and purchase it at a fair rate? He would clearly be a fool in the world's opinion if he preferred the latter.
Without a doubt, it is justice to neither commit murder nor robbery. What then would your just man do, if in a case of shipwreck he saw a weaker man than himself get possession of a plank? Would he push him off, get hold of the timber himself, and escape by his exertions, especially as no human witness could be present in the mid-sea. If he acted like a wise man of the world, he would certainly do so; for to act in any other way would cost him his life. If on the other hand he prefers death to inflicting unjustifiable injury on his neighbor, he will be an eminently honorable and just man, but not the less a fool, because he saved another's life at the expense of his own. Again, if in case of a defeat and disorderly flight, when the enemy were pressing in the rear, this just man should find a wounded comrade mounted on a horse, should he respect his right, at the chance of being killed himself, or should be fling him from the horse in order to preserve his own life from the pursuers? If he does so, he is a worldly wise man, but not the less dishonorable. If he does not, he is admirably just, but very stupid.
LAELIUS AND SCIPIO: FOR NATURAL JUSTICE
Scipio: I might reply at great length to these sophistical objections of Philus, if it were not, my friend Laelius, that all our friends are no less anxious than myself to hear you take a leading part in this debate. You promised yesterday that you would plead at large on my side of the argument. If you cannot spare time for this, at any rate do not desert us, we all ask this of you.
Natural Justice and Virtue
Laelius: This Carneades ought not to be even listened to by our young men. I think all the while I hear him, that he must be a very immoral person. If he is not, as I would prefer to believe, his teachings are no less dangerous.
There is a true law, a right reason, conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty, and whose prohibitions restrain us from evil. Whether it requires or forbids, good people respect its commands, and the wicked treat them with indifference. This law cannot be contradicted by any other law, and cannot be detracted from or abolished. Neither the senate nor the people can give us any exemption for not obeying this universal law of justice. It needs no other expositor and interpreter than our own conscience. It is not one thing at Rome and another at Athens; one thing today and another tomorrow; but in all times and nations this universal law must forever reign, eternal and imperishable. It is the sovereign master and emperor of all beings. God himself is its author, its proclaimer, its enforcer. He who does not obey it flies from himself, and does violence to the very nature of man. For his crime he must endure the severest penalties hereafter, even if he avoids the usual misfortunes of the present life.
The virtue which obeys this law [of justice], nobly aspires to glory, which is virtue's sure and appropriate reward. It is a prize she can accept without disrespect, or give up without regret. When a man is inspired by virtue such as this, what bribes can you offer him? What treasures, what thrones, what empires? He considers these but mortal goods, and considers his own, divine. If the ingratitude of the people, and the envy of his competitors, or the violence of powerful enemies, rob his virtue of its earthly reward, he still enjoys a thousand consolations through the approval of his conscience, and sustains himself by contemplating the beauty of moral rightness.
This virtue, in order to be true, must be universal. [Roman politician] Tiberius Gracchus was faithful to his fellow-citizens, but he violated the rights and treaties guaranteed to our allies and the Latin nations. This habit of arbitrary violence may extend and unify our authority, not with equity, but force, so that those who had voluntarily obeyed us, are only restrained by fear. If this is so, then, although we may escape peril right now, yet I am worried about the safety of our future, and the immortality of the Commonwealth itself. Certainly, it might become unending and unconquerable, if our people would maintain their ancient institutions and manners.
Justice the Foundation of Lawful Government
Narrator: When Laelius had stopped speaking, all those that were present expressed the extreme pleasure they found in his discourse. But Scipio, more affected than the rest, and ravished with the delight of sympathy, exclaimed.
Scipio: You have pleaded, Laelius, many causes with an eloquence superior to that of Servius Galba, our colleague, whom during his life, you used to prefer to all others, even to the Attic orators. Never did I hear you speak with more energy than today, while pleading the cause of justice.
This justice is the very foundation of lawful government in political constitutions. Can we call the province of Agrigento a Commonwealth, where all men are oppressed by the cruelty of a single tyrant, and where there is no universal bond of right, nor social consent and fellowship, which should belong to every people, properly so named? It is the same in Syracuse, that famous city which Timaeus calls the greatest of the Grecian towns. It was indeed a most beautiful city. Its admirable citadel, its canals distributed through all its districts, its broad streets, its porticoes, its temples, and its walls, gave Syracuse the appearance of a most flourishing state. But while Dionysus its tyrant reigned there, nothing of all its wealth belonged to the people, and the people were nothing better than the slaves of a wicked despot. Thus wherever I see a tyrant, I know that the social constitution must be, not merely immoral and corrupt, as I stated yesterday, but in strict truth, no social constitution at all.
Laelius: You have spoken admirably, Scipio, and I see the point of your observations.
Scipio: You grant, then, that a state which is entirely in the power of a faction, cannot justly be called a political community.
Laelius: That is evident to us all.
Scipio: You judge most correctly. For what was the state of Athens when, during the great Peloponnesian war, she fell under the unjust domination of the thirty tyrants? Consider the antique glory of that city, the imposing aspect of its edifices, its theatre, its gymnasium, its porticos, its temples, its citadel, the admirable sculptures of Phidias, and the magnificent harbor of Piraeus. Did they constitute it a commonwealth?
Laelius: Certainly not, because these did not constitute the real welfare of the community.
Scipio: And at Rome, when the Ten Men ruled without appeal from their decisions in the third year of their power, had not liberty lost all its securities and all its blessings?
Laelius: Yes, the welfare of the community was no longer consulted, and the people soon roused themselves, and recovered their appropriate rights.
DEMOCRACY, ARISTOCRACY AND MONARCHY
Against Democracies
Scipio: I now come to the democratic form of government. This presents a considerable difficulty because all things are there said to lie at the tendency of the people, and are carried into execution just as they please. Here the populace inflict punishments at their pleasure, and act, and seize, and keep possession, and distribute property, without restraint or hindrance. Can you deny, Laelius, that this is a fair definition of a democracy, where the people are all in all, and where the people constitute the state?
Laelius: There is no political constitution to which I more absolutely deny the name of a Commonwealth, than that in which all things lie in the power of the multitude. A Commonwealth implies the welfare of the entire community. It could not exist in Agrigento, Syracuse, or Athens, when tyrants reigned over them; it could not exist in Rome, when under the oligarchy of the Ten Men. If it could not in these cases, neither do I see how this sacred name of Commonwealth can be applied to a democracy, and the sway of the mob.
In this statement, Scipio, I build on your own admirable definition, that there can be no community, properly so called, unless it be regulated by a combination of rights. By this definition it appears that a multitude of men may be just as tyrannical as a single despot. Indeed this is the most horrible of all tyrannies, since no monster can be more barbarous than the mob, which assumes the name and mask of the people. The laws place the property of madmen in the hands of their sane relations; it is thus unreasonable that we should do the very reverse in politics, and throw the property of the sane into the hands of the mad multitude.
It is far more rational to assert that a wise and virtuous aristocratic government deserves the title of a Commonwealth, as it approaches to the nature of a kingdom.
Aristocracy vs. Monarchy
Mummius: In my opinion, an aristocratic government, properly so called, is entitled to our just approval. The unity of power often exposes a king to become a despot. But when an aristocracy, consisting of many virtuous men, exercise power, it is a most fortunate circumstance for any state. However this may be, I much prefer royalty to democracy; and I think, my Scipio, you have something more to add with respect to this most cruel of all political governments.
Scipio: I am well acquainted, Mummius, with your strong opposition to the democratic system. Although we may speak of it with rather more indulgence than you are accustomed to accord it, I must certainly agree with you, that of all the three particular forms of government, none is less admirable than democracy.
I do not agree with you, however, when you would imply that aristocracy is preferable to royalty. If you suppose that wisdom governs the state, is it not as well that this wisdom should reside in one monarch, as in many nobles?
