by Reece Edmends

After Julius Caesar’s assassination on the Ides of March, 44 BC, the Roman statesman Marcus Tullius Cicero delivered a series of speeches before the Senate and People. These speeches, known as Philippics in honor of Demosthenes’ orations against the ‘tyranny’ of Philip of Macedon, aimed to organise political and military resistance in Rome against the hegemony of Caesar’s lieutenant Marcus Antonius. Hastily composed and designed for the exigencies of the moment, the Philippics are rarely regarded as serious contributions to political philosophy. Recently, Jed Atkins’ Cicero on Politics and the Limits of Reason has reappraised two of Cicero’s philosophical treatises composed in the late fifties BC, On the Republic and On the Laws, as articulations of a novel theory of republican constitutionalism modelled on natural law. My contention is that these constitutionalist ideas would surely have influenced Cicero’s speech-making during the constitutional crisis of 44-43 BC, when Rome’s traditional political norms seemed, to him, to have almost disappeared. In particular, my research focuses on two speeches, Philippics 10 and 11, delivered in February-March 43 BC. While scholars have generally dismissed Cicero’s invocations of natural law in these speeches as special pleading, he was in fact engaging with the same ideas about natural law and the constitution that appear in the philosophical texts.

In Philippic 10, Cicero attempted to persuade the Senate to vote to Marcus Brutus, one of Caesar’s assassins, the governorship of three major provinces: Macedonia, Greece and Illyricum. These provinces could have helped him win the war he was waging against Antonius’ brother in this region, and their resources could later have been used against Antonius himself. In Philippic 11, Cicero pushed the Senate to make Gaius Cassius, another assassin, governor of Syria, where he was thought already to be organising military resistance to Antonius’ ally Publius Dolabella. Radically, Cicero advocated giving Brutus and Cassius commands of potentially unlimited duration to fight their respective wars. In Cassius’ case, the resolution proposed by Cicero also gave him a command of potentially unlimited geographical extent, as he was to be given seniority over the governor of any province outside Syria which he should happen to enter for reasons of military necessity. Proposals of this kind had no precedent in the Roman past.

On both occasions, Cicero’s many opponents in the Senate seem to have cried foul. Far from being rewarded, they argued, Brutus and Cassius should be prosecuted. Rather than governing the insignificant provinces, Crete and Cyrenaica, for which they were officially responsible, Brutus and Cassius had abandoned their governorships to undertake wars of choice in other parts of the Mediterranean. While there may have been legal loopholes which Cicero could have found to defend Brutus and Cassius’ activities, Philippics 10 and 11 avoided this kind of argumentation entirely. Instead, Cicero appealed to the notion of a higher law based in nature which justified their actions. In Philippic 10, Brutus was said to have “laid down a law for himself” (Cic. Phil. 10.12). Philippic 11 struck an even more elevated note. When Cassius had set out for Syria to fight Dolabella, he had followed “that law, which Jupiter himself has sanctioned, that all things salutary for the commonwealth should be held as legitimate and right. For law is nothing other than right reason, transmitted through the will of the gods, commanding honourable things, forbidding the contrary. Therefore, he obeyed this law when he went there, the province of another if men followed written laws, but his own according to the law of nature after these laws had been suppressed” (Cic. Phil. 11.28).

The reception of these arguments in modern scholarship has been broadly hostile. According to one scholar, Cicero “attacks the basis of political life… positive law is not replaced by hallowed and perpetual divine law, but by an arbitrarily defined law of nature according to the beliefs of individuals” (G. Manuwald, Cicero: Philippics 3-9, 99).[i] If Cicero, a stalwart defender of Rome’s public law for so much of his career, was prepared to throw out the idea of positive law in toto when faced with a sufficiently grave political crisis, then this was bad news for the Roman Republic. Though neither Cicero, Brutus nor Cassius ultimately established an autocracy, his contemptuous attitude towards “written laws” must have emboldened less scrupulous actors. The future emperor Augustus, who was emerging into public life at precisely this same moment, was later to boast on his epitaph that, in 44-43 BC, he too “raised an army on a private initiative and at private expense” (Res Gestae 1).

