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“Bringing Philosophy Down from the Heavens”: Natural Right in the Roman Law

Published online by Cambridge University Press:  05 August 2009

Michael P. Zuckert
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Extract

The treatment of the natural law in the Roman law is puzzling because the relationship between jus naturale and the two other forms of law, jus gentium and jus civile, is far from clear in the texts. Moreover, the jus naturale does not appear to have the dignity most readers expect it to have. This article attempts to sort out the relationships among the three types of jus by showing that the various classifications the jurists use are based on their perceptions of the complexities of nature as a source of right and on the attempt to work out a political embodiment of natural right.

Type
Research Article
Information
The Review of Politics , Volume 51 , Issue 1 , Winter 1989 , pp. 70 - 85
Copyright
Copyright © University of Notre Dame 1989

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References

Notes

1. Institutes I. 2; Digest I. 1. I have used the edition of the Corpus Juris Civilis, ed. Krueger, Paul and Mommsen, Theodore (Berlin: Weidmann, 1922)Google Scholar. Cf. Villey, Michel, Lecons D'Histoire de la Philosophie du Droit (Paris: Dalloz, 1962), p. 228.Google Scholar

2. D'entreves, Alessandro Passerin, Natural Law (New York: Harper & Row, 1965), pp. 24, 27.Google Scholar An example of the dismissal of those “general things” is Schulz, Fritz, Classical Roman Law(Oxford: Oxford University Press, 1951), pp. 6–7.Google Scholar Cf. also Villey, , Lemons, pp. 30–31.Google Scholar

3. Cf. Buckland, W. W., The Main Institutions of Roman Private Law (Cambridge: Cambridge University Press, 1931), pp. 19, 20, 113, 114Google Scholar; Lee, R. W., Elements of Roman Law (London: Sweet and Maxwell, Ltd., 1956), pp. 35–36Google Scholar; D'entreves, , Natural Law, pp. 24, 27.Google Scholar

4. Lee, , Elements, pp. 35–36.Google Scholar

5. D'entreves, , Natural Law, p. 24.Google Scholar

6. Cf. Ibid., pp. 19, 29.

7. Villey, , Leçons. 29–30.Google ScholarCf. D'entreves, , Natural Law, p. 31Google Scholar

8. Institutes I. 2; Digest I. 1.

9. Institutes II. l. 11.

10. On this ambiguity as the central or core problem in the Roman treatment of jus naturale. see D'entreves, , Natural Law, p. 24Google Scholar; Sigmund, Paul, Natural Law in Political Thought (Cambridge, MA: Winthrop Publishing, Inc., 1971), p. 25Google Scholar. Perhaps the following chart will aid the reader in visualizing the ambiguity discussed in the text.

11. D'entreves, , Natural Law, p. 27.Google Scholar

12. Ibid.

13. Villey, , Leçons, pp. 132, cf. 135.Google Scholar

14. Villey, , Seize Essais de Philosophie du Droit (Paris: Dalloz, 1969), p. 150.Google Scholar

15. Villey, , Leçons, p. 29.Google Scholar

16. Ibid.

17. Aristotle, Politics 1255a-b.Google Scholar

18. Institutes I. 2. pr, 2; Digest I. l.

19. Cf. Villey, , Seize Essais, pp. 149–53Google Scholar; Leçons, pp. 29–30, 183–88, 229–40.

20. Cf. Villey, , Leçons, pp. 238–40Google Scholar, where he treats such a development not as natural, but as a reflection of decadence and breakdown. Part of the problem with all discussions of subjective right in the Roman law centers on the absence of a clear and stable definition for the term. Villey himself is most aware of this problem, but the definition he offers is rather idiosyncratic and narrow, and, moreover, not consistently applied in his own discussion. Cf. Villey, , Seize Essais, pp. 142–47Google Scholar.

21. Institutes I. 1. pr. Cf. Villey's effort, only partially successful, to interpret this definition in accord with his overall reading. Seize Essais, pp. 148–52; Leçons, pp. 232–36.

