I Virtue versus institutions

Is justice a character trait — a virtue — or is it a property of institutions? Consider Socrates urging his fellow Athenians in Plato’s Apology:

Happiness or the good life is the natural goal of all our pursuits, but this can only be achieved with virtue, understood as a character trait of individual persons: virtuous people will have the knowledge of the good required to achieve happiness.Footnote ² The virtuous person will know that only the just life can be happy. Plato’s political theory is developed analogously: the best state is one ruled by those who are virtuous, so that its citizens may lead virtuous lives — or at least lives that are as virtuous as they can be. Aristotle’s best state, too, is characterised by the virtue of its rulers: the better, that is to say the more virtuous the rulers are, the better the state. A just state, then, is a state ruled by just rulers. Justice is understood as a personal virtue, a character trait.

Now compare to this the justification offered by Polybius for writing a history of the Roman republic, rather than a history of the successes of Athens or Thebes:

For Plato or Aristotle, the idea that the virtue of leaders is not a fitting subject matter would be very surprising indeed. The edifice of Plato’s ideal state rests on the education of the guardians as a structural element; and Aristotle is equally concerned with the virtue, or excellence of character, of those who rule. When Polybius tells us that in order to explain Rome’s extraordinary success he will focus, not on virtue, but on the ‘composition of their constitution’ and the (3.2.6) ‘peculiar nature’ of their form of government (ἡ τοῦ πολιτεύματος ἰδιότης), he is giving a radically different answer to the question of what accounts for a stable, just and successful state. The causal explanation Polybius has in mind becomes obvious to the reader of the famous sixth book of his Histories: the constitutional order and the relationship of institutions within that order count for far more than virtue.

Why? Because Polybius does not trust virtue. It is all too vulnerable to decaying naturally into its opposite, vice. This is an inbuilt, hard-wired flaw that follows from Polybius’ pessimistic anthropological assumptions: constitutional order based on virtue will inevitably fall ‘prey to the evils engendered in them’, ‘just as rust in the case of iron and woodworms and shipworms in the case of timber.’Footnote ⁴ Polybius, motivated by the perceived vulnerability of virtue, put forward an institutional solution to this vulnerability. As the Renaissance humanist Bernardo Rucellai (1448–1514) put it approvingly in De urbe Roma (completed by 1505), the earliest known reference to book 6 of Polybius’s Histories after antiquity, Polybius had recognised that ‘by nature’ ‘the vices are ingrained and bound to the virtues, and cannot be easily separated from each other.’Footnote ⁵

This radical change of emphasis from the centrality of virtue to the centrality of constitutional order is arguably at the heart of much of Roman political thought. The recognition in recent decades of this change of emphasis has contributed to a corresponding shift in scholarship from an almost exclusive interest in Greek political thought to the realisation that there is much in the political ideas entertained by the Romans — or by a Greek observer of Rome such as Polybius, who might be considered a Roman political thinkerFootnote ⁶ — that is worth investigating. This is not to claim that the insight that Greek and Roman political thought interestingly diverge is novel in any way; it is simply to observe that the last decade or two have seen a rapidly expanding scholarly literature concerned with the political and legal thought emanating from the Roman republic in generalFootnote ⁷ and the ideas of Marcus Tullius Cicero in particular.Footnote ⁸ Although this literature has developed in different disciplines — classics, ancient history, ancient philosophy, history of political thought, political theory — it is noteworthy that it has sustained a scholarly exchange across disciplines.Footnote ⁹

II Republicanism

Why this surging interest in Roman ideas? The key driver is an interest in republicanism which has been manifest at least since Hans Baron’s and Zera Fink’s important books.Footnote ¹⁰ J. G. A. Pocock’s influential history of republicanism, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975), tended to conflate Greek and Roman ideas about self-governing city-states.Footnote ¹¹ Ancient republicanism, the thinking went, was concerned with something the liberal thinker Benjamin Constant had already in 1819 termed ‘ancient liberty’, namely ‘the sharing of social power among the citizens of the same fatherland’. The inhabitants of those ancient city-states lacked, according to Constant, any ‘notion of individual rights’ and were ‘lost in the nation’, in their small ‘ancient republics’. Constant drew a stark contrast with modern states, which ‘are incomparably larger than Sparta or than Rome’; the moderns, instead of waging war, ‘resort to commerce’; they ‘conquer, by mutual agreement, what one can no longer hope to obtain through violence’ and aim for personal, not political, happiness. The ancients sacrificed their ‘individual independence’ to ‘their political rights’, whereas the moderns aim at the ‘enjoyment of security in private pleasures’.Footnote ¹²

Republicanism as a tradition of political thought was on this view a common Greco-Roman outlook unified by reliance on citizen virtue, a public-mindedness which made possible political participation and self-government to the extent that virtue was spread out in the population. Partly this was taken to be descriptive of the city-states of classical antiquity, but then quite clearly assumed a normative character already in the hands of Renaissance thinkers who held up the ancient city-republics as a political model for their own time. It is not always clear whether virtue in this tradition is supposed to be crucial because it enabled the good life or because it is a necessary instrument to provide stability and defence — whether republicanism is Aristotelian, one might say, or rather Machiavellian, although Pocock gives it an Aristotelian pedigree — but it is clear that Pocock’s republicanism was supposed to provide a somewhat nostalgic antidote to the perceived ills of ‘modern liberty’, the liberal kind of rights-based ‘enjoyment of security in private pleasures’ that large commercial states made possible.