In my view, this interpretation does Cicero a disservice. Firstly, neither speech criticised positive law per se. Rather, Cicero diagnosed the specific situation in Macedonia and Syria as one in which no relevant positive laws applied. As Cicero said himself in Philippic 11, Cassius followed the law of nature in entering Syria because “written laws… had been suppressed” (Cic. Phil. 11.28). There had, for much of 44-43 BC, been “a confusion and disturbance of all things” (Cic. Phil. 11.27). Comparison with other parts of Cicero’s oratorial corpus reveals that these were not merely generic lamentations of the way in which Antonius and his allies had ridden roughshod over the constitution after the Ides of March, though these, too, featured regularly in the Philippics. In fact, the exceptional legal status of the provinces of Macedonia and Syria had long been a Ciceronian bête noire. In April 44 BC, the Senate made Antonius and Dolabella governors of Macedonia and Syria respectively for the following year. By June, Antonius had decided that he would swap Macedonia for the more powerful provinces of Nearer and Further Gaul, transfer Macedonia to his brother, and extend the length of his and Dolabella’s governorships to five years. When Antonius laid out these plans before the Senate, many influential senators walked out. Undeterred, he sought to force these proposals through the popular assembly the following day. As Cicero argued in Philippic 5, this move was unconstitutional (Cic. Phil. 5.7-10). Antonius had failed to promulgate his bill for the required number of days before the vote, had brought armed men into the Forum, and had violated religious protocols. By the time Philippics 10 and 11 were delivered, Cicero was able to claim that Macedonia and Syria were in a state of exception, and that there were no positive laws for Brutus and Cassius to observe. Most of Cicero’s colleagues in the Senate must also have been sympathetic to the idea that Antonius’ provincial arrangements were illegal, as they had voted to repeal them a few weeks before.

Furthermore, both Philippics 10 and 11 endeavoured to persuade the Senate to create positive law in order to formalise Brutus’ and Cassius’ legal position in their respective theatres. Indeed, the extant text of each speech contained a draft resolution, which Cicero intended the Senate to incorporate into one of its decrees. Rather than suggesting that positive law be replaced by natural law, as scholars believe him to have been doing, Cicero was suggesting that the legal emergency created by Antonius could be remedied by the enactment of new public laws, modelled on the natural law that Brutus and Cassius followed. In my view, this argument is congruent with the theories about natural law and the constitution unveiled in Cicero’s philosophical treatises some years before.

Scholars often note that, in Philippic 11, the statement that “law is nothing other than right reason, transmitted through the will of the gods, commanding honourable things, forbidding the contrary” is practically a verbatim quotation of Cicero’s own On the Laws.[ii] In this philosophical work, Cicero had claimed that “law is the highest reason, implanted in nature, which commands what ought to be done and forbids the opposite” (Cic. Leg. 1.18). The traditional scholarly interpretation of On the Laws stresses the Stoic influence on Cicero’s philosophical project, and notes that the definition of law as divine reason which prescribes just actions echoes that of the Stoic philosopher Chrysippus. To Chrysippus and other Stoics, natural law was the only true law, and human constitutions were without value. If, as many scholars assert, Cicero were willing to quote Stoic idiom not only in his treatises but also on the floor of the Senate in 43 BC, that would indeed have been bad news for Rome’s established constitutional order.[iii]

However, as Atkins’ Cicero on Politics and the Limits of Reason shows, Stoicism was not the only tradition influencing Cicero’s reasoning on these topics. Though the definition of law as divine reason in On the Laws was a Stoic one, Cicero was hardly an orthodox Stoic thinker. According to Atkins, in On the Laws – and, for that matter, On the Republic, which tackled many of the same questions – Cicero defected from Stoicism in attributing to human legislation the capacity of distinguishing between justice and injustice. For Cicero, the Stoic conception of natural law provided a standard to validate human law, but the latter was still valuable in its own right. The laws proposed by legislators and adopted by assemblies were intended for human beings whose natures were variable, mortal and perishable. These laws, unlike natural law, were not permanent, invariable and divine. However, according to Cicero, they could, and should, be ‘modelled’ and ‘directed’ towards natural law in order that they might impel ordinary men towards just actions and forbid them from performing unjust ones (Cic. Leg. 2.14).

