Originalism is a form of legal positivism and as such is devoid of moral force, except as a covert method of subverting a dominant left-liberal tradition.
Cicero's Fragile Trinity
The fame of Roman orator Marcus Tullius Cicero was never definitively extinguished over the centuries. But reaching its apogee in the 18th century, it was assailed in the 19th by classicists such as Theodor Mommsen, who considered the Roman a “statesman without insight, opinion or intent…” who “figured one after the other as a democrat, an aristocrat, and a tool of the monarchs, and never was anything more than a shortsighted egoist.” In the 20th century, as Europe prepared to wage the Second World War, the historian Ronald Syme castigated Cicero for squandering valuable time away from Rome following the assassination of Caesar. When he finally did elect to return in the autumn, Syme writes, he brought “not peace but aggravation of discord and impulsion to the most irrational of all civil wars.” Cicero the statesman seemed almost fated to the “faintly ridiculous” portrayal in the HBO series Rome: garrulous, vacillating, weak.
Not all accounts were unsympathetic, however. He found eminently capable and fair biographers in Elizabeth Rawson, R. E. Smith, and David Stockton in the latter half of the 20th century. In our century, his life and times have been turned into a gripping trilogy in the hands of Robert Harris. And his statesmanship, so maligned by Mommsen and Syme, earns him praise in Daniel J. Mahoney’s latest book The Statesman as Thinker.
The reputation of great statesmen is never constant for all time. Their greatness consists in the difficult choices they made in ambiguous circumstances that hardly permit of an unequivocally good decision. Among the statesmen of antiquity, Cicero’s fame is perhaps even more elastic since we are blessed with a cornucopia of his writings, both public and private, showing the man in all of his glory and imperfection.
If Cicero’s reputation as a statesman has received a more compassionate hearing in recent decades, recognition of his importance as a philosopher has been slower to take off. The literature is growing and a valuable contribution intercedes: Natural Law Republicanism: Cicero’s Liberal Legacy by Michael C. Hawley.
Hawley argues that Cicero’s “political philosophy rests on the pillars of popular sovereignty, republican liberty, and natural law.” He demonstrates how the tension inherent to this trinity was ignored by many readers of Cicero throughout history, such as Machiavelli, Grotius, Pufendorf, and the English republicans, before finding a resolution of sorts in the political philosophy of Locke, which formed the basis on which the Founding Fathers established the United States. An adequate understanding of the underlying principles of the US thus requires an adequate understanding of Cicero’s political philosophy.
Hawley is meticulous in the execution, and his approach enables him to respond constructively to two different schools of thought: those who posit a sharp divide between the ancients and the moderns (e.g. Benjamin Constant, Isaiah Berlin, Leo Strauss, and the Straussians) and those republican/neo-Roman scholars (e.g. J. G. A. Pocock, Quentin Skinner, Philip Pettit) who argue that liberalism and republicanism stand in opposition. The key lies in a close reading of the most important works of Cicero’s political philosophy, written during the dying days of the Roman republic: De republica, De legibus, and De officiis.
Cicero is the earliest extant philosopher who understands and defends liberty as the neo-Roman scholars do, i.e. freedom from domination or interference. He does so, however, while remaining committed to certain fundamental tenets of the liberal order, such as property rights. Such commitments flow from his understanding of the natural law, applicable to all human beings, discoverable through reason, rewarding those who obey it and punishing those who reject it. Connected to this are other assertions of universal import: humans are social by nature and the reason people form political communities is to defend their property. Thus, the impulse to protect property, far from breaking communal bonds in favor of individual privileges, strengthens our social ties by promoting interactions based on good faith. And just as individuals have property, so too is the republic itself the property of the people. In order for the people to own their republic, they must be free.
Here Hawley draws a contrast between Cicero’s philosophy and that of Plato and Aristotle, with whom he is typically grouped as an ancient. Private property is foreign to Plato’s ideal city, and while Aristotle may have deviated from his teacher in terms of the practicality of his prescriptions, his opposition is based on how such a political organization would impede citizens from practicing virtues such as liberality. If Cicero was less bothered by this, Hawley argues, it is because he differed from the Greek philosophers in his understanding of what constitutes the highest human end: individual liberty. He could not subscribe to a natural law overly restrictive of human behavior because he believed that humans have two natures: a universal human nature and also the individual’s own particular nature. Differences between human beings may result in a good life that is different for different people.