But was there in fact ever such a Greco-Roman tradition of republicanism running through the Italian city-states, helping to ignite the English civil wars in the seventeenth century, and making itself felt in the British colonies in America until the framing of the US Constitution, as Pocock had maintained? Was there, that is, anything like a unified legacy of republicanism? More recent scholarship suggests that the label obscures more than it reveals. Quentin Skinner and other scholars have argued that Roman republicanism was characterised by a specifically Roman conception of liberty as freedom from arbitrary intrusion — an idea about freedom which was derived mostly from Roman legal texts, differed in important ways from Aristotelian ideas about politics, and proved influential in early modern political thought.Footnote ¹³ It is important to realise that Roman republicanism for these scholars meant a political theory, a theory which not only had been reconstructed from texts that were written long after the Roman republic had turned into a monarchy, but which also operated at quite a remove from the actual workings of the Roman republic. The political and constitutional context and the institutional framework of the late Roman republic received comparatively little attention in this body of scholarship compared to the histories of Livy and Tacitus or the compilation of private law in the Digest.Footnote ¹⁴

Eric Nelson in 2004 provided an account of a specifically Greek republicanism, an early modern tradition of thought he identifies with the rejection of the Roman conception of liberty just mentioned. The freedom Plato and Aristotle value, Nelson writes, is of a different kind altogether, namely ‘the condition of living according to nature’, so that ‘most individuals cannot said to be “free” in this sense unless they depend upon their intellectual and moral superiors (if a man ruled by his passions is left to rule himself, then he is enslaved)’.Footnote ¹⁵ The purpose of politics on this Greek account is neither liberty nor glory but happiness (eudaimonia), and virtue as the necessary and sufficient path to happiness had therefore to be inculcated and was the key part of the job-description of the good ruler.

The scholarship cited so far has thus highlighted important differences between Greek and Roman versions of republicanism: a Greek concern with virtue and the good life meets a Roman concern with liberty as non-domination, and perhaps also a Roman concern with (martial) virtue and the common good. There is, however, a further complication which yet more recent scholarship has revealed. While we have — as Valentina Arena shows in her Libertas and the Practice of Politics in the Late Roman Republic (2012) — important evidence supporting Skinner’s claims about a certain conception of liberty being important for Roman political thought, there remains the problem, raised by Claudia Moatti, that ‘Roman republicanism’ is an anachronistic term imposed by later writers on the Roman evidence.Footnote ¹⁶ In addition, there is mounting evidence that especially Cicero, reacting as he was to the crises and collapse of the late Roman republic, had sought to formulate a political and legal theory that cannot easily be described in terms of the various republicanisms sketched above.Footnote ¹⁷ The republican label of either the Greek or the Roman variety, that is, may not really fit Cicero.

This is ironic, given the studied invocation of context by prominent scholars of republicanism who adhere, for the most part, to the method of the so-called Cambridge School within the history of political thought, developing from the late 1960s. This method, formulated and defended perhaps most influentially by Quentin Skinner, seeks to unearth what historical thinkers were trying to do in writing what they wrote, an investigation which in turn presupposes the crucial importance of political and linguistic context: without knowing this context, Skinner and others believe, we cannot possibly understand what historical authors were trying to achieve and we cannot therefore recover the intended meaning of their texts.Footnote ¹⁸ Yet if we do attend carefully to the historical context within which Cicero wrote, namely the political history and constitutional institutions and arguments of the late Roman Republic, we may appreciate that he intended to provide a diagnosis of the crisis of the late Republic and a corresponding remedy which cannot easily be assimilated to the strands of republicanism sketched above. Cicero relied neither on the Greek eudaimonist model nor on a Skinnerian defence of ‘liberty before liberalism’. He instead was motivated by the crises of the Republic to formulate a political theory which, in the vein of Polybius, economised on virtue and put legal institutions front and centre. This political theory, while clearly growing out of the crisis of the late Roman republic and seeking to provide a remedy to this crisis, cannot simply be reduced to context-bound advocacy. Cicero’s political theory addresses general issues in political theory at a sufficiently abstract level to become highly relevant again centuries later. Originally conceived as an answer to the collapse of the Roman republic, Cicero’s political and legal ideas managed to find and engage new audiences within early modern Europe’s rising large-scale political and legal orders.

