Greece, Rome, and the Bill of Rights (6 page)

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Authors: Susan Ford Wiltshire

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incorporeal spirit but a set of material impulses based on Reason. It differs from the human will not in kind but in degree.

52

For Cicero the word
natura
either alone or in phrases such as
ius naturale, ius naturae, lex naturae
refers sometimes to a divinely ordained universal order, sometimes to what D. H. Van Zyl calls ''those half-legal, half-ethical rules which express the principles of human justice,"
53
because they have to do with how human beings live with one another in communities and how they pay respect to the gods.
In the
De legibus
, Cicero says that law is the highest reason inherent within nature, and that the same reason, when it is confirmed and established in the mind of men, is law.
54
Chaim Wirszubski argues that if Cicero actually believed that his proposed code embodied natural law, he was naive. "But even if naive," Wirszubski continues, "his assertion is in the highest degree significant, because it means that in Cicero's opinion the fundamental laws of Rome ought to be unalterable, that is to say, the fundamental laws,
i.e.
the constitution, ought to be above the ordinary legislative power."
55
Cicero observed from the political turmoil of his own and the preceding era that positive laws alone could not ensure the tranquillity of the state and the well-being of its citizens. By postulating a moral basis to law, he hoped to mantle law with immunity to the whims of the people and the vicissitudes of the times. He had argued in
Pro Cluentio
146 that we are slaves of the law so that we may be free:
legum idcirco omnes servi sumus ut liberi esse possimus
. If we are to be slaves of law, then the law must be supremely good.
Cicero is rightly considered the father of natural law in terms of its impact on the West through Roman law. According to Paul MacKendrick, Cicero fixed in our political theory these seminal ideas: that the law is the standard of justice; that there is a necessary connection between power and responsibility; that law rises out of community traditions in an organic manner; that power resides in the people; and that there is an intimate connection between the rule of law and high moral character. In

 

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all these aspects Cicero affirms the priority of ethics. MacKendrick concludes that Cicero, like Pericles and Plato but unlike the modern pragmatists, regarded ethics as more important than economics, even if he did stress the duty of the
princeps
to protect private property.

56
In this way, too, Cicero's debt to Stoicism was profound.

Rights and Roman Law
The achievement of Roman law, both as a practical system and as an abstract theory identified with natural law, brought an advance also in the idea of individual rights, but only in a preliminary way.
The development of the
ius gentium
expanded the idea of law beyond the immediate kinship or city, thereby loosening the power of the
corpus
or immediate body or corporation to determine the definition of individuals. Still, the
ius gentium
arose out of Roman positive law, and in that law we do not see a place for the individual as a repository of subjective rights. H. F. Jolowicz considers Henry Maine's thesis that the Roman system had no conception of rights at all
57
to be an exaggeration, but he concedes that among the Romans it had nothing like its modem importance.
58
More precisely, what we do not see anywhere in the
Corpus iuris civilis
is an expression of the belief that natural law is superior to positive law. This means that if Antigone had been a Roman rather than a Greek when she claimed to be obeying the higher or unwritten laws,
59
she would have been incomprehensible. For Cicero and the Romans generally, positive Roman law was coequal with natural "higher" law, and thus natural law could not be invoked to overrule positive laws.
The Roman conception of law, then, is anything but revolutionary. It contains no vindication of the "rights of man" but is rather a reflection of existing laws. It was never meant to give sanction to any idea that was not already in existence. As d'Entrèves concludes: "We must indeed divest ourselves, in order to understand the Roman conception of natural law, not only of the modern concep-

 

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tion of natural rights, but of the notion of the subordination of positive to natural law with which later ages have made us familiar."

60

The most obvious test case for this is the issue of slavery, the one institution common to the Greeks and Romans in antiquity and one always reckoned within the
ius gentium
. Slavery was antithetical to natural law and to every Stoic notion of equality. In the
De legibus
Cicero urges a "single definition" for human beings: "However we may define man, a single definition will apply to all.... For those creatures who have received the gift of reason have also received right reason, and therefore they have also received the gift of Law, which is right reason applied to command and prohibition. And if they have received law, they have received Justice also."
61
We soon see, however, that a single definition does
not
apply. Slavery is perfectly legal because it is the way things are. It is the one glaring discrepancy between natural law doctrine and the
ius gentium
.
62
The division of "how things are in nature" (
physikon
) and "how they are in custom or law" goes back to Aristotle,
63
but Jolowicz sees the slavery problem as evidence of the fact that when the Romans said "natural law," they really meant ''Roman law." For example, although all states had procedures for the manumission of slaves, rules about it differed greatly from state to state. Whenever a stipulation concerning manumission is stated, the particular Roman institution is meant, and the rules of other states on the subject do not matter at all. In practice this was the meaning of
ius gentium
for Roman lawyers. The rest was "philosophical ornament."
64
For the Romans, a "natural person" was one who possessed legal rights and capacities. Apart from criminal law, Roman slaves were not persons because they were incapable of rights and duties and because they themselves were the objects of ownership and other proprietary rights. Their status was absolute; it did not depend on being owned by a master, and there could be an ownerless slave just as there could be an ownerless animal.
While slaves had no rights, there were other groups