22. Such at least was the opinion of most scholars of previous generations, and such I believe is what the text supports. E.g., Lee, , Elements, p. 107Google Scholar; Buckland, , Main Institutions, p. 143.Google Scholar

23. Institutes II. 2. 2.

24. Villey, , Seize Essais, pp. 149–52Google Scholar; Leçons, pp. 183–88, 229–36

25. Institutes II. 4. pr; 5. 3; Lee, , Elements, p. 166.Google Scholar For further discussion of this issue, one must consult the debate between Villey and Pugliese. (References in Villey, , Leçons, p. 230.Google Scholar) (Cf. also the confused account in Richard, Tuck, Natural Rights Theories [Cambridge: Cambridge University Press, 1929], chap. 1.Google Scholar) Villey's reply to Pugliese's arguments, which are similar to mine in the text, is not wholly persuasive, for it rests on the texts’ failure to attribute to the dominus jura which it attributes to usufructuries and other “rights-holders.” For example, jus utendi, right of using, is not attributed to the “full proprietor,” even though he, withoutany doubt has the power to use and enjoy his property (Lemons, p. 231). Thus, Villeyconcludes, the jura are surely not powers. But he fails to consider the alternativeexplanation for this usage — that jus is used to describe or establish, among otherthings, the powers of these partial rights-holders, but not those of the full rights-holder, the dominus.

26. Villey, , in some of his later essays, actually hedges a bit on his claim. In some places he limits himself to the claims that subjective right is “negligible,” not well or separately developed, and not central. E.g., Lecons, pp. 229–36.Google Scholar

27. Hobbes, Leviathan, chap. 14; Thomas Aquinas, Summa Theologia II-II Q57 Al. Cf. Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1982). pp. 209–10, 228.Google Scholar

28. Institutes I. 2. pr; cf. Digest I. 1. 1.

29. Cicero Laws I. 2. For a brief account of the Stoic position, see Sigmund, , Natural Law, pp. 20–26Google Scholar, and Holton, James E., “Cicero” in History of Political Philosophy, ed. Strauss, Leo and Cropsey, Joseph, 2nd ed. (Chicago: University of Chicago Press, 1963), pp. 130–50.Google Scholar

30. Institutes I. 2. pr.

31. Cf. D’entreves, , Natural Law, pp. 31–32.Google Scholar

32. Digest I. 1. 1. 4.

33. Institutes L. 2. 2.

34. Cf. D’entreves, , Natural Law, p. 30.Google Scholar

35. Cf. Institutes I. 3. 1; Digest I. 1. 4, 5.

36. A representative expression of this older view, ultimately traceable to Maitland, may be found in Barrow, R. H., The Romans (Harmondsworth: Penguin Books, 1975).Google Scholar

37. Sigmund, , Natural Law, pp. 24–25;Google ScholarSchulz, Fritz, Geschichte der Römischen Rechts- Wissenschaft (Weimer: Hermann Bohlaus Nachfolger, 1961), p. 88.Google ScholarAristode, Rhetoric 1368b–1375b.Google Scholar

38. Cf. Strauss, Leo, Natural Right and History (Chicago: University of Chicago Press, 1954), chap. 3.Google Scholar

39. Cf. Cicero Republic III. v-xx. for the Carneadean philosophic version of this position.

40. Cf. Lee, , Elements, p. 35.Google Scholar

41. Cicero, tusculan Disputations. Cf. Zuckert, Michael P., “Rationalism and Political Responsibility,” Polity (1984): 271–97.Google Scholar

42. Buckland, , Main Institutions, p. 14;Google ScholarLee, , Elements, p. 16.Google Scholar

43. Villey, , Leçons, pp. 20, 30–32;Google Scholar cf. Schulz, , Geschichte, pp. 84–91Google Scholar

44. Digest I. 1. 1. 1. Nonetheless, Villey probably overstates the degree to which the jurists were free to adumbrate a philosophical legal code. They were not, after all, in the position of Socrates in the Republic or the Athenian Stranger in Plato's Laws. There existed a body of law which made up the raw materials with which they had to work. They no doubt could shape the inherited materials — given their diversity, antiquity, and the changed social and political conditions of Rome —in many ways and with more or less freedom. I would speculate that these philosophic systematizers stood toward their materials much in.the way that William Blackstone did toward his. Blackstone attempted to order and prune the common law heritage on the basis of the seventeenth and eighteenth century philosophic doctrines of natural law, natural rights and the British constitution. On Blackstone. cf. Storing, Herbert J., “William Blackstone.” in Strauss and Cropsey, History of Political Philosophy, pp. 594–606.Google Scholar

45. Villey, , Leçons, pp. 35–36, 228;Google Scholar also consider Villey, on “incorporeal things” (Leçons, pp. 175–78).Google Scholar Cf. Schulz, , Geschichte, pp. 84–91.Google Scholar

46. Digest 1. 1. 6.

47. Institutes 1. 2. 2.

48. The jurists’ treatment of the theme of nature and of natural right is thus very close to Aristotle's treatment of the same themes, although not to the version of Aristotle presented by Villey. On the coexistence of several notions of nature see Politics, bk 1. On the nature of natural right, see Ethics, bk 5. On the latter one might consider Strauss's controversial interpretation, Natural Right, chap. 4.