But a sophistry of words and terms is likely to abuse our understanding in a discussion like this. When we pronounce the word "aristocracy," which, in Greek, signifies the government of the best men, imagination, leaning rather to etymology than fact, we can hardly conceive anything more excellent. For what can be thought better than the best? When, on the other hand, the title, king, is mentioned, owing to the hallucination of our imagination, we Romans begin to imagine a tyrant, as if a king must be necessarily unjust. For my part, I always think of a just king, and not a shameless despot, when I examine the true nature of royal authority. To this name of "king", I associate the idea of a Romulus, a Numa, a Tullus, and perhaps you will be less severe to the monarchical form of constitution.
Mummius: Have you then no praise at all for any kind of democratic government?
Scipio: Why, I think some democratic forms are less objectionable than others. By way of illustration, I will ask you what you thought of the government in the Isle of Rhodes, where we were lately together. Did it appear to you a legitimate and rational constitution?
Mummius: It did, and not much liable to abuse.
Scipio: You say truly. But if you recollect, it was a very extraordinary experiment. All the inhabitants were alternately senators and citizens. Some months they spent in their senatorial functions, and some months they spent in their civil employments. In both they exercised judicial powers; and in the theatre and the court, the same men judged all causes, capital and not capital. So much for democracies.
Mixed form of Government the Best (Book 1.35)
Laelius: But you have not told us, Scipio, which of these three forms of government you yourself most approve.
Scipio: You are right to form your question, which of the three I most approve, for there is not one of them which I approve at all by itself, since, as I told you, I prefer that government which is mixed and composed of all these forms, to any one of them taken separately. But if I must confine myself to one of these particular forms simply and exclusively, I must confess I prefer the royal one, and praise that as the first and best. In this, which I here choose to call the primitive form of government, I find the title of father attached to that of king, to express that he watches over the citizens as over his children, and endeavors rather to preserve them in freedom than reduce them to slavery. Thus, it is more advantageous for those who are insignificant in property and capacity to be supported by the care of one excellent and eminently powerful man. The nobles here present themselves, who profess that they can do all this in much better style; for they say that there is much more wisdom in many than in one, and at least as much faith and equity. Last of all, come the people, who cry with a loud voice that they will render obedience neither to the one nor the few; that even to brute beasts nothing is so dear as liberty; and that all men who serve either kings or nobles are deprived of it. Thus, the kings attract us by affection, the nobles by talent, the people by liberty; and in the comparison it is hard to choose the best.
Source: Cicero, On the Commonwealth, Book 3, tr. C.D. Yonge,
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AUGUSTINE: THE EARTHLY AND HEAVENLY CITIES
Augustine (354 430) was Bishop of the North African city of Hippo, and is among the most influential early Christian theologians and philosophers. He lived at a time when the Roman Empire was being invaded by barbarian tribes, and this experience helped shape his political philosophy, which he developed in his book The City of God. In the selections below from this, Augustine contrasts the value system of what he calls the "two cities". The earthly city is driven by only human interests and love of self, and it strives after only earthly peace. The heavenly city, by contrast, consists of those who love God and strive after eternal peace. Believers in God are members of the heavenly city, but, while detained here on earth, they are like travelers, or resident aliens, who temporarily live within the earthly city. The peace of both cities, Augustine argues, is grounded in God's eternal law, the chief principles of which are loving God and loving one's neighbor. Eternal law also mandates civil harmony through harming no one and doing good to others; it mandates domestic harmony by having husbands rule their wives, parents their children, and masters their servants. The heavenly city travelers live in harmony within the earthly city, and benefit from the bodily security that it offers. In international matters, Augustine believes that people would be happier if all kingdoms were small and lived in neighborly harmony. Empires like that of the Romans, though, expanded their territory through brutal wars and try to unify conquered nations by imposing a single language on them. But ultimately, these wars of unity require great bloodshed and bring on long term misery of social and civil unrest. Another work by Augustine, titled Contra Faustum, defends God's role in wars, particularly those waged by Moses in the Old Testament, which critics have depicted as brutal and unjust. According to Augustine, God commands wars with an aim towards just retribution, not cruelty, and wars are justified when done in obedience to God. However, he says, God has his own conceptions of justice that are unknowable to us, and he judges us from a timeless perspective. Thus, wars ordained by God are aimed at punishing injustice, even if we cannot understand exactly why the enemies are unjust and deserve punishment.
THE TWO CITIES (from City of God)
Differences between the Two Cities (CG 14.1)
We have already stated in the preceding books that God desired that the human race might be able by their similarity of nature to associate with each other. He also desired that they might be bound together in harmony and peace by the ties of relationship. Accordingly, he happily created all people from one individual, and gave humans such a nature that the members of the race should not have died, had not the two first (of whom the one was created out of nothing, and the other out of him) deserved this by their disobedience. For they committed such a great sin that human nature was altered by it for the worse, and this was passed on to their offspring, namely, the capacity to sin and to die. The kingdom of death reigned so much over people that the deserved penalty of sin would have hurled all headlong even into a second and eternal death, if it had not been for the undeserved grace of God which saved some people from it. It has come about that there are very many and great nations all over the earth, whose rituals, customs, speech, and dress, are distinguished by clear differences. Nevertheless, there are no more than two kinds of human societies, which we may justly call two cities, according to the language of our Scriptures. The one consists of those who wish to live after the body, the other of those who wish to live after the spirit. When they respectively achieve what they wish, they live in peace, each after their kind.
Two Cities formed by Two Loves (CG 14.28)
Accordingly, two cities have been formed by two loves: the earthly by the love of self (even to the point of contempt for God); the heavenly by the love of God (even to the point of contempt for self). The former, in a word, praises itself, the latter the Lord. The one seeks praise from men, but the other seeks the greatest praise which is from God, the witness of conscience. The one lifts up its head in its own glory; the other says to God, "You are my glory, and the lifter up of my head." In the one, the princes and the nations it subdues are ruled by the love of ruling; in the other, the princes and the subjects serve each other in love, the latter obeying, while the former show consideration for all. The one delights in its own strength, represented in the persons of its rulers; the other says to its God, "I will love You, Lord, my strength." Therefore the wise men of the one city, living according to man, have sought for profit to their own bodies or souls, or both. Those of them who had once known God "did not glorify him as God; they were unthankful, became proud in their thoughts, and their foolish hearts were darkened as they professed themselves to be wise." That is, praising their own wisdom, and being possessed with pride "they became fools, and exchanged the praise of the immortal God for images made like mortal man, birds, animals, and reptiles." For they were either leaders or followers of the people in worshiping images, "and worshipped and served the creature more than the Creator, who is blessed forever" (Romans 1:21-25). But in the other city there is no human wisdom, but only godliness, which offers proper worship of the true God, and looks for its reward in the society of the saints, of holy angels as well as holy men, "that God may be all in all."
Peace through the Eternal Law (CG 19.14)
The whole use of temporal things has a reference to the result of earthly peace in the earthly community. In the city of God, though, it is connected with eternal peace. . . . So long as man is in this mortal body, he is a stranger to God, he walks by faith, not by sight. He therefore refers all peace, bodily or spiritual or both, to that peace which mortal man has with the immortal God, so that he exhibits the well-ordered obedience of faith to eternal law. This divine Master instills in us two precepts: the love of God and the love of our neighbor. In these precepts a man finds three things he has to love: God, himself, and his neighbor. Thus, he who loves God loves himself. Consequently, he must try to get his neighbor to love God, since he is ordered to love his neighbor as himself. He ought to make this effort on behalf of his wife, his children, his household, all within his reach, even as he would wish his neighbor to do the same for him if he needed it. Consequently, he will be at peace, or in well-ordered harmony, with all men, as far as he can. This is the order of this harmony: first, that a man injure no one, and, second, to do good to everyone he can reach. Primarily, therefore, his own household is his care, since the law of nature and of society gives him immediate access to them and greater opportunity of serving them. Hence the apostle says, "If anyone does not provide for his relatives, and especially for his immediate family, he has denied the faith and is worse than an unbeliever" (1 Timothy 5:8). This is the origin of domestic peace, or the well-ordered harmony of those in the family who rule and those who obey. For they who care for the rest rule. The husband rules the wife, the parents the children, the masters the servants. Those who are cared for obey: women their husbands, children their parents, servants their masters. But in the family of the just man who lives by faith and is like a traveler journeying on to the heavenly city, even those who rule serve those whom they seem to command. For they do not rule from a love of power, but from a sense of the duty they owe to others. It is not because they are proud of authority, but because they love mercy.