III Cicero’s original conception of liberty

The reason why Cicero’s political theory cannot just be assimilated to what Skinner has called ‘neo-Roman’ republicanism is certainly not that the idea of liberty was not important to Cicero — it was very important to him, but his conception of liberty was original and subtly different from the neo-Roman, or republican, one. As Michael Hawley demonstrates in his recent Natural Law Republicanism: Cicero’s Liberal Legacy, while Cicero’s conception of liberty does have some of the features of what Arena, Skinner and other scholars of republicanism mean by liberty as non-domination, there are crucial differences. Whereas for the philosopher and contemporary defender of republicanism Philip Pettit someone who is constrained by a state in which she has participatory political rights should be considered ‘non-free, but not unfree’, for Cicero, ‘[l]iberty itself still lies primarily in the absence of constraint’.Footnote ¹⁹ For Cicero, in other words, living in a legal order provides the necessary conditions of liberty, but it is not sufficient; and political participation is neither necessary nor sufficient for being free. By contrast, liberty as non-domination, at least in some interpretations, either identifies liberty with political participation or with equal subjection to law where no citizen ‘has a power of arbitrary interference over another’.Footnote ²⁰

Hawley shows very convincingly that Cicero’s conception of liberty follows from his account of human nature, his doctrine of personae (Off. 1.107): each human being partakes in universal human nature qua rational being and at the same time expresses their specific individual nature. Only the first, universal, nature generates moral obligations, whereas the second, individual, nature leaves room for individual development and thus requires liberty.Footnote ²¹ ‘[E]ach of us’, Cicero argues against Plato, ‘is most likely to know our own nature better than anyone else, even someone wiser than we’.Footnote ²² Hawley argues that ‘Cicero’s defense of this sort of liberty is a striking philosophical first, and scholars have yet to fully come to grips with the significance of Cicero’s innovation, which implicates not only his theory of freedom but also his doctrine of natural law’.Footnote ²³

With real insight, Hawley points out that a novel conception of natural law lies at the heart of Cicero’s political theory: a notion of natural law that is realist, in that the natural law is an objective part of the world and can be found out by reason, yet it is novel vis-à-vis Greek antecedents in that it does not incorporate a substantive conception of the highest good. Cicero’s natural law does not inculcate a vision of the good life, but merely provides rules of justice accessible to reason. This kind of natural law serves as a foundation for the legal order Cicero believes states to consist in and thus provides a justification for popular sovereignty. According to Hawley, Cicero identified an enduring tension which still can be felt in modern liberal democracies: that between popular sovereignty and objective standards of justice, such as those encapsulated in human or constitutional rights. Cicero, Hawley thinks, not only left us with the tension but also attempted to resolve it, by making a constitutional order based on natural law prior to popular sovereignty: rule by the people can thus be justified in terms of a deeper, more fundamental normative framework.Footnote ²⁴ But unlike the proposals of his Greek predecessors, Cicero’s natural law does not presuppose a particular conception of the good life, a particular summum bonum, and it does not require those who are subject to it — all members of the human species, it turns out, for this outlook is ultimately egalitarian — to perfect an inbuilt goal (telos). Instead, this new kind of natural law — which was to develop extraordinary influence in early modern political thoughtFootnote ²⁵ — seems to establish the kind of liberty that is possible in a legal order, and in a legal order only, by making certain rights and corresponding obligations stick.Footnote ²⁶

IV Due process, property rights and the justice of taxation

What rights are these? Is it even possible to speak of individual rights in the context of ancient republicanism? The conventional view has been that in classical antiquity, liberty was guaranteed by political participation, but individual rights were unknown and would only develop as a specifically modern way of securing liberty.Footnote ²⁷ However, as the forthcoming first volume of The Cambridge History of Rights will show, the idea of individual, or subjective, rights was present in many parts of the ancient world and perhaps especially so in Roman political thought and Roman law.Footnote ²⁸ It is important to realise that the very idea of a rights-based political theory is at odds with virtue-based theories of justice. As Jed Atkins explains, ‘[s]ince rights on [Cicero’s] account are no longer strictly rendered according to merit, they can enter into the calculation of how to distribute goods according to justice at a different point’. For a virtue-theorist such as Aristotle, rights (if Aristotle can be said to have a conception of rights at all) ‘are the product or result of distributive justice’, but for Cicero, ‘rights are factors that one must take into account as one performs the calculations. They are trumps or limitations on how the goods may be distributed’.Footnote ²⁹ Recent research has emphasised the crucial importance of due process — i.e. the right of appeal (provocatio ad populum) — for both the crises of the late Republic and the political thought emerging from these crises: indeed, as Cicero put it, due process constitutes the very essence of a free state (proprium liberae civitatis).Footnote ³⁰

But provocatio was not the only right that was key to Roman political thought; property, too, proved centrally important. Like provocatio, to be effective property needed to be secured by law, but also like provocatio, its normative justification did not rest on positive law alone. Property and due process, that is, were considered to have a more fundamental validity which could not be abrogated even by formally valid processes, such as the urban praetor’s edict or statute. An abrogation of these fundamental rights might have been formally fine (lege), but would still have been unlawful or unconstitutional (not iure). Here again, Cicero’s Roman outlook, no less than the quote from Polybius above, has the potential to shock those who expect, in the vein of Plato or Aristotle, a eudaimonist justification of the state but receive instead a proto-Lockean account of the purpose of the state: ‘states (res publicae) and cities (civitates) were constituted especially so that men could hold on to what was theirs. It may be true that nature first guided men to gather in groups; but it was in the hope of safeguarding their possessions (spe custodiae rerum suarum) that they sought protection in cities’.Footnote ³¹ The chief right, next to provocatio, that needs to be protected by the state turns out to be the right to private property, which on this account is a natural, or at least pre-political, right.Footnote ³² Malcolm Schofield in his Cicero: Political Philosophy comments that ‘without security of private property, there can remain no sense of what matters above all if there is to be a proper res publica: that the common interest in the protection of everybody’s interests is being sustained, and that citizens perceive there to be a just social order, and share a consensus on its being so’.Footnote ³³

