HISTORY OF THE PHILOSOPHY OF LAW
They are made by the gods for
The problems of authority, law and order,
obligation, and self-interest first became
central topics of speculation in the
thought of the Sophists (late fifth and
early fourth centuries BCE). The most
famous Sophists all stressed the
distinction between nature (physis ) and
convention (nomos ), and they put laws
in the latter category. They generally
attributed law to human invention and
justified obedience to law only to the
extent that it promoted one's own
advantage. Laws were artificial, arrived
at by consent; the majority of acts that
were just according to the law were
contrary to nature; the advantages laid
down by the law were chains upon
nature, but those laid down by nature
were free. In the time of the Sophists
notions of law, justice, religion, custom,
and morality were largely
undifferentiated; yet in this same period
some of the crucial problems of legal
philosophy were first formulated, and
attempts were made at a formal
definition of law. Thus, Xenophon
(Memorabilia I, 2) reported that
Alcibiades, who associated with both
Critias and Socrates, remarked to Pericles
that no one can really deserve praise
unless he knows what a law is. Pericles
replied that laws are what is approved
and enacted by the majority in assembly,
whereby they declare what ought and
what ought not to be done. He admitted
that if obedience is obtained by mere
compulsion, it is force and not law, even
though the law was enacted by the
sovereign power in the state. Xenophon
also reported an alleged conversation
between Socrates and the Sophist
Hippias in which both maintained an
identity between law, or what is lawful,
and justice, or what is right, while
admitting that laws may be changed or
annulled (ibid. IV, 4). Socrates claimed
that there are "unwritten laws," uniformly
observed in every country, which cannot
conceivably be products of human
invention.
all men, and when men transgress them,
nature penalizes the breach.
Socrates and the Sophists, as presented
in Plato's dialogues, disagreed
concerning human nature. The Sophists
conceived of man as egoistically
motivated and antisocial, whereas for
Socrates, as for Plato and Aristotle, man
was a social being with other-regarding
as well as self-regarding motives, who
finds fulfillment in social life. By contrast,
the Sophist Callicles, in Plato's Gorgias,
holds that man is no exception to the law
of nature, according to which the
stronger rules; manmade laws and social
institutions violate human nature. The
less radical Sophists, although they could
not identify law with some feature of
reality, still accepted its practical
usefulness.
Plato and Aristotle
There is hardly any problem of legal
philosophy not touched upon by Plato. He
wrote during the decline of the Greek
polis, when law and morality could
appear as mere conventions imposed by
shifting majorities in their own interest
and the harmony between the legal order
and the order of the universe could not
easily be maintained. Plato sought to
restore, as far as possible, the traditional
analogy between justice and the ordered
cosmos. Justice, or right action, cannot
be identified with mere obedience to
laws, nor can a truly moral life be
reduced to conformity with a
conventional catalog of duties. Duties
involve a knowledge of what is good for
man, and this bears an intimate relation
to human nature. The question "What is
justice?" dominates Plato's Republic.
Plato conceived of justice as that trait of
human character which coordinates and
limits to their proper spheres the various
elements of the human psyche, in order
to permit the whole man to function well.
In order to understand the operation of
justice in the human soul, Plato examined
human nature writ large, the city-state.
The state functions well when it is
governed by those who know the art of
government, and the practice of this art
requires a positive insight into the Good.
In a just society every citizen performs
the role of which he is best capable for
the good of the whole. Similarly, in the
moral economy of the individual's life,
justice prevails when reason rules and
the appetites and lower passions are
relegated to their proper spheres. A just
social order is achieved to the extent to
which reason and rational principles
govern the lives of its members.
Plato's emphasis on reason found its way
into his definition of law. Law is reasoned
thought (logismos ) embodied in the
decrees of the state (Laws 644d). Plato
rejected the view that the authority of
law rests on the mere will of the
governing power. The Laws contains a
detailed discussion of many branches of
law and is an attempt at a formulation of
a systematic code to govern the whole of
social life. In contrast with the ideal polis
of the Republic, in which there would be
little need for legislation, in the Laws
Plato accepted "law and order, which are
second best" (Laws 875d).
Aristotle
Aristotle, who discussed law in numerous
contexts, nowhere gave a formal
definition of it. He wrote variously that
law is "a sort of order, and good law is
good order" (Politics 1326a), "reason
unaffected by desire" (ibid. 1287a), and
"the mean" (ibid. 1287b). However, these
must be taken not as definitions but as
characterizations of law motivated by the
point Aristotle was making in the given
context.
Following Plato, Aristotle rejected the
Sophistic view that law is mere
convention. In a genuine communityas
distinguished from an alliance, in which
law is only a covenantthe law concerns
itself with the moral virtue of the
citizenry (Politics 1280b). Aristotle
sharply distinguished between the
constitution (politeia ) and laws (nomoi );
the constitution concerns the
organization of offices within the state,
whereas the laws are "those according to
which the officers should administer the
state, and proceed against offenders"
(ibid. 1289a). The constitution of a state
may tend to democracy, although the
laws are administered in an oligarchical
spirit and vice versa (ibid. 1292b).
