In De Legibus, Marcus, as the principal speaker and stand-in for Cicero, describes law as right reason, as the selection of justice within a community. Most modem readers have concluded that this description is based on the belief that there is an immutable human nature and a transcendent order in the universe that dictates right reason and thus determines specific rules of law. And since this belief is said to rest on psychological and theological assumptions that are rejected in modem thought, the dialogue, Cicero's principal work on the nature of law, is not considered to be of much current interest. But the text of De Legibus does not support this reading of Cicero's legal views. Indeed, the standard interpretation depends upon lifting parts of the speeches made in this dialogue and in De Republica out of context and treating them as abstract statements of Cicero's legal theory. Ironically, De Legibus itself, in its opening passage, anticipates and refutes this reading. The dialogue specifically denies any claim to objective truth, and its conception of law does not depend upon any notion of the essential character of human beings or a divine order in the universe. Instead, the dialogue argues for a view of law as public discourse about justice, and it presents this view as a rhetorical construct, valuable for the purpose of ethical and political action.
In the following pages, I offer a reading of De Legibus that focuses on its treatment of law as a "discoursive" practice and takes seriously its self-presentation as a rhetorical construct. My hope is that this reading will make Cicero's rhetorical view of law more available to modem readers. At the end of the essay, I suggest some ways this view may contribute to current jurisprudential discussion.
Amy H. Kastely,
Cicero's De Legibus: Law and Talking Justly Toward a Just Community,
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol3/iss1/2