The emphasis on private property is an important feature both of Cicero’s theory of justice and of the Roman legal systemFootnote ³⁴ as a whole: Andrew Monson has recently argued that Cicero’s arguments aimed successfully at the insulation of private property from taxation and might therefore have contributed to the centrifugal tendencies of the late Republic, insofar as they were successful in impeding the emergence of something resembling an autonomous fiscal state. The Roman people (populus) on this view was, Monson writes, ‘a creature of the law rather than its sovereign’, which meant that the ‘state could not become autonomous from the interests of propertied citizens, could not levy taxes by majority vote and could not use taxation to compensate’ the indigent.Footnote ³⁵

Not everyone agrees: Kristina Neumann has shown that Cicero was by no means as hostile to taxation as he is usually portrayed,Footnote ³⁶ and Phillip Mitsis has sought to make the case for an interpretation of Cicero’s claim, quoted above, which does not impute a conception of private property to the Roman thinker. Rather, Mitsis argues, when Cicero says that the purpose of the state is the protection of citizens’ ‘things’ (custodia rerum suarum), he means only to claim that use, or possession, of common property should thus be protected.Footnote ³⁷ Cicero’s views of private property and the justice of taxation are central to how one sees his political thought and Roman political theory as a whole.

The scholarly debate about Cicero’s views on property and the justice of taxation is downstream from the question of how far Cicero’s outlook, especially as developed in the mature political and ethical theory of the De officiis, is dependent on the Greek Stoic Panaetius (c. 185–c. 110), whose lost work Peri tou kathêkontos Cicero’s De officiis ostensibly follows. Given that for orthodox Stoicism property was but a ‘preferred indifferent’ and thus hardly worthy of being elevated to a pre-political right capable of constraining the state, scholars have either downplayed the prominence of property for Cicero,Footnote ³⁸ or argued that Cicero was influenced by a Roman brand of Stoicism, counting Panaetius, Diogenes of Babylon and Antipater of Tarsus among its proponents, which saw property as a genuine good.Footnote ³⁹ Both of these options seem implausible to me: Cicero is clearly fond of property rights, and Stoicism, Romanised or not, does not seem the most congenial framework to account for this. Better, to my mind, to acknowledge Cicero’s originality and independence from Greek models in this regard and look to a more promising matrix for this kind of thinking: namely specifically Roman legal ideas and Roman juridical language.Footnote ⁴⁰

This approach is particularly fruitful when it comes to the third book of De officiis, for it is here that Cicero explicitly claims to have left Panaetius’ Stoic influence behind. Recent scholarship has been very open to Cicero’s originality: Nathan Gilbert has convincingly portrayed Cicero as an innovative philosopher in his own right, without going quite as far as Eckard Lefèvre, who had seen Cicero as almost completely independent from Panaetius, while Thornton Lockwood has shown Cicero to be an original philosopher of just war and just empire who based his just war theory on existing legal institutions which he revised in view of his normative vision.Footnote ⁴¹ Lockwood’s contribution suggests that Cicero’s originality is best seen in light of the Roman legal ideas and institutions operating in the background.

V Virtue becomes enforceable

If one explores this avenue and attends closely to this Roman legal background, the vexing relationship between pre-political rights guaranteed by natural law and the authority of the state (res publica) might become clearer. This is a desideratum in the research literature, so all I can do here is briefly illustrate the potential of this approach. In the third book of De officiis, we encounter what is on its face simply a dispute between two Stoic philosophers, Diogenes of Babylon and Antipater of Tarsus. If we pay close attention to the legal background, however, we realise that this really constitutes a jurisprudential debate, conducted in Roman-law terms, concerning the extent to which claims based on good faith (bona fides) should be enforceable at law (Off. 3.50–57; cf. 3.58–78; 3.89–96). The debate is framed around the respective claims of the ius civile and the law of nature (which Cicero identifies with the ius gentium, or law of nations): whereas Diogenes insists on the priority of the positive civil law rules, which permit for example a seller to conceal defects in the object they are selling (Off. 3.55), Antipater counters that caveat emptor will not do and that good faith implies a warranty for hidden defects.

Julia Annas has interpreted the debate as a confusion of moral and legal claims and argued that there is no real debate, merely a category mistake.Footnote ⁴² According to Annas, Diogenes simply claimed that there was no legal action available, whereas Antipater argued that the seller of impaired goods has a moral obligation to disclose defects; they argue on different levels and hence their views are compatible. However, once the legal background is taken into account it becomes clear that the debate is real. The exchange must be read in the context of the development of legal remedies in the late Roman Republic and the rise of an autonomous jurisprudence: Cicero is writing at a time when it has become increasingly possible to press what previously were merely moral claims at law, before the praetor, with the so-called bonae fidei iudicia, legal remedies which encompassed contracts of sale, lease, hire, partnership (societas) and mandate and were based on good faith. It is these legal actions Cicero has in mind in De officiis, and the point is that in his time it had become possible to pursue claims at law which earlier had been merely moral obligations. Antipater, therefore, makes a valid argument against Diogenes and meets him on his own ground — concealing defects will no longer be protected by the praetor.Footnote ⁴³