Legislation should aim at the common
good of the citizens, and justicewhat is
equalshould be determined by the
standard of the common good (ibid.
1283a). Yet Aristotle recognized that the
law is often the expression of the will of a
particular class, and he stressed the role
of the middle class as a stabilizing factor.
In his discussion of the forms of
government in Book III of the Politics,
Aristotle took up the Platonic problem of
rule by the best man versus rule
according to laws. A society of equals by
its very nature excludes the arbitrary rule
of one man. In any case, even the best
man cannot dispense with the general
principles contained in laws; and legal
training helps to make better officers of
government. Furthermore,
administrators, like all men, are subject
to passion, and it is thus preferable to be
judged by the impersonal yardstick of the
laws. This in no way conflicts with the
need to change the law through
legislation when it has been found by
experience to be socially inadequate. But
not all law is the product of legislation;
customary law is in fact more important
than the written law.
Aristotle's discussion of the judicial
process foreshadows many modern
notions. Although it is better to have
written laws than to rely completely on
discretion, "some matters can be covered
by the laws and others cannot" (ibid.
1287b20). General rules are insufficient
to decide particular cases (ibid.
1286a26), although "well-drawn laws
should themselves define all the points
they possibly can and leave as few as
may be to the decision of the judges"
(Rhetoric 1354a32). Aristotle seems to
have had two considerations in mind.
First, judicial decision making is practical
it involves deliberationand as such
cannot be completely determined in
advance. Second, the resolution of
disputed issues of fact in a particular
case, on which the decision depends,
cannot be settled in advance by
legislation. This stress on the
insufficiency of general rules connects
with Aristotle's influential discussion of
equity (epieikeia ). Equity is just, "but not
legally just but a correction of legal
justice" (Nicomachean Ethics 1137b10).
Aristotle sometimes seems to suggest
that equity comes into play when there
are gaps in the law, so that it consists in
the judge's acting as the lawgiver would
act if he were present. Yet he also seems
to suggest that equity corrects the
harshness of the law when adherence to
the written law would work an injustice.
Principles of equity are thus closely
related to the unwritten universal laws
"based on nature," a "natural justice"
binding on all men, even those who have
no association or covenant with each
other. Nevertheless, what is naturally just
may vary from society to society.
The locus classicus of Aristotle's
discussion of justice is Book V of the
Nicomachean Ethics. Generically, justice
has to do with one's relations to others,
and there is a sense of "justice" that
refers to the complete moral virtue of the
member of the community in such
dealings. There is also a sense in which
"justice" refers to a particular virtue
involving the fair dealings of individuals
in matters handled by private law. Two
kinds of rights fall under this special
virtue: rights in division (where each
individual claims his fair share of goods,
honors, and so on) and rights in redress
(for wrongs done by one individual to
another, such as failure to fulfill a
contract).
Rome
stoics
The Stoics, who conceived of the
universe as a single, organic substance,
exercised a lasting influence on legal
thought. Nature, which exhibits structure
and order, and man both partake of
intelligence, or reason (logos ). An animal
is directed by a primary impulse toward
self-preservation that adapts it to its
environment. In man, reason is the
"engineer of impulse," and man's actions
may be evaluated only within the
framework of the whole of nature. The
criterion of moral action is consistency
with the all-determining law of nature
(koinos logos ). This conception of a law
of nature that is the ultimate standard of
human laws and institutions was
combined with Aristotelian and Christian
notions to form the long-standing
natural-law tradition of medieval legal
philosophy. Another important Stoic
contribution was the belief in the equality
of all men in a universal commonwealth
and a rejection of Aristotle's doctrine of
slavery.
cicero and seneca
The writings of Marcus Tullius Cicero
(10643 BCE) were important in
transmitting classical legal thought to the
medieval world. Although he was a
professional arguer of legal cases,
Cicero's philosophical treatment of law in
his De Legibus disclaims any interest in
"clients' questions" or the "law of eaves
and house-walls." His legal philosophy
was essentially Stoic; he denied that the
positive law of a community (written or
customary), even when universally
accepted, is the standard of what is just.
Nor is mere utility the standard: "Justice
is one; it binds all human society, and is
based on one law, which is right reason
applied to command and prohibition" (De
Legibus I, 15). An unjust statute is not a
true law. Law and morality are logically
connected, and only that which conforms
to the law of nature is genuine law. This
view exercised a lasting influence on
natural-law thinking and reappeared in
the thought of Thomas Aquinas.
Like Cicero, Lucius Annaeus Seneca (c. 4
BCE65 CE) aided in transmitting Stoic
notions to later thinkers. He reiterated
the conception of the equality of all men
under natural law, but perhaps more
important was his conception of a golden
age of human innocence, a prepolitical
state of nature. Legal institutions became
necessary as human nature became
corrupted.
roman law
The influence of Stoicism may be traced
in pronouncements of the Roman jurists.