Servitude Introduced by Sin (CG 19.15)
This is prescribed by the order of nature: it is thus that God has created man. For "let them," he says, "have dominion over the fish of the sea, and over the fowl of the air, and over every creeping thing which creeps on the earth" (Genesis 1.26). He did not intend that his rational creature, who was made in his image, should have dominion over anything but the irrational creation not man over man, but man over the animals. Hence the righteous men in ancient times were made shepherds of cattle rather than kings of men, God intending thus to teach us what the relative position of the creatures is, and what the desert of sin; for it is with justice, we believe, that the condition of slavery is the result of sin. This is why we do not find the word "slave" in any part of Scripture until righteous Noah branded the sin of his son with this name. It is a name, therefore, introduced by sin and not by nature. . . .
Domestic Peace secured through Punishment (CG 19.16)
Although our righteous fathers had slaves, and administered their domestic affairs so as to distinguish between the condition of slaves and the heirship of sons in regard to the blessings of this life, yet in regard to the worship of God, in whom we hope for eternal blessings, they took an equally loving oversight of all the members of their household. This is so much in accordance with the natural order, that the head of the household was called paterfamilias. . . . If any member of the family interrupts domestic peace by disobedience, he is corrected either with words or by striking, or some kind of just and legitimate punishment which society permits. By doing so he may himself be the better for it, and be readjusted to the family harmony from which he had dislocated himself. Just as it is not benevolent to give a man help at the expense of some greater benefit he might receive, so too it is not right to spare a man at the risk of his falling into graver sin. To be morally innocent, we must not only do harm to no man, but also restrain him from sin or punish his sin. By doing so, either the man himself who is punished may profit by his experience, or others may be deterred by his example. The house ought to be the beginning or component of the city. Now, every beginning bears reference to some end of its own kind, and every component to the integrity of the whole of which it is a component. It plainly follows that domestic peace has a relation to civic peace. In other words, the well-ordered harmony of domestic obedience and domestic rule has a relation to the well-ordered harmony of civic obedience and civic rule. Therefore, the father of the family ought to frame his domestic rule in accordance with the law of the city, so that the household may be in harmony with the civic order.
Peace and Discord between the Two Cities (CG 19.17)
But the families which do not live by faith seek their peace in the earthly advantages of this life. By contrast, the families that live by faith look for those eternal blessings which are promised. As travelers, they do not use those advantages of time and place that preoccupy them or divert them from God. Rather, they use those that aid them to endure with greater ease, and to keep down the number of those burdens of the mortal body that weigh upon the soul. Thus the things necessary for this mortal life are used by both kinds of men and families alike, but each has its own peculiar and widely different aim in using them. The earthly city, which does not live by faith, seeks an earthly peace. The end it proposes, in the well-ordered harmony of civic obedience and rule, is the combination of men's wills to attain the things which are helpful to this life. The heavenly city, or rather the part of it which travels on earth and lives by faith, makes use of this peace only because it must, until this mortal condition which necessitates it will pass away. Consequently, so long as it lives like a captive and a stranger in the earthly city, (though it has already received the promise of redemption, and the gift of the Spirit as the earnest of it) it makes no scruple to obey the laws of the earthly city, whereby the things necessary for the maintenance of this mortal life are administered. Thus, as this life is common to both cities, so there is a harmony between them in regard to what belongs to it.
But, the earthly city has had some [polytheistic] philosophers whose doctrine is condemned by divine teaching. They are deceived either by their own conjectures or by demons. . . . The heavenly city, on the other hand, knew that one God only was to be worshipped, and that to him alone was due that service which the Greeks call adoration (latreia λατρεία), and which can be given only to a god. Consequently, the two cities could not have common laws of religion. The heavenly city has been compelled to dissent in this matter, and to become hated by those who think differently, and to stand the brunt of their anger and hatred and persecutions. The minds of some of their enemies, though, have been alarmed by the multitude of the Christians, and suppressed by the evident protection of God given to them. This heavenly city, then, while it travels on earth, calls citizens out of all nations, and gathers together a society of travelers of all languages. They do not scruple about differences in the customs, laws, and institutions whereby earthly peace is secured and maintained. Rather, they recognize that, however different these are, they all tend to one and the same end of earthly peace. It therefore is so far from revoking and abolishing these diversities, that it even preserves and adopts them, so long only as no hindrance to the worship of the one supreme and true God is thus introduced.
Even the heavenly city, therefore, while in its state of travel, takes advantage of the peace of earth. So far as it can without injuring faith and godliness, it desires and maintains a common agreement among men regarding the acquisition of the necessities of life, and makes this earthly peace bear upon the peace of heaven. For this alone can be truly called and properly judged to be the peace of the reasonable creatures, consisting as it does in the perfectly ordered and harmonious enjoyment of God and of each other in God. When we will have reached that peace, this mortal life will give place to one that is eternal, and our body will be no more this animal body which by its corruption weighs down the soul. Instead, it will be a spiritual body feeling no wants, and in all its members subjected to the will. In its travelling state, the heavenly city possesses this peace by faith. By this faith it lives righteously when it looks towards the attainment of that peace for every good action towards God and man. For the life of the city is a social life.
AGAINST EXTENDING ONE'S EMPIRE
The Liabilities of Acquiring too Much (CG 4.3)
. . . I should like to briefly inquire what reason and good judgment there is in wishing to glory in the greatness and extent of the empire. You cannot point out the happiness of men who are always rolling, with dark fear and cruel lust, in warlike slaughters and in blood. Whether shed in civil or foreign war, it is still human blood. Thus, their joy may be compared to glass in its fragile splendor, of which one is horribly afraid that it should be suddenly broken in pieces. That this may be more easily understood, let us not be uselessly carried away with empty boasting, or blunt the edge of our attention by loud-sounding names of things, when we hear of nations, kingdoms, provinces. But let us suppose a case of two men. Each individual man, like one letter in a language, is as it were the element of a city or kingdom, however far-spreading in its occupation of the earth. Of these two men let us suppose that one is poor, or rather of moderate wealth; the other very rich. But the rich man is anxious with fears, longing with discontent, burning with desire, never secure, always uneasy, breathless from perpetual strife with his enemies. To a great degree, these miseries supplement his wealth and pile up the bitterest worries. But the other man of moderate wealth is content with a small and contained estate, that is most dear to his own family, enjoying the sweetest peace with his relatives, neighbors and friends, religiously upright, gentle in mind, healthy in body, frugal in life, simple in manners, and sincere in conscience. I do not know anyone who could be such a fool, that he'd dare hesitate which to prefer. As, therefore, in the case of these two men, so in two families, in two nations, in two kingdoms, this test of tranquility holds good. . . . To the just, all the evils imposed on them by unjust rulers are not the punishment of crime, but the test of virtue. Therefore the good man, although he is a slave, is free. But the bad man, even if he reigns, is a slave, and that not of one man, but, what is far more grievous, of as many masters as he has vices. Of these vices the divine Scripture says, "a man is a slave to whatever has mastered him" (2 Peter 2:19).
