Marcus tullius cicero



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MARCUS TULLIUS CICERO The Defense of Injustice

Marcus TULLIUS CICERO (106-43 B.C.) lived in Rome dur­ing some of the empire’s most turbulent times. He was a great writer and a legendary orator. His works, with some exceptions, have sur­vived to modem times and are often cited by rhetoricians—those who study the art of persuasion and fine writing. His letters are collected in four volumes; his books include De Amicitiae (On Friendship), De Officiis (On Duty), De Oratore (The Orator), De Senectute (On Old Age), Tusculan Disputations, On the Nature of the Gods, and many more influential texts, including some interesting poetry.

These books were written in a characteristic style that has been described as Ciceronian, a reference to his fullness of expression, his sometimes decorative language, and his rhythmic flow. His elegance inspired many imitators, including some modem writers who read him only in translation. His reliance on dialogue in his serious works connects him with Plato, whose dialogues were well known in Rome. Often, Cicero included philosophical ideas taken from his reading of Plato and Aristotle, whom he may have read in Greek.

Cicero was not just a philosopher. He was a lawyer and a politi­cian as well as one of the most eloquent of Romans during a period when political debate was conducted at a very high level in the Roman Senate. He was a fierce republican and wrote On the Republic to help foster ideas that would help maintain the Republic at a time when civil wars were threatening it. Cicero was close to Julius Caesar, who was victorious in a struggle against Pompey and others and became the equivalent of a dictator in Rome. Cicero urged Caesar to honor the republican ideals that he felt repre­sented the highest values of justice of any government in Rome. He also realized that he might be in danger if Caesar were out of office.

From On Government. Translated by Michael Grant.Cicero had spoken against Marc Antony, who came into a position of influence when Caesar was assassinated in 44 B.C. Cicero was not in the senate when Caesar was murdered, nor did he have any connections with Brutus and the conspirators, and for a short while he stayed away from Rome.

Eventually Marc Antony joined in a new triumvirate with Octa- vian, Caesar’s adopted son. Cicero had been guilty of speaking about Octavian in such a way as to seem disloyal and perhaps dan­gerous. Despite the fact that Cicero supported Octavian, and that Octavian tried to protect him against his enemies, Cicero was marked as dangerous by Marc Antony because he had condemned Marc Antony’s policies in his collection of political criticism called Philippics. Because his arguments against the triumvirate were so powerful, Cicero was captured and killed on December 7, 43 B.C. His head and hands were brought to Octavian in Rome as a sym­bolic gesture.

Cicero’s Rhetoric

The selection that follows is from pieces he wrote on the nature of the state. It begins with a dialogue between two powerful speakers. Laelius challenges Philus to argue against justice and in praise of injustice. This is a typical approach among master rhetori­cians, whose skills often permit them to argue either side of an issue with equal deftness. For many people this skill invalidates rhetoric because they see the disputants as having no fundamental interests to defend, instead behaving like lawyers who are willing to argue a case that they know is not worthy to be argued. How­ever, in this situation Cicero is clever. He realizes that in the hands of a skillful rhetorician, the case against justice will do a great deal to reveal the qualities of justice that make it most valuable to soci­ety. Philus is chosen to make this argument in part because he has a reputation for being impeccably honest, is profoundly committed to justice, and is the last person one would connect with a speech against justice. Cicero tells us as much in an effort to convince us that Philus is playing the role of devil’s advocate for injustice.

In a way perhaps designed to protect his own reputation, Philus tells us that he will argue by using the words and arguments of another important rhetorician, Cameades (c. 213-128 B.C.), who had a reputation for ridiculing “the best causes.” Cameades was a skeptic philosopher who enjoyed dismantling what appeared to be the most secure arguments just to demonstrate that there was noth­ing one could absolutely believe without examination. Cicero hopes that, as powerful as Philus’s speech may be, we will not accept his views as desirable. However, Philus makes such a remarkable case for injustice that, if we are not careful, we may end up accepting it.

Philus begins by reminding Laelius and us that justice is rare and valuable, “far more valuable than all the gold in the world” (para. 4). Once that is said, he launches into his argument for injus­tice by commenting on those people who have praised it and won­dering whether there could be such a thing as natural justice. He reasons that justice must be unnatural and a creation of govern­ment because, unlike things in nature, it is not “the same thing to all human beings” (para. 6). In paragraph 7, he surveys different societies and points out the diversity of ideas on important sub­jects. Since there is no universal view of justice, it must be con­structed by each government independently.