Reading Philippics 10 and 11 in this light, it becomes clear that natural law, which Brutus and Cassius followed during the state of emergency, was being proposed as a model for Cicero’s suggested positive legal arrangements regarding Macedonia and Syria. Notably, Philippic 10 repeatedly stressed Brutus’ extraordinary virtue in acting as he did. His “divine and incredible virtue,” Cicero said, was so great that Macedonia, Illyricum and Greece were saved for the Republic (Cic. Phil. 10.11). In Philippic 11, virtue was also attributed to Cassius: the pair were “men pre-eminent in virtue, authority and nobility” (Cic. Phil. 11.27). Virtue, then as now, was not a quality often ascribed to politicians. No other individual in Cicero’s entire oratorical corpus is praised in this way. Only Gnaeus Pompeius, in Cicero’s speech On the Manilian Law (66 BC), was praised in vaguely similar terms, and the virtue which he was said to have possessed was more obviously practical and militaristic.

In the pages of Cicero’s philosophical works, references often appeared to a unique individual, variously termed a “prudent man,” a “ruler,” or a “best citizen,” who possessed a virtue lacking in other men. In Cicero’s opinion, he had obtained this virtue on account of his perfectly rational nature. On the Republic compared his soul, in which reason ruled over the passions, to an elephant ridden by an Indian or Carthaginian mahout, who controlled the beast through gentle admonition and touch (Cic. Rep. 2.67). Because this man’s nature was rational, he partook completely in the rational nature of the cosmos, and was able to follow consistently “right reason” inscribed in nature: that is, natural law. On the other hand, ordinary humans were not perfectly rational. The rational and bestial parts of their souls were in permanent conflict, and as such they could not be said to have attained virtue. It was impossible in such a condition to ascertain what natural law required. Positive laws, by contrast, were accessible to ordinary citizens, and, where they were modelled on natural law, they distinguished justice from injustice in a way that was appropriate for mortals.

Implicit in Philippics 10 and 11 was the idea that, because Brutus and Cassius were virtuous, they were uniquely qualified to follow the requirements of natural law at a moment when Antonius had overturned the existing positive legal order. In going to Macedonia and Syria, they had illuminated natural law, from which positive law could be derived. If the Senate approved the sweeping new commands which Cicero proposed, the legislative framework of the Roman Republic, which needed to be reconstructed in order to provide guidance to ordinary citizens, could be brought into conformity with the dictates of nature. Of course, this could be dismissed as casuistry on Cicero’s part, and perhaps his philosophising was not altogether convincing at the time, either. It is unclear whether the Senate was persuaded by the proposal in Philippic 10, but they clearly rejected the proposal in Philippic 11, whereupon Cicero wrote to Cassius urging him to fulfill his objective in Syria independent of official authorisation. Still, his arguments deserve more attention than they have hitherto been given. Contained within them was a significant and far-reaching doctrine concerning the relationship between positive and natural law, which was consistent with the ideas outlined in his previous philosophical work. One wonders what other big ideas have left their trace on the Philippics, waiting for us to find them.

Reece Edmends is a fourth-year PhD candidate in the Department of Classics at Princeton University. He is interested in Roman politics and political thought, and is currently writing about the political advertising of the emperor Augustus. He received a BA and MPhil in Classics from the University of Cambridge.

Edited by Stephanie Zgouridi

Featured image: William Blake, ‘Marcus Tullius Cicero’, Manchester City Gallery, Tempera on canvas (c. 1800).  Courtesy by Wikimedia Commons.

[i] See J. Harries, Cicero and the Jurists: From Citizens’ Law to the Lawful State (London, 2006), 224-228, I. Gildenhard, Creative Eloquence: The Construction of Reality in Cicero’s Speeches (Oxford, 2011), 194-195, B. Straumann, Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution (New York, 2016), 116-117, L. Hodgson, Res Publica and the Roman Republic: ‘Without Body or Form’ (Oxford, 2017), 254-255.

[ii] E.g., J. Harries, Cicero and the Jurists: From Citizens’ Law to the Lawful State (London, 2006), 227; also see, I. Gildenhard, Creative Eloquence: The Construction of Reality in Cicero’s Speeches (Oxford, 2011), 194-195; Phil. 11.28.

[iii] See I. Gildenhard, Creative Eloquence: The Construction of Reality in Cicero’s Speeches (Oxford, 2011), 194: ‘Cicero quotes Stoic idiom almost verbatim.’