This brings us back to our overarching topic in that it means that what had hitherto been the exclusive province of virtue had now become, in Roman legal reality and with Cicero’s endorsement, the province of the formulary legal process, of the praetor drawing up a precisely worded formula: what had been the province of virtue had thus become that of institutions.Footnote ⁴⁴ The integration of these hitherto moral claims into legal procedure and their potential enforceability is the topic of the debate between Diogenes and Antipater, and Cicero here is taking the side of the jurists who have successfully integrated good faith claims into the law and thus contributed to creating a hierarchy of legal sources, where the law of nations and natural law managed to take priority, with regard to some issues at least, over the existing positive civil law.Footnote ⁴⁵ Read this way, we might attribute to Cicero the intention of integrating moral concepts from the law of nations, such as certain rights and obligations entailed by (Off. 3.28) the ‘partnership of the whole human species’ (societas humani generis), into the enforceable legal order. Note that the language of partnership (societas) here suggests that Cicero thinks of all humans as connected by the good-faith contract of partnership, something that entails at least some moral rights of justice ‘even for the lowliest’, i.e. slaves (Off. 1.41).Footnote ⁴⁶

Now what are the implications of this for the relationship between rights protected by natural law and the authority of the state? What we have seen so far does not undermine Andrew Monson’s argument about the centrality of pre-political (or ‘pre-fiscal’, as he calls them) property rights for Cicero, but it might make it harder to see Cicero merely as a defender of the oligarchic status quo, or the good old days of the middle Republic.

To see the full picture, one needs to add to this Cicero’s discussion of Aratus of Sicyon (Off. 2.81–83). Aratus, after liberating Sicyon in 251 b.c.e. from the fifty-year rule of tyrants, had used a system of public compensation to negotiate the competing claims of those who had been expropriated by the tyrants and those who had been occupying these properties during the tyrants’ rule. Aratus’s problem was that most of the people who now held property held it in good faith: property had changed hands, some had been given as dowry, people had inherited, ‘all without injustice’.Footnote ⁴⁷ Aratus solved the problem by obtaining from king Ptolemy ‘the assistance of a large sum of money’ and then, ‘[a]fter valuing the occupancies, he succeeded in persuading some that they would rather accept money and give up their occupancy, others to think it more advantageous to be allocated so much than to recover their property’. Thus ‘peace was established, and they all left without a quarrel’.Footnote ⁴⁸

Here, as in the jurisprudential debate between Diogenes and Antipater, what is at stake is a tension between positive municipal law and moral claims based on natural law, which Cicero thinks deserve to be institutionalised and integrated into one and the same normative framework as the positive claims. According to positive municipal law, only those who had been expropriated had title, not those who subsequently held it in good faith. Cicero brings in the example of Aratus to solve one of the thorniest issues his own political theory generates, which is precisely the relationship between certain pre-political rights guaranteed by natural law, on the one hand, and the claims of the state, conceived as an impartial legal order, on the other. It is for this reason that Cicero contrasts Aratus’ policies with Sulla’s proscriptions and Caesar’s confiscations: Sulla and Caesar had acted arbitrarily, unconstitutionally and without good faith, whereas Aratus ‘held everyone together under a single standard of fairness (omnis aequitate eadem continere)’.Footnote ⁴⁹ Aratus, that is, had brought about an impartial just solution (sine iniuria) by reconciling existing title with justified expectations, positive with natural rights, while Sulla and Caesar, by auctioning off the property of their murdered enemies, had violated both constitutional norms (ius) and Cicero’s basic principle of justice: not to inflict harm (Off. 1.20).

This might tell us something about the issue raised by Andrew Monson: is Cicero’s outlook really at odds with an autonomous fiscal state? Does Cicero’s political theory protect private property at all costs? Monson admits that the underlying principle of justice in the Aratus example does not rely on Ptolemy’s subsidy, for ‘the principle would be [the] same if [Aratus] had used a tax or public debt’. He still thinks, however, that Aratus provides merely a ‘moral example from Greek philosophy’, which cannot overcome ‘the legal constraints that Cicero, much like Polybius, deemed necessary to prevent abuses of public office’.Footnote ⁵⁰ This strikes me as implausible: the Aratus example is designed, it seems, to show that the purpose of the state consists in protecting private property from arbitrary confiscation, but this is because the state answers to an even higher purpose: that of guaranteeing justice, which may well allow for, indeed require, a measure of fiscal autonomy — an impartial legal order — as in the case of Aratus.

VI A Kantian Cicero?

