Cicero views choice as the normative act of distinguishing between right and wrong (“Law, therefore, is the distinction between just and unjust things”)20 and emphasizes how it tends to both establish and command. Law does not already exist, it does not have being, but is made or must be made. Thus “it should be clear that in the interpretation of the word ‘law’ itself there is the significance and intention of choosing something just and right [vim et sententiam iusti et iuris legendi].”21 The content of law is justice and the dictum its mode of being: it operates with the power to establish.
According to Cicero, law’s power to establish is not subjective or arbitrary at all. On his view, the command indeed defines law’s effect, but not its creation. The Roman understanding of law does not consider the command to be “the basis of the essence of domination,”22 as Heidegger thought. For the basis of law is reason. If, in the question of the “principles of right,” the “great philosophers” have taken law as their starting point, then according to Cicero they did this on the justified assumption that “as these same people define it, law is the highest reason, rooted in nature, which commands things that must be done and prohibits the opposite. When this same reason is secured and established in the human mind, it is law.”23 The sequence of steps leading from the nature of right to its reason and then to its law runs as follows:
Those who have been given reason by nature have also been given right reason, and therefore law too, which is right reason in commands and prohibitions; and if they have been given law, then they have been given justice too. All people have reason, and therefore justice has been given to all.24
Right as law is establishment, command – and, at the same time, it has been given to all people through their “right reason” (because “we are born for justice and … justice is established not by opinion but by nature”25). How are these claims supposed to be compatible?
They are no longer compatible as they were on the Greek conception. For the Greeks, there was one perspective on the political governance of the community, from which law’s justice (as distributive) was able to be thought together with its externality (as educative). This is the political “synthesis of reason and subjectivity, of nature and artificiality” in the moral-pedagogical conception of law.26 In Rome, on the other hand, with Cicero, the two aspects of law [Recht], that it is established and natural, a command and something reasonable to do, are associated with different perspectives, are given different roles, personae. To be sure, Cicero also firmly declares that “law ought to correct vices and encourage virtues.” As a result, “the knowledge of how to live should be drawn from it.” The “function of law” is “to persuade rather than to compel all things through force and threats.”27 This education, however, does not take place through law [Gesetz] in its juridical manifestation, as establishment or command. It occurs due to its natural-rational basis or content, and happens outside of the institution of law [Recht]: in the philosophical contemplation of law. Philosophy, as “parent and teacher” of the human being who comes to know himself [sich selbst erkennenden], is oriented to the “eternal law” that is prior to any “written” one.28 Law has morally educative power only if, and insofar as, philosophy is able to recognize [wiederzuerkennen] what is natural and not established in law that has been established. “When [reason] in a human being … is brought to maturity, [it resides] in the mind of wise men:”29 mere law, if it exists for itself and remains unconceptualized in a philosophical sense, is mere establishment, mere command.
Cicero’s linking of law’s rational content to philosophical awareness [Erkenntnis] gives its externality a different sense than it had on the Greek model. Its externality is no longer viewed as transitory, as the moment in which education is passed on, but is understood in perspectival terms. The externality of law is now its necessary mode of appearance – law as it appears from its own perspective. The sublation of law’s externality becomes one-sided: it only happens in the special (in a twofold sense) perspective of philosophy. Conversely, externality persists in law’s operation itself. Natural reason manifests itself in law [Gesetz] as “the power of command [imperium], without which no home or state or nation or the whole race of mankind can survive, nor can nature or the world itself.”30 From law’s [Recht] non-philosophical perspective, a commanding externality is unavoidable, because natural reason is absent by nature, because the human being’s deviation from natural reason has become second nature:
The justice of which I speak is natural, but … such is the corruption of bad habits [corruptelam malae consuetudinis] that it extinguishes what I may call the sparks given by nature, and that contrary vices arise and become established.31
life is sought because it keeps us in the state in which we were born.32
Because the merely natural striving for self-preservation has taken the place of natural reason and corrupted it, a law that commands is necessary. While philosophy spreads the view that “justice is desirable on its own account [per se],”33 law which no longer educates but commands accepts the striving for self-preservation as a given. Natural law’s surpassing of political paideia, which based law on the rational nature of human beings instead of placing it under community control, yields the conception of a right that, by externally commanding, creates a non-juridical, non-lawful nature that is opposed to it.
Human nature is at the same time freed from moral teleology, since, in Rome, law can no longer be legitimated by claiming that its coercion is neutralized, insofar as it is educative. It is therefore freed because law here no longer fulfills the task of education in the virtues, indeed entirely renounces this task and the strictness of its rules. Law’s overt domination has anthropological implications. If the lawfulness of law is inscribed into a teleology of education, human nature appears to be in principle capable of morality, indeed to aim for it. Educative law’s conception of nature is teleological: the natural human being to whom the legal rule, as it has been legally established, refers is someone who has yet to become virtuous or to be made virtuous, and is therefore the virtuous human being in the imperfect mode of having a capacity that is not yet developed enough to be actualized. Roman law’s severing of the teleological connection between nature (as disposition) and virtue (as goal) in the operation of its commands (or more precisely: its excluding virtue from law and delegating it to philosophy) also means that it is no longer able to explain their relation by referring to the ontological hierarchy of possibility and actuality. From law’s perspective, and in terms of how it operates, nature and morality, self-preservation and virtue, have the same ontological status: they are both equally possible. For Roman law, virtue becomes merely one possibility – and the natural inclination to self-preservation becomes another possibility. Both the “right reason” of virtue and the natural “mental error”34 of self-preservation are equally possible.
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Faced with a striving for self-preservation that had become a second, corrupt nature, the only choice left for Roman law was to command by giving orders and to rely on the achievement of education, which takes place not in and through law, but somewhere else and in some other way. Law and morality are different; they operate in distinct ways, without being opposed to each other. This is why, on the one hand, law is the merely external rule of “right reason” over corrupt nature’s errors in judgment, but does not ensure the normative “choice” of reason over nature in the educative transformation of nature into reason. And, on the other hand, this is why the merely external rule of law over nature is no problem. If asked to justify itself, law [Recht] can certainly no longer refer to its educational goals – it has lost the right [Recht] to do so here. It can, however, point to philosophy, the virtuous human being’s “parent and teacher,” which de-problematizes what is problematic in law – since all establishment