In paragraph 10, Philus tells us that justice has been inter­preted differently over the ages. Justice is not one static thing; it changes over time and in different places because it is not—like trees, rocks, and colors—a natural thing that is perceptible to everyone. Justice may mean obeying the laws, but which laws should a person obey? If laws came from God or from nature they would be easy to follow. Philus says, “laws are not imposed on us by nature — or by our innate sense of justice. They are imposed by the fear of being penalized. In other words, human beings are not just, by nature, at all” (para. 12).

Some lines or pages are lost between paragraphs 13 and 14, and when Philus returns to his speech he begins describing the action of governments, comparing government by men “exploiting their wealth or noble birth” with government by “the people.” He condemns the latter as a government in chaos, and in his analysis he arrives at the compromise Scipio recommends: a government with a single leader, but with the council of the nobles and with the voice of the people in evidence. This structure would balance the powers of three important groups and possibly produce justice.

In paragraph 16, Philus begins to offer us some frightening alternatives:

  1. We can perform injustice and not suffer it ourselves;

  2. We can both perform it and suffer it; or,

  3. We can neither perform it nor suffer it.

He evaluates the choices and says the best one is to perform injus­tice and get away with it without suffering it ourselves. In para­graph 17, he slyly reveals that the current policy of Rome, and by implication all empires, is to conquer lands and take them from other people. If justice were the uppermost concern, Rome would be merciful to all people, but if that were true Rome would lose its empire.

Philus contrasts what he calls wisdom with justice. Everyday wis­dom says that the empire must be preserved. But justice says that merciful behavior is right and all other behavior is wrong. Justice says people should not be conquered against their will; wisdom says that the empire cannot grow and be great unless weak people are con­quered by the strong. In paragraph 19, Philus begins to examine the choices of an individual, and in paragraph 20, he unleashes his most powerful argument against justice. He offers a hypothetical argument: “Let us imagine that there are two men, one a paragon of virtue, fair­ness, justice, and honesty, and the other an outrageous ruffian.” He asks: Which would we rather be, a good man who has been blinded, ruined, expelled, and beggared, or a bad man who receives all the world’s blessings? Philus knows which we would choose.

Then, by process of analogy, he likens the condition of the individual to the condition of the state. “No country would not rather be an unjust master than a just slave” (para. 21). Unfortu­nately, much of Philus’s speech is lost at this point, and Laelius ends the “experiment” by making some profound and direct state­ments that are designed to counter Philus’s argument.

In paragraph 22, Laelius begins by talking about “true law,” something Philus implied did not exist. Laelius defends the con­cept of a natural law that conforms to reason and is the same for everyone. “To invalidate this law is sinful,” he says. He goes on to say in the next and final paragraph that “[t]here will not be one law at Rome, and another at Athens,” by which he means that laws should be consistent from state to state. “Instead there will be one single, everlasting, immutable law, which applies to all nations and all times. The maker, and umpire, and proposer of this law will be God, the single master and ruler of us all.”

PREREADING QUESTIONS:

WHAT TO READ FOR

The following prereading questions may help you anticipate key issues in the discussion of Marcus Tullius Cicero’s “The Defense of Injustice.” Keeping them in mind during your first reading of the selection should help focus your attention.

  • Why does Philus point out the differences in the ways people in other nations practice their religions?

  • Which arguments for injustice are most persuasive?

  • Which virtues of justice seem most important in light of Philus’s argument?



The Defense of Injustice

laelius: For the purposes of argument, see if you can offer a defense of injustice!

PHILUS: What a fine cause you have handed over to me — to speak in favor of evil!

laelius: Yes, I can see what you have reason to fear. You are afraid that, if you repeat the customary arguments against justice, you might be supposed also to approve of them. Yet you yourself, I must point out, stand for old-fashioned integrity and honor to an almost unparalleled degree! And your habit of arguing on the other side—on the grounds that you find it the easiest way to arrive at the truth—is something with which we are quite familiar.

philus: All right, then. In order to humor you, I will smear myself with dirt, quite deliberately. For that is what people who are looking for gold always feel that they have to do. So we who are looking for justice, which is far more valuable than all the gold in the world, surely ought to do the same, without shrinking from any hardship whatever.