In a recent article I have argued that this ideal of an impartial juridical community, which economises on virtue and seeks the integration and institutionalisation of moral claims, warrants looking at Cicero through a lens inspired by Immanuel Kant, who was very likely influenced by Cicero’s De officiis.Footnote ⁵¹ Other recent scholarship, however, emphasises the differences between the two thinkers. In a recent contribution, Philipp Brüllmann has argued for a stark contrast between Cicero’s De officiis and Kant’s Groundwork of the Metaphysics of Morals, because Cicero, according to Brüllmann, ‘befasst sich … kantisch gesprochen, nur mit dem Pflichtgemäßen’.Footnote ⁵² While that is true, it is Cicero’s very focus on what Kant would call duties of justice that provides the chief reason why De officiis turns out to be important for Kant’s Doctrine of Right (as opposed to the Groundwork). Brüllmann goes on to argue that Kant’s reason for rejecting Cicero’s De officiis is ultimately its ‘eudaimonist foundation’, but I would argue, with other interpreters, that Cicero does not in fact defend a eudaimonist outlook and is precisely for this reason congenial to Kant.Footnote ⁵³ As Michael Hawley puts it convincingly, the ‘achievement of the communal good life through the pursuit of virtue’ is ‘entirely absent’ from Cicero’s view of the purpose of the state.Footnote ⁵⁴

When applied to the problem of private property and the justice of taxation, a Kantian lens might in fact be best suited to reveal that for Cicero, property rights are natural, or at least pre-political, but, as for Kant, they remain provisional until being ratified in the rightful condition of the state, by way of public law.Footnote ⁵⁵ Cicero fully accepts taxation implemented in accordance with principles of legality, and this malleability of property in the legal order is the reason Thomas Hobbes (1588–1679), otherwise no friend of republican authors, could quote Pro Caecina 74 and cleverly enlist Cicero among those who ‘attributeth all Propriety to the Law Civil’.Footnote ⁵⁶

VII The first reason for downgrading virtue: Polybius’ constitutional theory

The downgrading of virtue vis-à-vis law and institutions in Cicero’s political thought requires explanation. There are two broad reasons for it. The first is the influence of Polybius, and the second is Cicero’s adherence to the scepticism of the new Academy. As Tue Søvsø argues convincingly, Polybius’ influence is very pronounced indeed in the constitutional theory of De re publica.Footnote ⁵⁷ It makes itself felt perhaps most intensely in those passages where Cicero dwells on the reasons for the instability of even the good simple constitutional forms. Monarchy is always on a slippery path to tyranny because virtue cannot be trusted: it is certainly not sufficient. Witness King Cyrus, who gains the epithet ‘the most just and most wise of kings’ (iustissimus sapientissimusque):Footnote ⁵⁸ ‘Beneath that tolerable and even lovable king Cyrus … there lurks, at the whim of a change of his mind, a Phalaris, the cruellest of all … it’s an easy downward path’.Footnote ⁵⁹ The same with the rulers of Marseille: they rule ‘with the greatest justice’ (summa iustitia),Footnote ⁶⁰ but this aristocracy is ‘very close to the oligarchic conspiracy of the Thirty who once ruled in Athens’ and can tilt anytime. And the same with democracy, which can tilt into ‘the madness and license of a mob’.Footnote ⁶¹

Note that when Cicero here says that the rulers of these simple constitutional orders are most just, what is meant is justice as a virtue, a character trait. It is this kind of justice — virtue — which cannot be trusted and as quickly as inevitably turns into vice. When Cicero applies the term ‘justice’ to laws, institutions, or the state, on the other hand — the kind of justice without which no state can exist (Rep. 2.70) — he seeks to supply the remedy to the problems he and Polybius diagnosed in the simple constitutional forms. In his De re publica, Cicero made Scipio formulate a famous definition of the state (Rep. 1.39). There is no proper state (res publica) without a people (populus), the definition goes, and there is no people properly conceived ‘unless it’s bound by agreement in law’ (nisi qui consensu iuris continetur).Footnote ⁶² The people, as Cicero defines them, have to be associated (sociatus) through an agreement about ius, otherwise there is no people and without a people in this sense there is no state.

Here again the legal connotations are crucial: as Malcolm Schofield has recently made clear, Cicero, when writing about the three good, or at least tolerable, simple constitutional forms (kingship, aristocracy, democracy), believed that ‘the shortfall in every case was one of justice’.Footnote ⁶³ How can this be, given that the cities exhibiting the good simple forms were ruled by rulers that are said, explicitly, to have been ‘most just’? Because the justice rests in the rulers and not in the constitutional order as a whole — because it is guaranteed by virtue, not institutions. How, Malcolm Schofield recently asked, is the consensus iuris achieved? ‘It will be generated, Cicero seems to suggest, by the guarantee of justice that consists in law. … At any rate, it is law as constitutional guarantee of justice’.Footnote ⁶⁴

The consensus by which the people are said to be associated (sociatus) is the kind of consent that creates the contract of societas, or partnership. Partnership is a technical legal term, societas being the result of a consensual good faith contract concluded with a view to accomplish a common purpose — often commercial — with attendant rights and duties among the partners. Partnerships were not entities distinct from its members, but simply were those members, governed by their contractual relations with each other and by the law of partnership (ius societatis) itself.Footnote ⁶⁵ This underlying law for Cicero is the law of nature.Footnote ⁶⁶ Schofield convincingly suggests that ‘it is through the concept of societas as “partnership” that Cicero conveys the constitutional character of the populus to which a Ciceronian res publica belongs’.Footnote ⁶⁷ The citizens or partners achieve consensus ‘because they have access to justice’ and ‘can exercise rights’.Footnote ⁶⁸ Societas thus provides the ‘legal underpinning’ of Cicero’s definition of the state and indicates that for Cicero, justice as virtue is not the real deal: ‘justice cannot be assured without law’.Footnote ⁶⁹

