Ancient Rome philosophers on natural law

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Ancient Rome philosophers on natural law

Khvoynytska Kh.M.,

Candidate of Philosophical Sciences, associate professor of the Department of Philosophy of Lviv National University «Lviv Polytechnic» (Ukraine, Lviv), khrystyna81@gmail.com

The problem of the natural right in products of thinkers of the Ancient Greece and Rome is investigated. The concept of the right of narrow and wide value is studied. Development and transformation of idea of the natural right in legal concepts of Cicero and philosophers-- stoics is analyzed. Features of antique understanding ofthe rightofjustice and the law speak. Vision ofthe natural rightas ontologic phenomenon is formed. Itsfeature as an attributive substance is defined. The especial attention is given the natural right as to the basic concept of system of doctrines about the antiquity right. The analysis of theories of an origin ofthe natural right, its basic elements and ways of its application to lives ofthe separate individual and in right creation in the state as a 'whole is granted. To be summed up that the natural right ofantiquity served as the exsampleforformation ofpositive laws.

Keywords: natural rights, positive law, antiquity, Logos,justice.

Філософи Стародавнього Риму про природне право. Хвоиницьки Х.М.

Розглянуто проблему природного права в творах мислителів Стародавнього Риму. Проаналізовано розвиток та трансформацію ідеї природного права у правових концепціях Цицерона та філософів--стоїків. Досліджено особливості античного розуміння права, справедливості та закону. Сформовано бачення природного права як онтологічного феномену. Визначено його особливість як субстанційно-атрибутивного явища. Особливу увагу приділено природному правуяк головному поняттю в системі вчень про право давнього Риму. Проаналізовано теорії походження природного права, його визначальних елементів та шляхів застосування у житті окремого індивіда та в правотворчості держави загалом. Підсумовано, що природне право давньогоРиму слугувалозразком для формування позитивних законів.

Ключові слова: природне право, позитивне право, античність, Логос, Цицерон, справедливість.

Antiquity thinkers believed political and legal life was based on the recognition ofjustice and its nature in its nature - the right, and the state was considered a form of natural communication of people, showed a high legal awareness and culture. It was based on the fact that no one, even the highest status of a political figure, could be free from control and accountability to society since it was required by justice (natural law). The principle of justice and the natural law compliance was considered to be a guarantee both equilibrium and space, and police. The ancient Greeks thereupon created a «moral right» or «legalized morality» [2, p. 117]. Law was conceived as an integral part of morality, which was the basis of the relations of citizens of the policy, was formed by them and, therefore, was the natural basis of cohabitation. Therefore, the law being prior founded on this morality, embodied the natural justice and was a guarantee of social equilibrium, common weatlth, good, was equal to all free citizens and rulers.

Concept of natural law is considered in modern philosophy in the context of the study of the philosophy of law (P. Rabinovich, A. Baumeister, V. Nerssesyan), history of philosophy (V. Litvinov, M. Paty-Bratsyuk, M. Rogovich). Sufficient attention is paid to the analysis of this concept by foreign scientists (D. Feinberg, D. Coleman, В. Bix). Purpose of the article is to consider and reflect the process of formation of the natural law concept, its understanding by the thinkers of Ancient Rome.

The Roman thinkers, philosophers and lawyers picked up and developed the political and legal tradition formed by the ancient Greeks, especially the idea of justice and equality thereof. The idea ofjustice meant for them, first of all, compliance with the law of living requirements. The idea of natural law was associated with the idea of the fairness of relations within the human community, family, in particular. The justified equality or equal justice was conceived as the main essential feature of law, and contradictory to it was proclaimed an illegal, non-legal phenomenon. Such close attention of the Roman lawyers to private law which stemmed from human relations within the community was based on the idea ofjustice. ancient rome philosopher law

The private law of the Romans was divided into natural (jus naturale), the law of nations (jus gentium) and the law of civil (jus civils), that is, natural law was more general. Ulpan, a Roman lawyer (II-III centuries), explained that natural law is the law all alive was taught on, therefore, its definition is close to the ancient Greek interpretation of cosmic justice. Instead, the law of nations is fair relations between people of different countries, and civil rights arejust relations between citizens in a society. Since both the law of nations and the civil law were associated with natural law, the Roman law was conceived as the embodiment ofjustice as a natural- divine principle.

