MARCUS:
‘With Jupiter the Muse begins . . .’ as I said at the opening of my version of Aratus’ poem.
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QUINTUS:
What’s the point of that?
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MARCUS:
Because I too must now begin this enterprise with Jupiter and the other deathless gods.
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QUINTUS:
Yes, Marcus. That’s very appropriate, and it’s what you ought to do.
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MARCUS:
Well then, before we come to individual laws, let us look once more at the significance and nature of law. Since everything we say must be guided by that concept, we have to ensure that we don’t occasionally go astray through a misuse of language and forget the importance of reason, on which our laws must be founded.
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QUINTUS:
Yes, that seems the right way of developing your thesis.
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MARCUS:
I note, then, that according to the opinion of the best authorities
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law was not thought up by the intelligence of human beings, nor is it some kind of resolution passed by communities, but rather an eternal force
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which rules the world by the wisdom of its commands and prohibitions. In their judgement, that original and final law is the intelligence of God, who ordains or forbids everything by reason. Hence that law which the gods have given to the human race is rightly praised, for it represents the reason and intelligence of a wise man directed to issuing commands and prohibitions.
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QUINTUS: YOU
have touched on that subject on a number of previous occasions. But before you come to the laws of human communities, would you please explain the significance of that divine law. That will save us from being swept along and dragged by the tide of custom into the manner of everyday speech.
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MARCUS:
Since our childhood, Quintus, we have been taught to call ‘If [
plaintiff
] summon [
defendant
] to court’,
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and other things of that kind, laws. But one must understand that this and other orders and prohibitions issued by communities have the power of encouraging people to right actions and deterring them from wrongdoing. That power is not only older than the existence of communities and states; it is coeval with that god who watches over and rules heaven and earth. The divine mind cannot be without reason, and divine reason must have this power to decide on good and evil actions. Even though it was nowhere laid down that one man should stand on the bridge against the whole of the enemy’s army and should order the bridge to be cut down behind him, we will continue to think that the famous Codes performed that great deed according to the commands and dictates of bravery. And even if in the reign of Lucius Tarquinius there was no written law at Rome against acts of rape, nonetheless Sextus Tarquinius contravened that eternal law in violating Lucretia the daughter of Tricipitinus. For reason existed—reason derived from the nature of the universe, impelling people to right actions and restraining them from wrong. That reason did not first become law when it was written down, but rather when it came into being. And it came into being at the same time as the divine mind. Therefore the authentic original law, whose function is to command and forbid, is the right reason of Jupiter, Lord of all.
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QUINTUS:
I agree, Marcus, that what is right and true is also n eternal, and does not come into force or lapse with the letters in which enactments are written down.
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MARCUS:
Well then, as the divine mind is the highest law, so, in the case of a human being, when reason is fully developed, that is law; and it
is
fully developed in the mind of the wise man. Those laws, however, which have been formulated in various terms to meet the temporary needs of communities, enjoy the name of laws thanks to popular approval rather than actual fact. We are taught that every law (or at least those which are properly entitled to the name) is praiseworthy by arguments such as these: it is agreed, of course, that laws were devised to ensure the safety of citizens, the security of states, and the peaceful happy life of human beings; and that those who first passed such enactments showed their communities that they meant to frame and enact measures which, when accepted and adopted, would allow them to live happy and honourable lives; provisions composed and endorsed in this way would, of course, be given the name of laws. From this it is reasonable to infer that those who framed harmful and unjust rules for their communities, acting in a way quite contrary to their claims and promises, introduced measures which were anything but laws. So when it comes to interpreting the word, it is clear that inherent in the very name of law is the sense and idea of choosing
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what is just and right.
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So I ask you, Quintus, as those gentlemen
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are wont to do: if 12 a state lacks a certain element, and if precisely because of that lack it does not deserve to be called a state, is that element to be regarded as a good thing?
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QUINTUS:
Yes, a very good thing.
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MARCUS:
And if a state lacks law, does it deserve to lose the name of state?
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QUINTUS:
It certainly does.