Only the properly balanced constitution can be called just — and now justice, with intended paradoxical effect, no longer means the character trait of the just person or the Stoic sage, but an institutionalised legal order.Footnote ⁷⁰ As Zetzel puts it, ‘the idea of natural standards of morality’ is expressed ‘in terms not of virtus, but of law’.Footnote ⁷¹ Virtue remains relevant, but diminished and far less ambitious: Cicero famously in De re publica introduces a somewhat mysterious figure, the rector rei publicae, who is supposed to solve the problems that saddle the Republic. Jean-Louis Ferrary in an important and influential contribution interpreted Cicero’s rector as a figure of superior virtue,Footnote ⁷² but the function of the rector is, as Andrew Lintott puts it, ‘to pronounce on the principles of the res publica’.Footnote ⁷³ We must not forget that the rector is not mentioned in the De legibus at all. Lintott in my view gets closer to the truth when he interprets Cicero’s rector not as a miraculously virtuous citizen, but rather as being ‘present in the De Legibus as the central figure in the dialogue, Marcus Cicero himself’.Footnote ⁷⁴ This turns the rector from a kind of philosopher-king into a mere lawyer-statesman. Indeed, the virtue required by Cicero of those ideally running the state is very modest: magistrates should be virtuous in the sense of being very knowledgeable in the ‘principles of the res publica’, namely in the fundamental law (ius) underlying the stateFootnote ⁷⁵ — virtue is reduced to knowing the legal foundations of the state. Note, once again, that Cicero’s rector is described with technical legal terminology as a quasi tutor et procurator (Rep. 2.51), that is to say a guardian or agent with fiduciary duties vis-à-vis the principal, the Roman people.

VIII The second reason for downgrading virtue: the new Academy

The second, perhaps even more fundamental reason for Cicero’s downgrading of virtue vis-à-vis the legal order of the state is his philosophical outlook. The fundamental difficulty is well known and arises from the fact that Cicero is, on the one hand, an avowed adherent of the philosophical school of the new Academy, i.e. Plato’s Academy after Arcesilaus (315–240) had given it a sceptical tilt, who defends an undogmatic approach to getting things right. On the other hand, in his political philosophy, Cicero can be found advocating a dogmatic theory of natural law, which is defended against sceptical attacks. In the research literature, attempts have been made to resolve this tension either by interpreting Cicero’s De re publica and De legibus as testimony to his conversion to natural law dogmatism (with his De finibus bonorum et malorum representing another conversion back to scepticism), or, alternatively, by reading Cicero as a constant sceptic who in his works on natural law (Rep. and Leg.) adheres to a kind of crypto-scepticism.Footnote ⁷⁶

In his dialogue on the best conception of the highest good, the De finibus bonorum et malorum, Cicero deals with the various candidates for the highest good put forward by the Hellenistic schools in an aporetic way, leaving the reader with a sense that on this fundamental issue, decisive arguments have not been found, at least not yet — as Raphael Woolf puts it, the arguments of the last book present us with a kind of ‘pluralism’, which seems to be the point. ‘Final assessment’ is left to the readers.Footnote ⁷⁷ This has led some interpreters to think, with Charles Brittain, that Cicero in the De finibus ends up with a radical, unmitigated scepticism, which leaves no position standing as more plausible than any other.Footnote ⁷⁸

Vowing to track the truth — Cicero is not a truth-sceptic — via whatever presents itself with the highest degree of plausibility (the probabile, or veri simile), Cicero can remain in a condition of indecisiveness when it comes to the best view of the summum bonum, while at the same time being able to put forward, as the most probable and best defended outlook in political theory, a theory of the just state based on a realist doctrine of natural law. This doctrine of natural law, it seems, Cicero is famously willing to defend, in De re publica, even against arguments provided by his famous fellow Academic, Carneades (214–129/8), arguments that have been convincingly reconstructed by James Zetzel.Footnote ⁷⁹ Natural law, it would seem, can be defended as highly plausible and thus ‘either is true or comes as close as possible to the truth’.Footnote ⁸⁰

At first, this does not seem promising: as Woolf writes, ‘the notion of plausibility is, logically, tied to the notion of truth’, so how can the sceptic approach truth without having a prior ‘conception of what would count as attaining’ it?Footnote ⁸¹ However, Woolf thinks that Cicero has an answer, namely ‘rather than plausibility being dependent on truth, we might build a notion of truth upon that of unimpeded plausibility’, meaning that in the case of natural law, the arguments put forward in favour of it have not been defeated and can therefore have a very plausible claim to be true. This allows Cicero to move towards an almost dogmatic-sounding ‘notion of truth by utilizing the condition that there is nothing opposing an initial impression that things are a certain way’,Footnote ⁸² even after sifting through mountains of arguments or evidence. The method is very much inspired by Carneades, whose importance for Cicero across his works has recently been demonstrated by Ana Kotarcic.Footnote ⁸³ This method permits Cicero to increase ‘the likelihood of correctness’, without ‘eliminating the possibility of error’.Footnote ⁸⁴ Looked at this way, Cicero does not think that any of the Hellenistic schools has been able to show with a high likelihood of correctness that it is in possession of the correct conception of the highest good, but he does think, on the other hand, that there is a conception of natural law — that put forward in De re publica, De legibus and De officiis — which has unimpeded plausibility and is thus very likely true.