Kingdoms without Justice are like Robberies (CG 4.4)
When justice is removed, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The group itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the agreed upon law. If, by involving unjust men, this evil increases to such a degree that it captures places, claim dwellings, takes possession of cities, and subdues nations, it assumes the more plainly the name of a kingdom. For, the reality is now clearly present with it, not by the removal of greed, but by being exempt from punishment. Indeed, that was an appropriate and true reply which was given to Alexander the Great by a pirate who had been captured. For when Alexander had asked the man why he took hostile possession of the sea, he answered with bold pride, "Why do you seizing the whole earth? Because I do it with a petty ship, I am called a robber, while because you do it with a great fleet are called emperor."
Good People should not Wish to Rule more Widely (CG 4.15)
Let us ask whether it is appropriate for good men to admire empires that are vastly extended. For, the growth of a kingdom is justified by just wars against evil aggressors. Such expansion would certainly have been small if the peace and justice of neighbors had not been upset by some injustice that provoked a war against them. Human affairs would be more happy if all kingdoms would have been small, enjoying in neighborly harmony. There then would have been very many kingdoms of nations in the world, just as there are very many houses of citizens in a city. Thus, to carry on war and extend a kingdom over entirely subdued nations seems to give enjoyment to bad men, while to good men it is only a necessity [for protection]. But because it would be worse for harmful people to rule over those who are more righteous, even that is not unsuitably called enjoyment. But without doubt there is greater enjoyment to be at peace with a good neighbor, than to conquer a bad one by making war. Your intentions are bad when you desire that someone you hate or fear should be in a situation where you can conquer him. Suppose that the Romans acquired their great empire only by carrying on wars that were just, and not wicked or unrighteous. Should they not, then, worship as a goddess [i.e., appreciate] the injustice of foreigners? For we see that this has greatly assisted them in extending their empire, that is, by making foreigners so unjust that they became people with whom just wars might be carried on, and the empire increased. . . .
WARS
Language Diversity, Wars of Unity, and the Tragedy of even Just Wars (CG 19.7)
After the state or city comes the world, the third circle of human society the first being the house, and the second the city. The world is fuller of dangers since it is larger, just as the larger sea is the more dangerous. Here, first of all, man is separated from man by the difference of languages. Suppose that two men, each without knowledge of the other's language, meet and are not compelled to pass, but instead remain in each other's company. Dumb animals, even of different species, would more easily have communication than they, even though they are human beings. For, their common nature is no help to friendliness when they are prevented by diversity of language from conveying their thoughts to each other. Thus, a man would more readily hold conversation with his dog than with a foreigner. But the imperial city has endeavored to impose on subject nations not only her yoke, but her language, as a bond of peace. Thus, interpreters, far from being scarce, are numberless. This is true. But how many great wars, how much slaughter and bloodshed, have provided this unity! Though these are past, the end of these miseries has not yet come. There have never been lacking, nor are yet lacking, hostile nations beyond the empire, against whom wars have been and are waged. Suppose, though, that there were no hostile nations. The very extent of the empire itself has produced wars of a more obnoxious description: social and civil wars. With these the whole race has been worried because of either actual conflict or the fear of a renewed outbreak.
If I attempted to give an adequate description of these many disasters, these stern and lasting necessities, though I am quite unequal to the task, what limit could I set? But, they say, the wise man will wage just wars. As if he would not all the more lament the necessity of just wars, if he remembers that he is a man. For if they were not just he would not wage them, and would therefore be delivered from all wars. For it is the wrongdoing of the opposing party which compels the wise man to wage just wars. This wrong-doing, even though it gave rise to no war, would still be matter of grief to man because it is man's wrong-doing. Let everyone, then, who thinks with pain on all these great evils, so horrible, so ruthless, acknowledge that this is misery. If anyone either endures or thinks of them without mental pain, this is a more miserable predicament still, for he thinks himself happy because he has lost human feeling.
All Wars Aim at Peace (CG 19.12-13)
Peace is such a great good, that even in this earthly and mortal life there is no word we hear with such pleasure, nothing we desire with such enthusiasm, or find to be more thoroughly gratifying. . . . Whoever gives even moderate attention to human affairs and to our common nature, will recognize that if there is no man who does not wish to be joyful, neither is there anyone who does not wish to have peace. For even they who make war desire nothing but victory that is to say, desire to attain to peace with glory. For what else is victory than the conquest of those who resist us? And when this is done there is peace. It is therefore with the desire for peace that wars are waged, even by those who take pleasure in exercising their warlike nature in command and battle. Hence it is obvious that peace is the end sought for by war. For every man seeks peace by waging war, but no man seeks war by making peace. For even they who intentionally interrupt the peace in which they are living have no hatred of peace, but only wish it changed into a peace that suits them better. They do not, therefore, wish to have no peace, but only an added peace to their mind. . . . As, then, there may be life without pain, while there cannot be pain without some kind of life, so there may be peace without war, but there cannot be war without some kind of peace, because war supposes the existence of some natures to wage it, and these natures cannot exist without peace of one kind or other.
GOD AND WAR (from Contra Faustus)
God Commands Wars with Just Retribution, not Cruelty (CF 22.74)
. . . The account of the wars of Moses [against the Canaanites] should not excite surprise or abhorrence. For in wars carried on by divine command, he did not show cruelty but obedience. God in giving the command, acted not in cruelty, but in just retribution, giving to all what they deserved, and warning those who needed warning. What is the evil in war? Is it the death of some who will soon die in any case, that others may live in peaceful subjection? This is mere cowardly dislike, not any religious feeling. The real evils in war are love of violence, revengeful cruelty, fierce and merciless hostility, extreme resistance, and the lust for power, and such like. It is generally to punish these things, when force is required to inflict the punishment, that, in obedience to God or some lawful authority, good men undertake wars. They find themselves in such a position as regards the conduct of human affairs, that right conduct requires them to act, or to make others act in this way. . . .
Wars Justified when in Obedience to God (CF 22.75)
A great deal depends on the causes for which men undertake wars, and on the authority they have for doing so. For the natural order which seeks the peace of mankind, ordains that the monarch should have the power of undertaking war if he thinks it advisable, and that the soldiers should perform their military duties in behalf of the peace and safety of the community. When war is undertaken in obedience to God (who would reprimand, humble, or crush the pride of man), it must be allowed to be a just war. For even the wars which arise from human passion cannot harm the eternal well-being of God, nor even hurt his saints. For in the trial of their patience, and the chastening of their spirit, and in bearing fatherly correction, they are rather benefited than injured. No one can have any power against them but what is given him from above. "For there is no power except what God establishes" (Romans 13:1) who either orders or permits. A righteous man, who might serve under an ungodly king, may perform the duty belonging to his position in the State in fighting by the order of his sovereign. For in some cases it is plainly the will of God that he should fight, and in others, where this is not so plain, it may be an unrighteous command on the part of the king, while the soldier is innocent, because his position makes obedience a duty. How much more must the man be blameless who carries on war on the authority of God, of whom everyone who serves him knows that he can never require what is wrong?
Turning the Other Cheek is Consistent with Divinely Ordained Wars (CF 22.76)
Some may suppose that God could not command warfare, because in later times it was said by the Lord Jesus Christ, "But I tell you, do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also" (Matthew 5:39). In response, what is here required is not a bodily action, but an inward disposition. The sacred seat of virtue is the heart, and such were the hearts of our fathers, the righteous men of old. But order required such a regulation of events, and such a distinction of times, as to show first of all that even earthly blessings are entirely under the control and at the disposal of the one true God. For temporal kingdoms and victory over enemies are considered to be earthly blessings, and these are the things which the community of the ungodly all over the world are continually begging from idols and devils. . . .