 

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completely or partially prevented from the full possession of or exercise of rights. These included women, young people, the mentally ill, and the prodigal.

65
Children acquired legal personality as soon as they were born, but in order to count as born they had to have lived for at least a moment outside of the womb. According to the
Digest
, an unborn child was not a human being.
66

The Roman term
obligatio
referred to a personal right, but only as a constraint to cause a person to do something or leave something undone in the interest of someone else. Mostly this had to do with matters of pecuniary value and with patrimonies. As J. Declareuil sees it, these constraintswhether positive or negativeprimarily reveal a jurisprudence that tended to reduce legal relations to an economic plane.
67
Thus rights in Roman law refers primarily to
res
, to "things." A thing can be a physical object or a debt one is owed, but both property and debts due have in common that they are assets of economic value. When Gaius and Justinian speak of the law of things, they are referring to the part of the law that governs the formation, exchange, and use of economic assets.
68
Geoffrey Samuel locates the starting point of the idea of subjective rights in Roman laws of property. He stresses that the history of "right" is complex because it follows more than one philosophical line. One strand of the idea of "natural right" has to do with property and ownership, while the other concerns the more abstract moral basis for constitutional theory. This latter line places more emphasis on natural law,
ius
, justice, and
dominium
as universal ideals.
69
In part this is an epistemological problem, because the word
ius
or
nomos
meant very different things, for example, to Aristotle, Aquinas, and Locke. For Aristotle, the law was a "thing" inevitably intertwined with the polis or state. For Aquinas,
ius
was objective juridical connection. For Locke,
ius
was subject to the positive rules of property law. "Thus to compare, even unhistorically," says Samuel, "the concept of a right, or its correlative, in the works of Locke and Aquinas would be to compare two quite distinct structures of legal epistemology."
70

 

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Another way to get at the problem, suggests Samuel, is to locate the difference between real rights and natural rights in private and public law, respectively. The problem with this strategy, however, is that the division between public and private law did not have much practical meaning until after the end of the medieval period.
Samuel thus posits two historical stages. The first stage of legal "rights" has to do almost entirely with physical property, which was what determined an individual's sovereignty within society. The only true "subjective right" in private law is located in Roman laws of property, that is, between persons and things. The second historical stage, the "inductive," was concerned with moving away from the relationship between subject and property and toward the relationship between subject and subject. The third or "deductive'' historical stage in the process culminates in such claims as "I have a right to vote" or ''I have a right to free speech."
The key to understanding modern subjective rights lies in its firm foundation in Roman "black letter" law, that is, in the positive legal details of property rules. From that beginning the evolution of rights ultimately reached the third stage, in which subjective rights transcend the limitations in the
Institutes
to become a means of understanding human society as a whole, what Samuel calls "a metalegal concept" capable of validating not only law but also morality and politics.

71

The fundamental question to which we return, however, is whether at any period in the Roman scheme the individual had any absolute value simply by virtue of being a human being. The answer seems to be no. While in Greek philosophy the law of nature can be seen as the individual's best defense against the law, in Rome the emphasis was on the framing of law itself. That meant that Roman law necessarily would be concerned with the public good rather than the private good of individuals. Surely the public good was seen as protective also of the private good in a sort of "trickle down" effect, but the status of individuals is nevertheless subordinate to the law.
72

 

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Our great debt to the Romans is their belief in the rule of law. This belief embodies the persuasion that reason rather than force is sufficient for dimming human differences and for enabling us to live together without all being the same. In addition, Roman jurisprudence soughtunder the influence of natural lawto approximate what was "always just and good,"
semper aequum et bonum
.
While Roman law contains only the seeds of a theory of individual rights, there could be no such rights at all apart from a prior commitment to the rule of law. That is what the Romans confirmed for the world, dignified and ameliorated by the humane claims of Stoicism.
A belief that individuals are endowed by nature with certain unalienable rights still lay far in the future. In the meantime, the history of the idea of rights was to take a dramatic turn in the Middle Ages.

 

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