But 1 only wish that since I am now going to make use of what someone else has said, I could also use his own language! The man I am referring to is Cameades.1 For he, with his gift for sophistical disputation, was quite accustomed to making the best causes sound ridiculous! And so, after reviewing the arguments of Plato and Aris­totle in favor of justice—a subject on which the latter filled four large books2—what Cameades then proceeded to do was to refute them! From Chrysippus3 I did not expect anything substantial or impressive. He uses his own peculiar method of argument, analyz­ing everything from a purely verbal rather than a factual point of view.

These heroes acted correctly in exalting the virtue of justice, in disrepair as it was. For justice, when it exists, is the most generous and liberal of all virtues, loving itself less than it loves all the people in the world, and living for the benefit of others rather than of itself. In seating it, therefore, upon that heavenly throne, not far from wis­dom itself, those philosophers were perfectly right. But one more thing has to be pointed out. They did not, evidently, lack the desire to exalt justice. For, if they had, what would have been their reason and purpose for writing at all? Nor did they lack the ability to do so, in which, indeed, they surpassed everyone else. Yet their enthusiasm and eloquence alike were undermined by a certain weakness. For the justice into which we are inquiring is not just, something that naturally exists, but a quality that is created by those who are occu­pied in government. It cannot be merely natural, because if it was, justice and injustice would be the same thing to all human beings, like heat and cold, or bitter and sweet.

But that is not the case; on the contrary, beliefs on the subject vary enormously. If, for example, one could climb into Pacuvius’s “chariot of winged snakes”4 and drop in on many diverse nations and have a good look at them, one would find, first of all, that in Egypt, that most unchanging country of all in which the written rec­ords of the events of a vast series of centuries are preserved, a bull is considered a god—which the Egyptians call Apis. And numerous other monsters and animals of every kind are ranked among divini­ties and regarded as holy. That, to us, appears thoroughly alien. Here in Rome, on the other hand, as in Greece, splendid shrines can be seen, adorned with statues of deities in human form.

Yet the Persians have always considered that to be a blasphe­mous custom. Indeed, Xerxes I is said to have commanded that the temples of Athens should be burnt down, for this sole reason, that he considered it blasphemous to keep the gods shut up within walls, when they belong to the entire world. Indeed subsequently Philip II of Macedonia, who planned to attack the Persians, and Alexander III the Great,5 who actually did so, quoted as their pretext their determi­nation to avenge the Greek temples—which the Greeks had decided that they must never rebuild, so that later generations would always have before their eyes this visible memorial of Persian sacrilege.

Furthermore, a considerable number of peoples, unlike our­selves, have believed that the practice of human sacrifice is pious and thoroughly pleasing to the immortal gods. They include the Taurians on the coast of the Euxine Sea, King Busiris of Egypt,6 and the Gauls and the Carthaginians. Indeed, people’s life-styles are sometimes so divergent that the Cretans and Aetolians consider ban­ditry respectable. As for the Spartans, they declared, habitually, that any territory whatever that they could touch with their spears belonged to themselves! And the Athenians, too, swore oaths, in public, pronouncing that every piece of ground that produced olives or grain was their own property. The Gauls, however, consider it degrading to grow grain by manual labor. For that reason they take up arms so that they can go and reap other people’s fields. But con­sider the customs that we—who are, of course, the most just of men!—habitually follow. What we do is to tell the Gauls across the Alps that they must not plant olives and vines, because we want to increase the value of our own. That, you might say, is prudent; “just” is not the word you could apply to it. One can see, from this example, that what is sensible is not always truly wise. Consider Lycurgus.7 He invented a series of admirably wise and sensible laws. Yet he felt able to insist, all the same, that the lands of the rich should be cultivated by the poor as if they were slaves.

Moreover, if I wanted to describe the differing ideas of justice, and the divergent institutions and customs and ways of life, that have prevailed, not only in various nations of the world, but even in this single city of our own, I could show you, also, that they have not remained the same, but have been changed in a thousand differ­ent ways. Take for example Manius Manilius here, our interpreter of the law. The advice that he generally gave you about women’s lega­cies and inheritance he was a young man, before the Voconian Law8 was passed, was not at all the same advice as he would give you now. (Yet that law, I might add, was passed for the benefit of males, and is very unfair to women. For why should a woman not have money of her own? And why should a Vestal Virgin be permit­ted to have an heir, when her mother cannot? Nor can I see why, if a limit had to be set to the amount of property a woman could pos­sess, the daughter of Publius Licinius Crassus Dives Mucianus,9 pro­vided that she were her father’s only child, should be authorized by law to own a hundred million sesterces, while three million is more than my own daughter is entitled to own.)10 . . .