The most famous and, therefore, a sufficiently complete formulation of the natural law in the antique era belongs to the Roman thinker Cicero. He was under the great influence of the Greek Stoics like many Roman theorists of law. Some researchers believe that Cicero in his treatises «On the Laws», «On the State» simply newly «elegantly» formulated the already established views of the Stoics [3, p. 21]. A. Baumaister writes that «reading its (Cicero-Auto.) fragments, we only need to remember the stoic tradition of understanding God as the principle of nature. Nature is not an example, but it originates from God. Furthermore, God in stoicism is an absolute and universal mind. The natural law is an expression, a manifestation of this higher mind.

Therefore, to obey natural laws means to realize yourself as a part of the «universal and rational order» [6, p. 118]. Laws established by humans (positive law) can be consistent with this right, and then they are true. However, if the human laws conflict with the natural law, then they are false and distort the objective rational order.

Cicero in the writings «On the State» claims: «This law is a rational establishment that corresponds to the nature, extends to all people; it is permanent, eternal, calling for the fulfillment of duty through an order that scares away the crime by prohibition ... Though any limits of its actions are not allowed. It is completely impossible to cancel it by neither the decree of the Senate not the decision of the people to get rid of such law ... For there will not be one law in Rome, the second in Athens, the third one now and another in the future. One eternal and unchanging law will spread on all peoples at one time, and there will be one common law as a mentor, and the ruler of all people - God, the creator, the judge, and the author of the law. Whoever does not submit to him, will run from himself forever and despising the human nature, thereby undergoes the greatest punishment, although avoids other suffering thereof» [5, p. 113-114].

These words of the great antique philosopher and speaker can be considered a classical definition of natural law. He sees his basis in the very rational essence of a human being. Reason is the greatest and most perfect gift given to a human. Cicero believed that it is a mind that links a person with the deity, «and since reason is a law, then we, humans, must also be bound by the law with the gods. Then there is a commonality between them in the form of a law, commonality in the form of law also exists. And those keeping the same law and rights are common must be considered to belong to the same community... Therefore, all this world must be considered as the only community of the gods and people» [6, p. 119].

Cicero is convinced that the mind cannot be considered only as the ability to reason, because this phenomenon combines gods and people as their very nature: «Of all the matters discussed by the scholars, nothing is as important as certain understanding that we are born in justice, and that is not based on the reasoning of people, but that the law is grounded on the nature» [5, p. 165]. Consequently, legal norms exist objectively, but people can also know and use them. It is only by acting in accordance with a certain tradition that good can be achieved.

The natural law, if it is based «not on the reasoning of people», must be unconditional and non-utilitarian. The researchers are convinced that Cicero, arguing the unconventionality and non-utilitarian nature of natural law, admits his identity with the notion of «common good», «the common good» as a natural law and universal good: «If the law will not be rooted in nature, then all the virtues will be destroyed. Indeed, where can nobility, love for a motherland, a sense of duty, a desire to serve a neighbor or to show his gratitude to him exist? After all, all this is born from the fact that we, by nature, tend to love people. And this is the basis oflaw» [5, p. 119].

These words imply that Cicero relates the law to a specific human nature - humanity, humanity, ability to high, sublime feelings and impulses, and not with selfish motives. It is important for him to emphasize that the basis of natural law is the ability of a person to compassion and mercy, his self-esteem and a sense of human dignity. These phenomena are not subject to regulation by human laws. The remoteness of our time helps one assume that Cicero meant conscience as a person's self-awareness when he understood the basis of the natural law. The laws adopted by the majority votes (positive law) are associated with Cicero with a rational order, decisions of the rulers, and judgments of the judges. Such laws are intended to streamline and correct the sensory passions of people, their propensities, which often take unacceptable forms for the society. These laws can be regulated; they differ in different nations.

The natural law of Cicero is defined as eternal and, as has already been emphasized more than once, universal, the law, it is unchanged as a world order established by God: «The law (that is, the natural law - Aut.) was not invented by a human being and is not a any kind of regulation of the nations. It is something that rules the whole world because of the wisdom of its commandments and prohibitions... What about numerous harmful, disastrous decisions of the peoples? After all, they deserve the name of the law no more than a decision taken by common consent by the robbers... People should not call any law no more than a regulation even a disastrous one, only because people accepted it. So, the law is a decision that distinguishes between the righteous and the unjust and expressed in accordance with the most ancient primordial beginning of everything -nature where the human laws are harmonized» [6, p. 120].