Old Testament does not Contradict New Testament (CF 22.77)
Our foolish opponents may be surprised at the difference between the rules given by God to the ministers of the Old Testament (at a time when the grace of the New was still undisclosed), and those given to the preachers of the New Testament (now that the obscurity of the Old is removed). But they will also find Christ himself saying one thing at one time, and another at another. . . . [For example,] at one time Jesus says, "I sent you without bag, or purse, or shoes, and you lacked nothing;" at another, "Now let him that has a scrip take it, and also a purse; and he that has a tunic, let him sell it and buy a sword" (Luke 22:35-36). But does not this show how, without any inconsistency, precepts and counsels and permissions may be changed, as different times require different arrangements? Some may say that there was a symbolic meaning in the command to take a bag and purse, and to buy a sword. But why, then, may there not be a symbolic meaning in the fact, that one and the same God commanded the prophets in old times to make war, and forbade the apostles? . . .
God's Reasons for Justice are Unknowable (CF 22.78)
It is therefore mere groundless misrepresentation to charge Moses with making war. For there would have been less harm by agreeing with God and making war, than in not doing it when God commanded him. From the perspective of divine providence, which pervades all things from the highest to the lowest, time can neither add anything nor take away. Thus, to dare to find fault with God himself for giving such a command, or not to believe it possible that a just and good God did so, shows, to say the least, an inability to consider this [timeless] aspect of divine providence. But all things come or go or remain according to the order of nature or what is deserved in each separate case. Within men, a right will is in union with the divine law, and ungoverned passion is restrained by the order of divine law. Consequently, a good man wills only what is commanded, and a bad man can do only what he is permitted, while at the same time he is punished for what he wills to do unjustly. Thus, in all the things which appear shocking and terrible to human feebleness, the real evil is the injustice; the rest is only the result of natural properties or of moral demerit. . . .
The ignorance and infirmity which prevent a man from knowing his duty, or from doing all he wishes to do, belong to God's secret punishment arrangement, and to his unknowable judgments, for with him there is no injustice. This much we know. But the reasons for this distribution of divine judgment and mercy, why one is in this condition, and another in that, though just, are unknown. Still, we are sure that all these things are due either to the mercy or the judgment of God, while the measures and numbers and weights by which the Creator of all natural productions arranges all things are concealed from our view. While God is not the author of sin, he is the controller of it. Thus, sinful actions, which are sinful because they are against nature, are judged and controlled, and assigned to their proper place and condition, in order that they may not bring discord and disgrace on universal nature. The judgments of God and the movements of man's will contain the hidden reason why the same prosperous circumstances which some make a right use of are the ruin of others, and the same afflictions under which some give way are profitable to others, and the whole mortal life of man upon earth is a trial (Job 7:4). This being the case, who can tell whether it may be good or bad in any particular case in time of peace, to reign or to serve, or to be at ease or to die or in time of war, to command or to fight, or to conquer or to be killed? At the same time, it remains true, that whatever is good is so by the divine blessing, and whatever is bad is so by the divine judgment.
Source: Augustine, City of God, Books 4, 14, and 19, tr. Marcus Dods; Contra Faustum, Book 22, tr. Richard Stothert.
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INSTITUTES OF JUSTINIAN: FOUNDATIONS OF ROMAN LAW
One of the world's great achievements in jurisprudence was the system of Roman law which covered a period of around 1,000 years, from its foundations in the Law of the Twelve Tables (c. 449 BC), to the Body of Civil Law (Corpus Juris) completed in 534 CE under the order of Byzantine Emperor Justinian I (527-565). Justinian's Body of Civil Law, in turn, became the basis of the system of Civil Law in continental Europe, which continues today not only there, but throughout the world through European colonization. Justinian's Corpus Juris is in four parts: the Code, the Digest, the Institutes, and the New Constitutions. The selections below are from the Institutes, which was designed as a textbook for new law students, and compiled from earlier legal works, especially the Institutes of Gaius, a second-century CE Roman jurist. The opening of the Institutes introduces definitions and concepts. The most foundational of these are the following three types of laws, the first two of which fall under the broad heading of "natural law":
Law of Nature (i.e., instinctive natural law): instinctive set of general laws of life and procreation for all animals, not just humans
Laws of Nations (i.e., rational natural law): rational laws that appear in all human societies and are divinely established
Civil Law: actual written and oral laws of a particular country, which include natural laws that pertain to all countries, and others that are unique to a particular country
The selections below discuss laws pertaining to "persons", particularly regarding slavery and circumstances under which slaves are freed. Next are laws pertaining to "things", particularly what we hold in common, how we first acquire property such as animals and land, and how we resolve property disputes when there is mixed ownership of a thing.
THE NATURE OF LAWS AND THEIR TYPES (from Institutes of Justinian)
Justice and Law (1.1)
Justice is the fixed and constant aim to give to everyone his due.
1. Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust.
2. Having laid down these general definitions, and our object being the exposition of the law of the Roman people, we think that the most beneficial plan will be to begin with an easy and simple path, and then to proceed to details with a most careful and scrupulous exactness of interpretation. Otherwise, if we begin by burdening the student's weak and untrained memory with a multitude and variety of matters, one of two things will happen: either we will cause him wholly to desert the study of law, or else, frequently being distrustful of his own powers (the commonest cause, among the young, of ill-success) after great effort we will eventually bring him to a point which he might have reached earlier, without such labor and confident in himself, had he been led along a smoother path.
3. The precepts of the law are these: to live honestly, to injure no one, and to give every one his due.
4. The study of law consists of two branches: public law, and private law. The former relates to the welfare of the Roman State; the latter to the advantage of the individual citizen. Of private law, then, we may say that it is of threefold origin, being collected from the precepts of nature, of the law of nations, and of the civil law of Rome.
The Law of Nature, The Law of Nations, and the Civil Law (1.2)
1. The law of nature is that which she has taught all animals. It is a law not peculiar to the human race, but shared by all living creatures, whether dwellers of the air, the dry land, or the sea. Hence comes the union of male and female, which we call marriage; hence the procreation and rearing of children, for this is a law by the knowledge of which we see even the lower animals are distinguished.
The civil law of Rome, and the law of all nations, differ from each other in this way. The laws of every community governed by statutes and customs are partly unique to itself, partly common to all mankind. Those rules which a state enacts for its own members are unique to itself, and are called civil law. But those rules prescribed by natural reason for all people are observed by all people alike, and are called the law of nations. Thus, the laws of the Roman people are partly peculiar to itself, partly common to all nations; a distinction of which we will take notice as occasion offers.
2. Civil law takes its name from the state in which it governs. For instance, with the civil law of Athens, it is quite correct to speak of the enactments of [the Athenian rulers] Solon or Draco. So too we call the law of the Roman people the civil law of the Romans, or the law of the Quirites (for the Romans are called Quirites after Quirinus). Whenever we speak, however, of civil law, without any qualification, we mean our own; exactly as, when the Greeks speak of "the poet" without addition or qualification, they understand that person to be the great Homer, whereas we [Romans] understand that person to be Virgil.
But the law of nations is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. For instance, wars arose, from which then followed [the rules of] captivity and slavery, which are contrary to the law of nature, since by the law of nature all men from the beginning were born free. The law of nations again is the source of almost all contracts; for instance, sale, hire, partnership, deposit, loan for consumption, and very many others.
Written and Unwritten Law
3. Our law is partly written, partly unwritten, as among the Greeks. The written law consists of statutes, plebiscites [i.e., votes by the people of a country], decrees of the Roman Senate (senatusconsults), enactments of the Emperors, edicts of the magistrates, and answers of those learned in the law. . . .
9. The unwritten law is that which usage has approved. For, ancient customs, when approved by consent of those who follow them, are like statute.
10. This division of the civil law into two kinds [i.e., written and unwritten] seems appropriate, for it appears to have originated in the institutions of two states, namely Athens and Lacedaemon [i.e., Sparta], since Lacedaemons typically committed to memory what was observed as law, while the Athenians observed only what they had made permanent in written statutes.