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MARCUS:
So law must be reckoned a good thing.
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QUINTUS:
I quite agree.
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MARCUS:
What of the fact that many harmful and pernicious measures are passed in human communities—measures which come no closer to the name of laws than if a gang of criminals agreed to make some rules? If ignorant unqualified people prescribe a lethal, instead of a healing, treatment, that treatment cannot properly be called ‘medical’. In a community a law of just any kind will not be a law, even if the people (in spite of its harmful character) have accepted it. Therefore law means drawing a distinction between just and unjust, formulated in accordance with that most ancient and most important of all things—nature; by her, human laws are guided in punishing the wicked and defending and protecting the good.
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QUINTUS:
I quite understand. I now think that no other kind should be given the status or even the name of law.
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MARCUS:
So you think that the laws of Titius and Apuleius were really non-laws?
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QUINTUS:
Quite. And I think the same applies to those of Livius.
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MARCUS:
Right—especially as they were rescinded by the Senate in one brief phrase without any waste of time. But the law whose dynamic nature I have explained cannot be rescinded or repealed.
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QUINTUS
: So you, I suppose, will introduce laws of a kind that can never be repealed.
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MARCUS:
Certainly—provided they are accepted by the two of you! But I think I must follow the precedent of Plato, that most learned man and most weighty of thinkers. He first wrote about the state and later added a separate work about the laws. Before setting out the legal code itself, I shall say some words in praise of it. I notice that Zaleucus and Charondas did the same when they framed laws for their states, not just for the sake of interest and pleasure, but for the benefit of their communities. Obviously Plato was copying them when he maintained that this, too, was a property of law, that it should obtain a measure of consent
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instead of imposing everything by threats of violence.
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QUINTUS:
What about the fact that Timaeus denies that your 15 Zaleucus ever existed?
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MARCUS:
But Theophrastus says he did exist; and he, in my view, is just as good an authority (many consider him better). Why our own fellow-citizens, the Locrians, who are my clients, cherish his memory. But whether he existed or not doesn’t matter.
I
’m talking about tradition.
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So the citizens should first of all be convinced of this, that the gods are lords and masters of everything; that what is done is done by their decision and authority; that they are, moreover, great benefactors of mankind and observe what kind of person everyone is—his actions and misdemeanours, his attitude and devotion to religious duties—and take note of the pious and the impious. Minds imbued with these facts will surely not deviate from true and wholesome ideas. What can be more certain than this, that no one should be so stupid and so arrogant as to believe that reason and intelligence are present in him but not in the heavens and the world? Or that those things which are barely understood by the highest intellectual reasoning are kept in motion without any intelligence at all? As for the person who is not impelled to give thanks for the procession of the stars,
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the alternation of day and night, the regular succession of the seasons, and the fruits which are produced for our enjoyment—how can such a person be counted as human at all? Since everything that possesses intelligence is superior to what lacks intelligence, and since it would be impious to claim that anything was superior to universal nature, it has to be admitted
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that universal nature possesses intelligence. Who would deny that these ideas were useful, bearing in mind how many contracts are strengthened by the swearing of oaths, how valuable religious scruples are for guaranteeing treaties, how many people are restrained from crime by the fear of divine retribution, and how sacred a thing a partnership of citizens is when the immortal gods are admitted to that company as judges or witnesses?
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There you are. That is what Plato calls the preamble to the legal code.
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QUINTUS:
Thank you for presenting it, Marcus. I am very pleased that you are concerned with different issues and different ideas from Plato’s. What you said earlier was quite unlike his approach, and the same is true of this introduction about the gods. As far as I can see, the only thing you imitate is his literary style.
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MARCUS:
Wish
to imitate, perhaps. For no one is, or ever will be, able to imitate that. It is very easy to render the ideas; I would do that if I were not determined to be myself. But what challenge is there in presenting the same thoughts in an almost literal translation?
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QUINTUS:
I do agree. I would rather you remained yourself, as you’ve just said. But now, if you will, please set out those laws about religion.
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