Consequently, the natural law of Cicero treats as unchanging in time and universal (common) for all people the principle of organization of society; each person, guided by his or her mind as a determinant of human nature, can comprehend the standards (requirements) of this higher law, and only human laws that are consistent with the requirements of this higher law deserve the title oflaw. It is the definition of the concept of law that contains separately the principle of choosing what is fair, proper and appropriate.

The natural law, according to the ancient thinkers - Roman authors - is less or more clearly associated with the notion of nature. However, the nature itself is conceived as the essence of a human being (Cicero), then as the natural ability of a human being (mind and consciousness), which unites a person with the deity (Stoics), or as in the Universe - a physical world around a human, regulated space, and the world order itself dictates natural law. Ancient thinkers connects the natural law with the moral rules and the rules of human behavior, and the laws established by humans must take into account the natural law, then they will be fair and acceptable.

The thoughts of ancient thinkers about the natural law, its foundations and role in the society have not lost their relevance up to now; they can serve as a model and a criterion for the positive law and the formation of legal laws.

The theory of natural law actively developed by the representatives of Stoicism - Greek and Roman stoics (III-I centuries BCE - I-II centuries.). Zenon from Kithion, Hrisippus, Panetyus and Posidonius, and Seneca, Epictetus, and Mark Aurelius in Rome believed in fate as the dominant beginning of the world, which was the mind of the universe or the law of all things. Zeno believed that the natural law is divine and has the power that makes it do law and forbids the opposite. At the same time, the natural law is the embodiment of universal justice, which the Stoics are a criterion for both the state and its laws. Based on such ideas, in particular on the universal nature of natural law and justice, the Stoics justified cosmopolitan ideas that all people by their very?

nature are citizens of a single world state. Most consistently the idea of spiritual freedom and equality of all people, even slaves, defended Seneca, relying on the idea of natural law as a universal and equal to all world law [1, p. 125].

The development of Roman jurisprudence in the era of the republic, and especially in the era of the empire, testifies not only the legal practice, but also the theory of law. Under the law one could understand the phenomenon that covered the natural law (jus naturale) and all that subsequently covered the concept of positive law (jus positivum). The law researcher V. Nersesyants believes « that recognition of the reality of natural law, which was included in the law in general, and at the same time, the absence of a special notion of the positive law in the Roman legal sense (as a denial of natural law, its original contradiction, etc.) meant that, according to the Roman lawyers, any other law recognized by them, refers to the applicable law, its specific component (the component and property of the law in general), and not just the theoretical legal structure and category, not only by «a true» concept external to the norms and principles of actually acting law» [1, p. 162-163]. The inclusion of the natural law by the Roman lawyers in the aggregate volume of the concept of law in general completely corresponded to their fundamental ideas of law as a moral phenomenon. This is evidenced by Ulpian, who deduces the conceptyAs (right) from justitia (truth,justice), specifying that the law is ars (art, practically realizable ability, science) in its essence, and boni (good) and aegui (equality andjustice) [1, p. 165].

The researcher explains, and this is important for understanding the phenomenon of natural law in the Middle Ages, that the concept of aeguitas in its relation to the legal phenomena in the Romanjurisprudence has acquired the value of justice in a special sense (in the sense of specifying the concept ої justitia), precisely because the concept of justice as a general principle of law in general, and natural law, in particular, includes, according to the views ofPlato, Aristotle, Cicero, the Stoics and under the influence of the Roman lawyers, the moment of equality, proportionality, equivalence and ideological relations in human relationships [1, p. 167].

The equivalence in human relations, which was linked to the Roman jurists with the notions of equality and proportionality, as the basic principle of natural law was adequately perceived by the Christian Legal Culture of the Middle Ages. Here the tradition of respect to the natural law took shape in a Christianized-theological form. The Christian idea of the equality of all people before God and the equal payment and punishment for the sins was affected by the interpretation of the natural law, subjected hereon to substantial modifications compared with the interpretations of its ancient Greek and ancient Roman thinkers.

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