11. But the laws of nature, which are observed by all nations alike, are established, as it were, by divine providence, and remain ever fixed and immutable. But the municipal laws of each individual state are subject to frequent change, either by the tacit consent of the people, or by the subsequent enactment of another statute.
12. The entirety of the law which we observe concerns either persons, or things, or actions. We will first discuss persons: for it is pointless to know the law without knowing the persons for whose sake it was established.
LAWS PERTAINING TO PERSONS
Definitions (1.3)
In the law of persons, then, the first division is into free men and slaves.
1. Freedom, from which men are called free, is a man's natural power of doing what he pleases, so far as he is not prevented by force or law.
2. Slavery is an institution of the law of nations, against nature subjecting one man to the dominion of another.
3. The term "slave" is derived from the practice of generals to order the preservation and sale of captives, instead of killing them; hence they are also called mancipia [i.e. purchased property], because they are taken from the enemy by the strong hand.
4. Slaves are either born so, their mothers being slaves themselves; or they become so, and this either by the law of nations, that is to say by capture in war, or by the civil law, as when a free man, over twenty years of age, collusively allows himself to be sold in order that he may share the purchase money.
5. The condition of all slaves is one and the same: in the conditions of free men there are many distinctions; to begin with, they are either free born, or made free.
Free Born Persons (1.4)
A freeborn person is one free from his birth, being the offspring of parents united in wedlock, whether both are free born or both made free, or one made free and the other free born. He is also free born if his mother is free even though his father is a slave, and so also is he whose paternity is uncertain, being the offspring of promiscuous intercourse, but whose mother is free. It is enough if the mother is free at the moment of birth, though a slave at that of conception: and conversely if she is free at the time of conception, and then becomes a slave before the birth of the child, the latter is held to be free born, on the ground that an unborn child ought not to be prejudiced by the mother's misfortune. Hence arose the question of whether the child of a woman is born free, or a slave, who, while pregnant, is manumitted [i.e., freed from slavery], and then becomes a slave again before delivery. Marcellus thinks he is born free, for it is enough if the mother of an unborn infant is free at any moment between conception and delivery: and this view is right.
1. The status of a man born free is not prejudiced by his being placed in the position of a slave and then being manumitted: for it has been decided that manumission cannot stand in the way of rights acquired by birth.
Freedmen (1.5)
Those are freedmen, or made free, who have been manumitted from legal slavery. Manumission is the giving of freedom; for while a man is in slavery, he is subject to the power once known as "manus"; and from that power he is set free by manumission. All this originated in the law of nations; for by natural law all men were born free slavery, and by consequence manumission, being unknown. But afterwards slavery came in by the law of nations; and was followed by the benefit of manumission; so that though we are all known by the common name of "man," three classes of men came into existence with the law of nations, namely men free born, slaves, and thirdly freedmen who had ceased to be slaves.
1. Manumission may take place in various ways; either in the holy church, according to the sacred constitutions, or by default in a fictitious vindication, or before friends, or by letter, or by testament or any other expression of a man's last will. Indeed there are many other ways in which freedom may be acquired, introduced by the constitutions of earlier emperors as well as by our own.
2. It is usual for slaves to be manumitted by their masters at any time, even when the magistrate is merely passing by, as for instance while the praetor or proconsul or governor of a province is going to the baths or the theatre. . . .
Repeal of the Lex Fufia Caninia (1.7)
Further, by the lex Fufia Caninia [of Caesar Augustus] a limit was placed on the number of slaves who could be manumitted by their master's testament. But this law we have thought fit to repeal, as an obstacle to freedom and to some extent invidious, for it was certainly inhuman to take away from a man on his deathbed the right of liberating the whole of his slaves, which he could have exercised at any moment during his lifetime, unless there were some other obstacle to the act of manumission.
LAWS PERTAINING TO THINGS (2.1)
Things that are Common to All
In the preceding book we have explained the law of Persons. Now let us proceed to the law of Things. Of these, some are of private ownership, while others, it is held, cannot belong to individuals. For some things are by natural law common to all, some are public, some belong to a society or corporation, and some belong to no one. But most things belong to individuals, being acquired by various titles, as will appear from what follows.
1. Thus, the following things are by natural law common to all, namely, the air, running water, the sea, and consequently the seashore. No one therefore is forbidden access to the seashore, provided he abstains from injury to houses, monuments, and buildings generally; for these are not, like the sea itself, subject to the law of nations.
2. On the other hand, all rivers and harbors are public, so that all persons have a right to fish therein.
3. The seashore extends to the limit of the highest tide in time of storm or winter.
4. Again, the public use of the banks of a river, as of the river itself, is part of the law of nations. Consequently, everyone is entitled to bring his boat to the bank, and fasten ropes to the trees growing there, and use it as a resting-place for their cargo, as freely as he may navigate the river itself. But the ownership of the bank is in the owner of the adjoining land, and consequently so too is the ownership of the trees which grow upon it.
5. Again, the public use of the seashore, as of the sea itself, is part of the law of nations. Consequently, everyone is free to build a cottage upon it for purposes of retreat, as well as to dry his nets and haul them up from the sea. But they cannot be said to belong to anyone as private property, but rather are subject to the same law as the sea itself, with the soil or sand which lies beneath it.
Things Belonging to a Society or to No One
6. There are things belonging to a society or corporation, and not to individuals, such as buildings in cities, including theatres, racetracks, and similar things that belong to cities in their corporate capacity.
7. Things which are sacred, devoted to religious uses, or sanctioned, belong to no one, for what is subject to divine law is no one's property.
8. Those things are sacred which have been duly consecrated to God by His ministers, such as churches and votive offerings which have been properly dedicated to His service. These we have by our constitution forbidden to be alienated or pledged, except to redeem captives from bondage. If anyone attempts to consecrate a thing for himself and by his own authority, its character is unaltered, and it does not become sacred. The ground on which a sacred building is erected remains sacred even after the destruction of the building, as was declared also by Papinian.
9. Anyone can devote a place to religious uses of his own free will, that is to say, by burying a dead body in his own land. It is not lawful, however, to bury in land which one owns jointly with someone else, and which has not hitherto been used for this purpose, without the other's consent, though one may lawfully bury in a common sepulcher even without such consent. Again, the owner may not devote a place to religious uses in which another has a usufruct, without the consent of the latter. It is lawful to bury in another man's ground, if he gives permission, and the ground thereby becomes religious even though he should not give his consent to the interment till after it has taken place.
10. Sanctioned things, too, such as city walls and gates, are, in a sense, subject to divine law, and therefore are not owned by any individual. Such walls are said to be 'sanctioned,' because any offence against them is visited with capital punishment; for which reason those parts of the laws in which we establish a penalty for their transgressors are called sanctions.
Things Belonging to Individuals
11. Things become the private property of individuals in many ways; for the titles by which we acquire ownership in them are some of them titles of natural law, which, as we said, is called the law of nations, while some of them are titles of civil law. It will thus be most convenient to take the older law first. Natural law is clearly the older, having been instituted by nature at the first origin of mankind, whereas civil laws first came into existence when states began to be founded, magistrates to be created, and laws to be written.
Ownership of Wild and Tamed Animals
12. Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by anyone become at once the property of their captor by the law of nations. For natural reason admits the title of the first occupant to that which previously had no owner. So far as the occupant's title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though it is clear that if he goes on another man's land for the sake of hunting or fowling, the latter may forbid him entry if aware of his purpose.
An animal thus caught by you is deemed your property so long as it is completely under your control; but as soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it. It is deemed to have recovered its natural liberty when you have lost sight of it, or when, though it is still in your sight, it would be difficult to pursue it.
13. It has been doubted whether a wild animal becomes your property immediately when you have wounded it so severely as to be able to catch it. Some have thought that it becomes yours at once, and remains so as long as you pursue it, though it ceases to be yours when you cease the pursuit, and becomes again the property of anyone who catches it. Others have been of opinion that it does not belong to you until you have actually caught it. We confirm this latter view, for it may happen in many ways that you will not capture it.