This has implications for the regime. If liberty is the greatest good, then the most virtuous do not have the right to rule the community, even if it is desirable for them to do so. The people and their rights are accorded greater importance than one might expect from an “ancient”: For all of his respect for Plato’s philosophy, Cicero does not disdain democracy’s tendency to encourage the pursuit of liberty.
But Cicero’s “liberalism,” if one may refer to it as such, is certainly a liberalism of limits. He advocates a mixed regime as a means of tempering monarchical, aristocratic, and democratic excess. But the effectiveness of a moderate regime is ensured not by institutions alone. Citizens, especially those who aspire to the senate, must possess great virtue, an education provided not by the state, but privately, as Cicero’s De officiis was for his own son. Finally, because Cicero can conceive of a law that applies to all humans, he is able, like the Stoics, to entertain the notion of a universal regime including all of mankind. In his philosophy we can detect the potential for liberal cosmopolitanism.
The fragile balance between natural law, popular sovereignty, and liberty would be exploded by Machiavelli who set the stage for many thinkers thereafter. In Hawley’s reading, Machiavelli represents “something of a dead end,” neither the pinnacle of classical republican thought nor even the starting point for modern liberalism. His preference for the people is unchecked by any natural law; the people are in a constant struggle against deceptive elites within and hostile forces without; and his beloved Rome’s bellicosity was destructive of Roman liberty. Grotius and Pufendorf would recover natural law, but without linking it to popular sovereignty. The English republicans gave preference to the latter at the expense of the former. Hobbes disregarded both in favor of an expansive and exclusively materialistic interpretation of liberty. It is not until Locke, whose obsession with Cicero was remarkable even by the standards of his time, that the Roman philosopher’s fragile trinity of natural law, popular sovereignty, and liberty would be brought back into balance.
Hawley’s reading of Locke and the Founding Fathers has many virtues, not least the fact that by taking them at their word, he does not need to bend over backwards trying to attribute influence where there is little or none (as the neo-Roman scholars do in the case of Machiavelli’s alleged importance—and Locke’s alleged insignificance—for the Founding Fathers). For a deeper look at the importance of natural law to Locke, Hawley draws our attention to a work unpublished in Locke’s lifetime (rediscovered and published only in the mid-twentieth century), Questions concerning the law of nature.
In that work, Hawley argues, Locke is able to resolve one of the ambiguities in Cicero’s thought: the Roman was a skeptic and needed to reconcile an attitude of doubt with the seemingly dogmatic claims of natural law, specifically those concerning specifically those concerning the certainty that one would be rewarded or punished accordingly if one obeyed or broke the natural law. Locke rejects the notion that certainty of rewards or punishments is a requirement—all civil laws in this case would come up short—preferring instead to rest his case on the possibility of rewards or punishments, a possibility that reason cannot disprove. Ciceronian skepticism, it turns out, is perfectly compatible with natural law. It was left to the Founding Fathers to realize a regime grounded in the Ciceronian-Lockean natural law, which demanded that very virtuous statesmanship that Cicero represents in both his words and deeds.
Ancients and Moderns?
Natural Law Republicanism asks us to look more deeply into the tensions uncovered by Cicero’s combination of liberty, popular sovereignty, and natural law. In so doing, we may arrive at a deeper appreciation for why we often assume, for example, that liberalism and democracy must go hand-in-hand, and that our reluctance to discuss natural law risks driving a wedge between the two, much as Machiavelli had done. Cicero the philosopher is as enlightening today as he has been for centuries of thinkers. Both the philosopher and the statesman deserve our attention; for in Cicero’s words and deeds we are witness to some of the virtues necessary for statesmanship: greatness of spirit tempered by justice and moderation.
Hawley’s work also implicitly asks us to reconsider the divide between ancients and moderns. Just as traces of ancient thought permeate some of the great thinkers of modernity, so too do some of the ancients, such as Cicero himself, develop ideas considered more modern. Antiquity itself was hardly uniform: “In fact, the Romans do appear far closer to us moderns than to the Greeks in outlook and circumstance.” Roman thought can stand apart from that of the Greeks and is worthy of study in its own right. As Montesquieu, also a great reader of Cicero, wrote: “One can never leave the Romans.”
Cicero is one reason why, and it is fitting that Natural Law Republicanism concludes with a brief discussion of glory. In a letter to Atticus written in 59 BC, Cicero asks his friend, “how will history pass judgment on me six hundred years hence? I am indeed much more apprehensive of that than of the petty gossip of those who are alive today.”
Don’t worry, Tully. Your legacy is secure in Michael Hawley’s hands.