So laws, then, can vary considerably, and can be changed. If they had all come from God, that would not be so. For, in that case, the same laws would be applicable to all, and, besides, a man would not be bound by one law at one time of his life and by another later on. But what I ask, therefore, is this. Let us accept that it is the duty of a just and good man to obey the laws. But which laws is he to obey? All the different laws that exist?

There are difficulties here. Inconsistency, between laws, ought to be impermissible, since it is contrary to what nature demands. But the point is that laws are not imposed on us by nature—or by our innate sense of justice. They are imposed by the fear of being penal­ized. In other words, human beings are not just, by nature, at all.

Let us reject, moreover, the argument that, although laws vary, good men naturally follow the true, authentic path of justice, and not merely what is thought to be just. That argument maintains that what a good and just man does is to give everyone his due. (One problem which arises in this connection is what, if anything, we are to grant dumb animals as their due. Men of far from mediocre caliber, indeed men of powerful learning such as Pythagoras and Empedocles,11 insist that identical standards of justice apply to all living creatures, and declare that inexorable penalties await those who ill-treat animals. To do them harm, in other words, seems to them to be criminal.)12

philus: Anyone who has the power of life and death over a people is a despot—though they prefer to be known as kings, following the example of Jupiter the Best.

When however, instead, a group of men seize the state by exploiting their wealth or noble birth or some other resource, that is a political upheaval, though they call themselves conservatives. If, on the other hand, the people gain the supremacy, and the whole gov­ernment is conducted according to their wishes, a state of affairs has arisen which is hailed as liberty, but is, in fact, chaos. But when there is a situation of mutual fear, with one person or one class fearing another, then because nobody has sufficient confidence in his own strength a kind of bargain is struck between the ordinary people and the men who are powerful. The result, in that case, is the mixed form of constitution which Scipio13 recommends. Which means that weakness, not nature or good intention, is the mother of justice.

For we have to choose one of three things. We can perform injustice and not suffer it. Or we can both perform and suffer it. Or we can neither perform it nor suffer it. The most fortunate choice is the first, to perform injustice, if you can get away with it. The second best is neither to perform it nor suffer it. And the worst is to engage in an everlasting turmoil consisting of both performing it and suffering it.

Wisdom, as commonly understood, prompts us to increase our resources, to multiply our riches, to enlarge our frontiers. For the essential significance, surely, of those eulogistic words inscribed upon the monuments of our greatest generals, “he extended the boundaries of the empire,” is that he had extended them by taking territory from someone else. That, then, is the teaching of “wisdom,” that we should rule over as many subjects as possible, indulge in pleasures, hold on to power, be rulers and masters. But justice, on the other hand, demands that we should be merciful to all men, act in the interests of the entire human race, give everyone what they are entitled to, and never tamper with religious property or what belongs to the community or to private persons.

If you follow the dictates of what we call wisdom, then, you acquire wealth, power, resources, lofty status, military commands, and positions of supreme authority, whether you are a state or a pri­vate person. What we, however, are at present considering is the former of these two categories, the state, and so what is done by states assumes priority for our present purpose. True, the same stan­dards of justice apply to states and individuals alike, but the former are what we now have to consider. In particular, not to mention other nations, it is clear enough that our own Roman people, whose history Scipio traced from its beginnings in yesterday’s discussion, and whose empire is now world-wide, grew from the smallest to the greatest dimensions by wisdom, and not by justice.

When, however, one sets justice against wisdom in the way I have attempted to do here, the contrast is sometimes blurred by arguments that complicate the issue. The men who put these argu­ments forward understand very well how to argue; and their reason­ing on the subject carries all the more impressive weight because, in the course of their investigation into how to find the good man (a man who himself should be open and frank), they, like him, refrain from using underhand, crafty, or dishonest methods of argument. What these philosophers do, then, is take a closer look at the “wise” man, and put forward the view that he is good not because goodness or justice automatically, or in themselves, offer him satisfaction, but, on the contrary, because a good man’s life is free of fear, worry, anx­iety, and peril, whereas bad men always have something to feel uneasy about, and the prospects of trials and penalties are never out of their sight. No benefit or reward gained by injustice, these thinkers add, is substantial enough to counterbalance perpetual fear, or the never-ending thought that some punishment or other is not far away.14 . . .