14. Bees again are naturally wild; hence if a swarm settles on your tree, it is no more considered yours, until you have hived it, than the birds which build their nests there, and consequently if it is hived by someone else, it becomes his property. So too anyone may take the honeycombs which bees may chance to have made, though, of course, if you see someone coming on your land for this purpose, you have a right, to forbid him entry before that purpose is affected. A swarm which has flown from your hive is considered to remain yours so long as it is in your sight and easy of pursuit: otherwise it belongs to the first person who catches it.
15. Peafowl too and pigeons are naturally wild, and it is no valid objection that they are used to return to the same spots from which they fly away, for bees do this, and it is admitted that bees are wild by nature; and some people have deer so tame that they will go into the woods and yet habitually come back again, and still no one denies that they are naturally wild. With regard, however, to animals which have this habit of going away and coming back again, the rule has been established that they are deemed yours so long as they have the intent to return: for if they cease to have this intention they cease to be yours, and belong to the first person who takes them; and when they lose the habit they seem also to have lost the intention of returning.
16. Fowls and geese are not naturally wild, as is shown by the fact that there are some kinds of fowls and geese which we call wild kinds. Hence if your geese or fowls are frightened and fly away, they are considered to continue yours wherever they may be, even though you have lost sight of them; and anyone who keeps them intending thereby to make a profit is held guilty of theft.
17. Things again which we capture from the enemy at once become ours by the law of nations, so that by this rule even free men become our slaves, though, if they escape from our power and return to their own people, they recover their previous condition.
18. Precious stones too, and gems, and all other things found on the seashore, become immediately by natural law the property of the finder.
19. By the same law the young of animals of which you are the owner become your property also.
Ownership of Land
20. Further, soil which a river has added to your land by alluvion becomes yours by the law of nations. Alluvion is an imperceptible addition; and that which is added so gradually that you cannot perceive the exact increase from one moment of time to another is added by alluvion.
21. If, though, the violence of the stream sweeps away a parcel of your land and carries it down to the land of your neighbor it clearly remains yours. However, of course, if in the process of time it becomes firmly attached to your neighbor's land, they are deemed from that time to have become part and parcel thereof.
22. When an island rises in the sea, though this rarely happens, it belongs to the first occupant; for, until occupied, it is held to belong to no one. If, however (as often occurs), an island rises in a river, and it lies in the middle of the stream, it belongs in common to the landowners on either bank, in proportion to the extent of their riparian interest [i.e., their situation on a bank]; but if it lies nearer to one bank than to the other, it belongs to the landowners on that bank only. If a river divides into two channels, and by uniting again these channels transform a man's land into an island, the ownership of that land is in no way altered:
23. But if a river entirely leaves its old channel, and begins to run in a new one, the old channel belongs to the landowners on either side of it in proportion to the extent of their riparian interest, while the new one acquires the same legal character as the river itself, and becomes public. But if after a while the river returns to its old channel, the new channel again becomes the property of those who possess the land along its banks.
24. It is otherwise if one's land is wholly flooded, for a flood does not permanently alter the nature of the land, and consequently if the water goes back the soil clearly belongs to its previous owner.
Ownership of Objects when their Material is in Dispute
25. When a man makes a new object out of materials belonging to another, the question usually arises, to which of them, by natural reason, does this new object belong: to the man who made it, or to the owner of the materials? For instance, one man may make wine, or oil, or corn, out of another man's grapes, olives, or sheaves; or a vessel out of his gold, silver, or bronze; or mead of his wine and honey; or an ointment or eye-salve out of his drugs; or cloth out of his wool; or a ship, a chest, or a chair out of his timber. After many controversies between the Sabinians and Proculians, the law has now been settled as follows, in accordance with the view of those who followed a middle course between the opinions of the two schools. If the new object can be reduced to the materials out of which it was made, it belongs to the owner of the materials; if not, it belongs to the person who made it. For instance, a vessel can be melted down, and so reduced to the rude material bronze, silver, or gold of which it is made: but it is impossible to reconvert wine into grapes, oil into olives, or corn into sheaves, or even mead into the wine and honey out of which it was compounded. Suppose a man makes a new object out of materials which belong partly to him and partly to another, for instance mead [i.e., a drink of alcohol and honey] from his own wine and another's honey, or an ointment or eye-salve of drugs which are not all his own, or cloth of wool which belongs only in part to him. In this case there can be no doubt that the new object belongs to its creator, for he has contributed not only part of the material, but the labor by which it was made.
26. If, though, a man weaves into his own cloth another man's purple, the purple, though the more valuable, becomes part of the cloth by accession. However, the former owner of the purple can maintain an action of theft against the thief, and also a condiction [i.e., a claim for recovery], or action for reparative damages, whether it was he who made the cloth, or someone else; for although the destruction of property is a bar to a real action for its recovery, it is no bar to a condiction against the thief and certain other possessors.
27. If materials belonging to two persons are mixed by consent for instance, if they mix their wines, or melt together their gold or their silver the result of the mixture belongs to them in common. The law is the same if the materials are of different kinds, and their mixture consequently results in a new object, as where mead is made by mixing wine and honey, or electrum by mixing gold and silver; for even here it is not doubted that the new object belongs in common to the owners of the materials. If it is by accident, and not by the intention of the owners, that materials have become mixed, the law is the same, whether they were of the same or of different kinds.
28. But if the corn of Titius has become mixed with yours, and this by mutual consent, the whole will belong to you in common, because the separate bodies or grains, which before belonged to one or the other of you in severalty, have by consent on both sides been made your joint property. If, however, the mixture was accidental, or if Titius mixed the two parcels of corn without your consent, they do not belong to you in common, because the separate grains remain distinct, and their substance is unaltered; and in such cases the corn no more becomes common property than does a flock formed by the accidental mixture of Titius's sheep with yours. But if either of you keeps the whole of the mixed corn, the other can bring a real action for the recovery of such part of it as belongs to him, it being part of the province of the judge to determine the quality of the wheat which belonged to each.
29. If a man builds upon his own land with another's material, the building is deemed to be the landowner's property, for buildings become a part of the ground on which they stand. Yet he who was owner of the material does not cease to own them, but he cannot bring a real action for their recovery, or sue for their production, by reason of a clause in the Twelve Tables providing that no one will be compelled to take out of his house materials (tignum), even though they belong to another, which have once been built into it, but that double their value may be recovered by the action called "de tigno iniuncto." The term tignum includes every kind of material employed in building, and the object of this provision is to avoid the necessity of having buildings pulled down; but if through some cause or other they should be destroyed, the owner of the materials, unless he has already sued for double value, may bring a real action for recovery, or a personal action for production.
30. On the other hand, if one man builds a house on another's land with his own materials, the house belongs to the landowner. In this case, however, the right of the previous owner in the materials is extinguished, because he is deemed to have voluntarily parted with them, though only, of course, if he was aware that the land on which he was building belonged to another man. Consequently, if the house would be destroyed, he cannot claim the materials by real action. Of course, if the builder of the house has possession of the land, and the owner of the latter claims the house by real action, but refuses to pay for the materials and the workmen's wages, he can be defeated by the plea of fraud, provided the builder's possession is in good faith: for if he knew that the land belonged to someone else it may be urged against him that he was to blame for rashly building on land owned to his knowledge by another man.
