Justice and Skepticism:
Cicero’s Roman Theory of Justice
and the Carneadean Debate

Greek vs. Roman Justice

Cicero’s Roman Theory of Justice and the Carneadean Debate, will examine Cicero’s notion of justice as elaborated in his key philosophical works as well as in some of the speeches; the hypothesis is that Cicero developed a conception of justice at odds with prevailing Greek ones. Marcus Tullius Cicero (106-43 BC), in a series of works, developed an extremely influential political theory. The Carneadean debate in the Republic frames the problem and shows the necessity of deepening the answer on justice’s behalf in a further work, the Laws. Justice and its relevance for political theory as framed in the Carneadean debate remains a live preoccupation in Cicero’s late On Duties (De officiis), as well as in his speeches, especially the Philippics.

In recent years there has been renewed interest in Cicero’s political thought (Christes 1983; Girardet 1983; Steinmetz 1989; Annas 1989; Podes 1991; Atkins 2013; Straumann 2016, ch. 4; Zetzel 2017; Zetzel 2017a) and Roman political thought more broadly. There has also been renewed interest in the context of Cicero’s thought, the crisis of the late Republic. There has been a long text-critical philological tradition of scholarship trying to ascribe the most important of Cicero’s views, especially those elaborated in the On Duties, to Greek models and predecessors, such as Panaetius (but see, for excellent criticism of this ultimately untenable position, Lefèvre 2001).

By contrast, this subproject is open to the view, rendered increasingly plausible by more recent scholarship, that Cicero’s conception of justice represented a new, specifically Roman theory inspired by Roman private law and its own political context (Lefèvre 2001; Straumann 2016). Cicero’s theory of justice more narrowly speaking (Horn 2007) has not received as much attention—notwithstanding the fact that it was this aspect of his thought that was to have the deepest impact on later intellectual history, providing ammunition to some thinkers to break with Aristotelian, Epicurean and Stoic views on justice.

Taking the Carneadean debate as its vantage point, subproject I seeks to examine Cicero’s conception of justice—within and between polities—as elaborated in the Republic, the Laws and On Duties, offering to shed light on how Cicero’s natural-law justification of empire fits into his broader conceptualizations of justice. Further open questions include the relationship between private Roman law and Cicero’s normative views (Griffin 2013; Straumann 2016, ch. 1) and between his natural law theory and the historical context of civil war and failing institutions in the late Roman Republic.

A Legal Theory of Justice

A key characteristic of Cicero’s view must be seen in the fact that his conception of justice is heavily influenced by law and formulated in jural, not virtue-ethical, terms; any investigation of his theory of justice will therefore have to reckon with the importance of Roman law—an key aspect which is also of crucial importance to the extraordinarily influential nature of Ciceronian justice (on reasons for the reach and migratory character of Roman law, see Whitman 2003; 2009).

The Carneadean debate is a debate on justice taking place in the third book of Cicero’s Republic: a participant in the dialogue by the name of Philus represents the Greek skeptic Carneades and argues that justice does not exist, or if it did would equal stupidity; as an example he says that if Rome wanted to be just, she would have to give up her empire, which had been unjustly gained. In reply the protagonist Laelius puts forward the view that Rome had gained empire justly, by defending her allies in just wars, and in accordance with natural law. He also claims, in Augustine’s highly influential rendering, that (Cic. Rep. 3.36=August. De civ. D. 19.21, trans. Zetzel) “empire is just because subjection (servitus) is useful for such men and that when it is rightly done, it is done on their behalf, that is, when the right to do injury is taken away from wicked people: the conquered will be better off, because they would be worse off if they had not been conquered.”

The debate has been transmitted to us in a fragmentary state by Lactantius and Augustine (Testard 1958; Heck 1966; Hand 1970; Büchner 1984; Stock 1996), and it is their treatment of the debate that has crucially shaped its influence until the early modern period (there is no study of the Republic's reception; for Cicero in general see still Zielinski 1908; for Renaissance Ciceronianism Tuck 1993). Cicero’s dialogue was indebted to Plato’s Politeia, but the extent to which Cicero is original in his handling of this background needs further examination. The Greek skeptic Carneades was Cicero’s direct model.

Skepticism about Justice

In the year 155 BC, Carneades had apparently been to Rome as a member of a Greek embassy, delivering speeches for and against justice (Glucker 2001; Zetzel 1996). We do not know Carneades’ speeches (Glucker 2001; Zetzel 1996), only Cicero’s treatment as rendered by Lactantius and Augustine (for older scholarship on the Republic up to the early 70s, see Schmidt 1973; on the reconstruction of the debate, see Ferrary 1974; Ferrary 1977; Zetzel 2017). Cicero is concerned to establish anti-skeptical natural law criteria for justice and, especially, for the justice of the Roman imperial expansion (Griffin 2008; Schofield 2013; cf. Brunt 1978), criteria that he can then be seen fleshing out in his De legibus (Rawson 1973; Girardet 1983; Girardet 1983; Girardet 1989; Podes 1991; Schmidt 2001; Dyck 2004).