Let us imagine that there are two men, one a paragon of virtue, fairness, justice, and honesty, and the other an outrageous ruffian. And let us suppose that their country is so misguided that it believes that the good man is an evil, villainous criminal, and that the bad man, on the other hand, is a model of honorable propriety. Then let us go on to suppose that, since this is the unanimous opinion, the good man is attacked, seized, imprisoned, blinded, convicted, chained, branded, expelled, and beggared, so that everyone feels, quite rightly, that he is the most wretched man alive. Whereas the bad man, on the other hand, is praised, courted, and loved by one and all. Every kind of public office and military command is showered upon him, as well as riches and wealth from every quarter. To sum up, then, he will have the universal reputation of being the best man in the world, who deserves everything good that fortune can give him. Now, I ask you, who could be so mad as to doubt which of the two men he would prefer to be?

The same applies to states, just as much as to individuals. No country would not rather be an unjust master than a just slave. I shall not range far ahead for the example I am going to quote. While I was consul, and you were on my council, the question of the treaty with Numantia came up before me. Everyone knew that treaties had been made already, by Quintus Pompeius and then by Gaius Hostilius Mancinus.15 Mancinus, a good man, went so far as to favor the bill which I myself had proposed in accordance with a senatorial decree, even though he was to be the sufferer. Pompeius, on the other hand, fought back strongly against an equally critical resolution directed against himself. If you are looking for self-denial, honor, and integrity, those are the qualities that Mancinus displayed. But if you want rationality, good sense, and prudence, Pompeius wins.16. .

laelius: True law is in keeping with the dictates both of reason and of nature. It applies universally to everyone. It is unchanging and eternal. Its commands are summons to duty, and its prohibitions declare that nothing wrongful must be done. As far as good men are concerned, both its commands and its prohibitions are effective; though neither have any effect on men who are bad. To attempt to invalidate this law is sinful. Nor is it possible to repeal any part of it, much less to abolish it altogether. From its obligations neither Sen­ate nor people can release us. And to explain or interpret it we need no one outside our own selves.

There will not be one law at Rome, and another at Athens. There will not be different laws now and in the future. Instead there will be one single, everlasting, immutable law, which applies to all nations and all times. The maker, and umpire, and proposer of this law will be God, the single master and ruler of us all. If a man fails to obey God, then he will be in flight from his own self, repudiating his own human nature. As a consequence, even if he escapes the normal punishment for wrongdoing, he will suffer the penalties of the gravest possible sort.








1Cameades (c. 213-128 B.C.) North African skeptic philosopher known for his teaching and public arguments. Known to the modem world through Cicero and other writers.

2The four-book commentary on justice no longer exists.

3Chrysippus (c. 280-207 B.C.) A prominent Stoic philosopher.

4Pacuvius (c. 220-130 B.C.) Cicero’s favorite tragic poet. His work is quoted frequently in Cicero’s works, but Pacuvius’s plays exist only in fragments today.

5Philip . . . Great Philip II and Alexander the Great were rulers of Greece in the fourth century B.C., and Xerxes I was ruler of Persia in the fifth century B.C.

6Busiris Legendary Egyptian king.

7Lycurgus Possibly legendary, Lycurgus was known as a lawgiver and founder of the Spartan constitution.

8Voconiaii Law A law enacted in 169 B.C. that prevented women from receiv­ing inheritances. Cicero in On Old Age reports that he once spoke in favor of the law.

9Mucianus (180-130 B.C.) Roman politician.

10Several lines are missing from the original manuscript.

11Pythagoras (582-507 B.C.) . . . Empedocles (493-433 B.C.) Influential Greek philosophers whose works were well known to Cicero.

12At this point some of the original manuscript is lost.

13Scipio (185-129 B.C.) Roman general.

14Some of the original manuscript is lost here.

15Quintus Pompeius . . . Gaius Hostilius Mancinus Roman consuls in 141 and 137 B.C.

16Much of Cameades’ argument (which Philus relies upon) is missing here.

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