31. If Titius plants another man's shrub in land belonging to himself, the shrub will become his; and, conversely, if he plants his own shrub in the land of Maevius, it will belong to Maevius. In neither case, however, will the ownership be transferred until the shrub has taken root: for, until it has done this, it continues to belong to the original owner. So strict indeed is the rule that the ownership of the shrub is transferred from the moment it has taken root, that if a neighbour's tree grows so close to the land of Titius that the soil of the latter presses round it, whereby it drives its roots entirely into the same, we say the tree becomes the property of Titius, on the ground that it would be unreasonable to allow the owner of a tree to be a different person from the landowner in which it is rooted. Consequently, if a tree which grows on the boundaries of two estates drives its roots even partially into the neighbour's soil, it becomes the common property of the two landowners.
32 On the same principle corn is considered to become a part of the soil in which it is sown. But exactly as (according to what we said) a man who builds on another's land can defend himself by the plea of fraud when sued for the building by the landowner, so here too one who has in good faith and at his own expense put crops into another man's soil can shelter himself behind the same plea, if refused compensation for labor and outlay.
33. Writing again, even if it is in letters of gold, becomes a part of the paper or parchment, exactly as buildings and sown crops become part of the soil. Consequently, if Titius writes a poem, or a history, or a speech on your paper and parchment, the whole will be held to belong to you, and not to Titius. But if you sue Titius to recover your books or parchments, and refuse to pay the value of the writing, he will be able to defend himself by the plea of fraud, provided that he obtained possession of the paper or parchment in good faith.
34. If, on the other hand, one man paints a picture on another's board, some think that the board belongs, by accession, to the painter, others, that the painting, however great its excellence, becomes part of the board. The former appears to us the better opinion, for it is absurd that a painting by Apelles or Parrhasius should be an accessory of a board which, in itself, is thoroughly worthless. Hence, if the owner of the board has possession of the picture, and is sued for it by the painter, who nevertheless refuses to pay the cost of the board, he will be able to repel him by the plea of fraud. If, on the other hand, the painter has possession, it follows from what has been said that the former owner of the board, [if he is to be able to sue at all], must claim it by a modified and not by a direct action; and in this case, if he refuses to pay the cost of the picture, he can be repelled by the plea of fraud, provided that the possession of the painter be in good faith; for it is clear, that if the board was stolen by the painter, or someone else, from its former owner, the latter can bring the action of theft. . . .
47. Accordingly, it is true that if a man takes possession of property abandoned by its previous owner, he at once becomes its owner himself: and a thing is said to be abandoned which its owner throws away with the deliberate intention that it will no longer be part of his property, and of which, consequently, he immediately ceases to be the owner.
48. It is otherwise with things which are thrown overboard during a storm, in order to lighten the ship; in the ownership of these things there is no change, because the reason for which they are thrown overboard is obviously not that the owner does not care to own them any longer, but that he and the ship besides may be more likely to escape the perils of the sea. Consequently anyone who carries them off after they are washed on shore, or who picks them up at sea and keeps them, intending to make a profit thereby, commits a theft; for such things seem to be in much the same position as those which fall out of a carriage in motion unknown to their owners.
Source: Institutes of Justinian, Tr. J.B. Moyle.
STUDY QUESTIONS
Please answer all of the following questions.
[Cicero]
1. According to Cicero in his argument against natural justice, Philus maintains that justice varies from place to place. What are his examples of this?
2. According to Cicero in the section on the benefits of injustice, Philus presents an example of two people, one just and the other unjust. What are their respective situations, and which does Philus think that we would prefer?
3. According to Cicero in the same section, Philus argues that human practice confirms the benefit of injustice. What are his examples of this?
4. According to Cicero in Laelius's defense of natural justice, how does he describe natural law and natural justice, and how does this affect the person who has the virtue of natural justice?
5. According to Cicero, what is Laelius's argument against democracies, Scipio's argument against aristocracies, and Scipo's argument in favor of monarchies?
6. According to Cicero, what is the mixed form of government that Scipio defends?
[Augustine]
7. According to Augustine, what are the primary differences between the two cities, and how is there both harmony and discord between them?
8. According to Augustine in the section on peace through the eternal law, what are the two main precepts, the three loves, and the principles of civic and domestic harmony?
9. For Augustine, the origin of servitude and slavery was sin. What was God's intention in this regard in the garden of Eden and before the time of Noah?
10. In the discussion of extending one's empire, Augustine examines a case of two men. Describe these two men and which we would prefer to be.
11. What is Augustine's view of wars of unity?
12. In the section on God and War, what are some of Augustine's arguments in defense of Moses?
[Justinian's Institutes]
13. In Section 1.1. of Justinian's Institutes, what are the definitions of justice and jurisprudence, the three precepts of law and the two branches of law?
14. In Section 1.2 of Justinian's Institutes, what are the main features of the law of nature, the law of nations, and civil law?
15. In the same section of Justinian's Institutes, what are the main features of written law and unwritten law?
16. In sections 1.3-1.7 of Justinian's Institutes, what are the main features of slaves, freeborn persons, and freedmen?
17. In Section 2.1 of Justinian's Institutes, give examples of things common to all, to society, and to no one.
18. In Justinian's Institutes, what are some of the disputes regarding ownership of animals?
19. In Justinian's Institutes, what are some of the disputes regarding ownership of land?
20. In Justinian's Institutes, what are some of the disputes regarding objects with shared material?
21. Short essay: please select one of the following and answer it in a minimum of 100 words.
[Cicero]
a. In Cicero's criticism of natural justice, Philus argues that justice varies from place to place. Is this a good criticism of natural justice? Explain.
b. In Cicero's criticism of natural justice, Philus argues that justice is inconsistent with worldly wisdom, such as how we are taught to gain wealth and power. Is this a good criticism of natural justice? Explain.
c. In Cicero's criticism of natural justice, Philus argues that justice is not the result of conscience, but of human weakness and the need to band together for protection. Explain the social contract argument that he presents there and discuss whether you agree.
d. According to Cicero in the section on true justice vs. practical benefit, Scipio argues that the benefits of injustice are outweighed by the disbenefits of remorse. Explain his argument and discuss whether you agree.
e. According to Cicero, Scipio argues that commonwealths are best comprised of wise and virtuous aristocratic governments. Explain why he holds this view and what might be wrong with it.
[Augustine]
f. Explain Augustine's view of domestic peace and whether you agree with it.
g. For Augustine, the main point of discord between the heavenly and earthly cities is their respective advocacy of monotheism vs. polytheism. Are their ways of resolving this discord? Explain.
h. Augustine argues that a soldier who fights in an unjust war is blameless and simply follows his duty as he is ordered. Why might Augustine hold that position, and what if anything is wrong with it?
i. Augustine argues that wars justified when in obedience to God, even if we do not understand God's conception of justice. Is anything wrong with this view? Explain.
j. Augustine argues that Jesus' command for us to turn the other cheek requires an inward disposition, not a bodily action. Thus, this command of Jesus is consistent with God telling us to go to war. Explain this position and discuss whether you agree.
[Justinian's Institutes]
k. The concept of "nature law" in the Justinian's Institutes is ambiguous, first referring to laws of nature as that which is instinctive to animals, and, second, that contained indicated by the law of nations, which is both rational and divinely prescribed. Give examples of both of these types of "natural law" as presented in the reading, and discuss whether they represent a coherent notion of "natural law". (Hint: it may help to do a word search for the words "nature" and 'natural" in the reading to find all the relevant references).
l. Sections 1.3 and 1.5 of Justinian's Institutes suggest that freedom is natural to us, and that slavery was created through the law of nations. Thus, it seems that both natural freedom and institutionalized slavery are part of natural law, which seems contradictory. Discuss this problem and whether it is possible to consistently make both freedom and slavery part of natural law.
m. The section of Justinian's Institutes titled "Things that are Common to All" states that natural law grants us free access to running water and the sea. However, it also states that the boundaries of these bodies may be privately owned. Discuss a potential conflict that might arise here, and what its solution might be.
n. In Section 2.1 of Justinian's Institutes, the law presents various disputes about private property and then stipulates a solution. Select one of these disputes and argue in opposition to the stipulated solution.