This provides an answer to the famous puzzle which a passage in the De legibus (Leg. 1.39) raises: here Cicero can be found urging his own school, the new Academy, to ‘be silent’ while he expounds on the legal foundations of the just state. In this passage, Cicero dismisses both fellow Academics and Epicurean approaches, seeking to appease and silence the sceptics without debate. But how can he want his fellow Academics to keep quiet, whose doubts one assumes he shares? On the one hand, Cicero might do this because the ‘idea of natural law is precisely the idea that there is a universal set of normative principles of equal applicability in all contexts. If this idea is correct, then there is indeed no room for divergence of opinion about what justice is’.Footnote ⁸⁵ But of course, the very silencing of the sceptics ‘reminds us that … there are competing and critical opinions’.Footnote ⁸⁶ The most plausible explanation is that Cicero had already provided a lengthy argument, in book three of his De re publica, in favour of the existence of natural law, so that he believed himself entitled to proceed, in De legibus, on the basis of the unimpeded plausibility of that previous argument. An interesting additional reason is that he thought that the argument for a legal foundation of the state was entirely independent of the argument for the highest good: ‘disagreement about the greatest good and evil has nothing to do with [the legal foundation of the state]’.Footnote ⁸⁷ The transformation is thereby complete, and justice as a virtue severed from the foundations of the just state.

IX Conclusion

For quite some time scholarly interest in Roman political ideas has been driven by a fascination with republicanism, mostly because it was seen as a paradigmatic, historically influential model for non-monarchical, more or less popular, rule, for a political order based on virtue, a concern for the common good and a specifically republican, or ‘neo-Roman’, brand of political liberty.Footnote ⁸⁸ Recent research has shed some doubt on the usefulness of the category: as we have seen, the concern with virtue might not have been as prominent as previously assumed, nor were republican ideas always necessarily in opposition to monarchy. Nostalgic attempts at rescuing virtue as a foundation of political order might, as Gabriele Pedullà has written in answer to James Hankins’s brilliant historical recovery and spirited defence of ‘virtue politics’, be misguided. If, Pedullà asks, ‘the humanists’ program failed so many times, why should we reclaim its legacy now?’Footnote ⁸⁹ Given what Michael Hawley, in line with the far-reaching qualifications to ‘republicanism’ made by recent scholarship, calls ‘Cicero’s liberal legacy’, more research into the huge influence of Cicero, from the Renaissance onward, is as warranted as it is promising.

Similarly, this new wave of scholarship has somewhat undermined the notion that a specifically Roman conception of political liberty, one built on the idea that liberty requires republican government, is the most prominent conception of liberty in evidence among Roman authors. As Dan Edelstein and I argue in a recent contribution, the most salient Roman conception of liberty frames it, not in terms of republican participation, but as ‘legal liberty’, resting on the rule of law and a guarantee of equal rights, especially due process.Footnote ⁹⁰ This problem — the difference, later made famous by Benjamin Constant and Isaiah Berlin, between the locus of sovereignty and its reach — was already obvious to many early modern commentators, such as Montesquieu, who formulated it with precision: those who think that liberty can only be found in republics as opposed to monarchies, Montesquieu wrote, ‘confounded’ the ‘power of the people … with their liberty’.Footnote ⁹¹ The differentiation introduced by recent research has thus interestingly complicated the intellectual history of republicanism and liberty; going forward, additional attention to technical Roman juridical language and the legal background of Cicero’s political theory, as suggested above, will likely be very fruitful.

One of the most important questions raised by recent scholarship is that of the distance between Greek and Roman political thought and of the relative importance of virtue and institutions. Another, more substantive issue of great consequence is the one Michael Hawley finds inchoately in Cicero: the tension between a voluntarist conception of justice, expressed in the idiom of popular sovereignty, and an objectivist one, expressed as natural law. Populism in our own time is often portrayed as a desire for an unconstrained exercise of popular sovereignty, which lends topicality to the question of whether there are more fundamental norms of justice than those produced by the popular will. Yet another crucial matter is that raised by Jed Atkins in The Christian Origins of Tolerance, where he puts forward a new genealogy of religious toleration that interprets the North African Christian writers of the later Roman empire from Tertullian to Augustine as having deployed earlier accounts of unjust domination to argue for religious pluralism that could accommodate minority religious groups.Footnote ⁹² Atkins’s original account discounts pagan arguments for toleration, although important early modern thinkers of toleration such as Pierre Bayle, David Hume or Conyers Middleton seem to have made use of Cicero’s De natura deorum and De finibus first and foremost.Footnote ⁹³ All of these issues remain very much alive, in political life no less than in scholarship, where the interest in Roman ideas and institutions shows no sign of cresting and will likely remain relevant to classicists, historians and social scientists alike.