It is disputed whether these were any
more than remarks designed to ornament
legal texts, but they nevertheless
influenced the thought of later ages. The
jurists distinguished three kinds of law:
jus naturale, jus gentium, and jus civile.
In practice, the last originally referred to
the law of the city of Rome, but
ultimately it was applied to any body of
laws of a given community. The jus
gentium first meant the law applied to
strangers, to whom the jus civile was not
applicable, and was later extended to
those legal practices common to all
societies. Gaius (mid-second century),
who systematized the Roman law in his
Institutes, identified the jus naturale and
jus gentium as universal principles of law
agreeable to natural reason and equity.
Thus, law was not a mere expression of
human will or institution but that which is
rationally apprehended and obeyed. The
jus gentium was not an ideal law by
which the positive law was judged but
the rational core of existing legal
institutions.
Ulpian (c. 170228) distinguished jus
naturale from jus gentium by stating that
jus naturale is not peculiar to human
beings but is taught by nature to all
animals. Thus, among animals there is an
institution similar to human marriage.
Slavery and its attendant rules are
products of the jus gentium, for by the
jus naturale all men were born free. It is
not clear, however, that Ulpian regarded
slavery as bad. To him we owe the oft-
repeated definition of justice: "the
constant wish to give each his due"
(Digest I, 1, 10). Following Celsus (c. 67
c. 130), he defined law (jus ) as "the art
of the good and the equitable" (ibid. I, 1,
1). Again, it does not seem that Ulpian
thought of the jus naturale as an ideal
law opposed to the jus civile or to the jus
gentium. It has been suggested that
behind Ulpian's thought was a conception
of a natural state antecedent to the
conditions of organized society.
The doctrines of the Roman jurists owe
their lasting influence to their
incorporation into the Corpus Juris Civilis
of Justinian (sixth century), principally in
the section called the Digest. The
compilers of Justinian's Institutes (a
section of the Corpus Juris ) seem to have
distinguished the jus naturale from the
jus gentium and seem to have regarded
the former as a set of immutable divine
laws by which the positive law may be
morally evaluated (Institutes I, 2, 11; III,
1, 11). The Corpus Juris also preserved
statements of the Roman jurists
concerning the source of the authority to
make and unmake the laws constituting
the civil law. According to a number of
these statements, this authority resides
in the consent of the people; however,
the statement that "what pleases the
prince has the force of law" (Digest I, 4,
1) was probably a more accurate view of
the facts. Justinian seems to have
combined these views theoretically in his
reference to a (nonexistent) "ancient law"
by which the Roman people transferred
all their powers to the emperor (Codex I,
17, 1, 7).
Early Middle Ages
To the legal thought of the Stoics and the
Roman philosophers and jurists the
Church Fathers added a distinctively
Christian element. The law of nature was
no longer the impersonal rationality of
the universe but was integrated into a
theology of a personal, creative deity.
The relationship among the Mosaic law,
the Gospels, and natural law emerged as
a specific problem; the notion of jus
divinum (divine law) as a distinct type of
law, along with the three recognized by
the jurists, was crystallized. The notion of
the fall of man from a state of perfection
(which may be compared with the view of
Seneca) played an important role. Thus,
according to St. Ambrose (340397) the
Mosaic lawa law of sin and death (see
Romans 8:2)was given because man
failed to obey the law of nature. The fact
that many legal institutions, such as
slavery and private property, deviate
from this ideal law does not necessarily
imply that they are unjust or illegitimate;
for the natural law is adapted to man
only in a condition of innocence.
Of the Church Fathers, St. Augustine
(354430) was perhaps the most original
and complex: Only one point in his
thought will be noted here. Cicero
maintained that nothing can be nobler
than the law of a state (De Legibus I, 14)
and that if a state has no law, it cannot
truly be considered a state (ibid. II, 12).
The law of the state must therefore
embody justice, for without justitia there
is no jus. Augustine considered this
position in The City of God, Book XIX.
According to Augustine, since Rome had
no justice, Cicero's position has the
inconvenient consequence that Rome
was no state at all. We must therefore
seek another definition of "state"
(populus ) in which justice is not an
essential element. Augustine stressed
the notion of order"a harmonious
multitude"with the suggestion that
legal order need not be moral or just.
There are passages in Augustine,
however, which seem to uphold a more
orthodox natural-law position. In any
event the terms of his discussions are
somewhat different; his main points of
contrast are divine and human law,
rather than jus naturale and jus civile.
The sources of the natural-law theories
that were to dominate Western legal
philosophy for many centuries were the
writings of the Greek and Roman
philosophers and poets, Justinian's
Corpus Juris Civilis, and the Church
Fathers. Isidore of Seville (c. 560636), an
encyclopedist and an important
transmitter of Roman thought to later
writers, concisely expressed the natural-
lawyer's ideal regarding positive law:
"Law shall be virtuous, just, possible to
nature, according to the custom of the
country, suitable to place and time,
necessary, useful; clearly expressed, lest
by its obscurity it lead to
misunderstanding; framed for no private
benefit, but for the common good"
(Etymologies V, 21).