The main scholarly discussion concerns whether or not books 2-3 of De legibus present natural law as expounded in book 1 (Girardet 1983; Ferrary 1995; E. M. Atkins 2000; Dyck 2004) or whether Cicero here is following a Platonic model (Atkins 2013) according to which his laws are merely the closest approximation to natural law (Inwood and Miller 2007), not Stoic natural law (Asmis 2008 argues for a Stoic model; see also Griffin 1996) proper. That Cicero is—either way—establishing a set of higher-order norms is crucial (Straumann 2011; Straumann 2016, ch. 4). The view of justice prepared in the Carneadean debate can be traced through De legibus to De officiis, where it has been argued, along Augustinian lines, that Cicero is really arguing for justice in a merely pragmatic-prudential way (E. M. Atkins 1990); this, however, has been refuted (Horn 2007; Straumann 2014a).

The proposed project seeks to uncover, without Augustine’s gloss, Cicero’s use of the Carneadean debate for his broader conception of justice as it is articulated in the Republic, the Laws and On Duties. A key aspect of Cicero’s theory of justice lies in its distinction—first adapted by Grotius but felt most influentially in Adam Smith (Straumann 2015; Straumann 2017b)—between mere generosity on the one hand and legally owed obligations on the other. Only the latter are part of Cicero’s conception of justice, which can therefore be applied even to situations where a political authority is absent, such as between polities in a state of nature (Straumann 2015).

Defending Justice

Cicero differentiated (Off. 1.20) between justice in the broader sense (beneficentia) and actual justice (iustitia) in the narrow sense, which deals with private property and obligatory rights (Roman-law rights in personam). For Cicero, justice in the narrow sense concentrated on property and contractual rights (see Off. 1.21-41; cf. Lefèvre 2001: 24-35). Liberalitas, in contrast (Off. 1.42), “is bestowed upon each person according to his standing.” Later theories of distributive justice from Grotius onward resemble Cicero’s beneficentia – they are not part of natural law, iustitia in the actual sense, and are not really owed. In contrast, for Cicero, the subjective rights, or facultates, which make up the actual object of natural law, are those rights protected by Roman property law and the law of obligations.

Julia Annas has concluded (Annas 1989: 168f.) that “it can be shown that justice proper is concerned with what we could call matters of legal obligation and rights, while benevolence is concerned with moral duties which we have towards others as fellow human beings.” However, it is quite clear that by identifying Roman justice with natural law (Off. 3.68-72) Cicero gives the claims of justice narrowly understood a higher status than the positive civil law (Straumann 2016, ch. 4). At Off. 3.69, the consequences of this distinction between higher-order rules and mere legislation are made explicit: the higher-order rules should prevail.

This represents an inchoate version of constitutional thought, anchored in a Stoic theory of natural law but given specifically Roman expression in the language of Roman private law. The conflict between higher-order rules and positive ius civile and the respective weight Cicero accords these two distinct sets of norms comes to the fore in the dispute between Diogenes of Babylon and his pupil Antipater (Off. 3.50-56). Pace Annas (1989: 165), this is not “a non-existing conflict”; rather, it is a dispute about the constitutional status of the ius civile, which is being criticized (pace Nörr 1974: 43) on the grounds of Cicero’s conception of justice. This conception of justice as a constitutional standard of a higher order needs to be juxtaposed with Cicero’s views as expounded in the Republic and the Laws.

Jed Atkins has argued that Scipio in the Republic develops a specifically Roman theory of the just state which ultimately reflects Cicero’s skeptical views concerning the reach of reason and natural law in politics (J. W. Atkins 2013; but see Moatti 1997). Atkins’ stimulating analysis, however, suffers from neglecting the speeches and, most importantly, On Duties (Straumann 2016). To develop a comprehensive interpretation it is necessary to look at Cicero’s conception of justice as a whole, as developed throughout his relevant works.

Justice and the Collapse of Political Order

This subproject will be guided by the following fundamental research questions. To what extent did Cicero deviate from his Stoic (Asmis 2008) and Platonic (Atkins 2013) models and fashion his own, distinct theory of justice (for a marxisant view see Wood 1991)? And to what extent was his approach provoked by earlier challenges, such as the sophistic tendencies betrayed in Thucydides’ Melian dialogue? Was this “first extant philosophical justification of Roman empire” (Zetzel 1996: 298) unambiguously imperialist, or did it rather contain the critical seeds that could undermine empire? How does the theory of justice articulated in the Carneadean debate fit into Cicero’s broader ideas on justice and the constitution of a republic (Asmis 2004; Schofield 1995; Cancelli 1972; Kohns 1974)?

Finally, Cicero’s views on justice were developed in response to the breakdown of political order. A historically informed, long-term view of the arguments and historical experience that led to Cicero’s conclusions helps to reconsider the connection between justice and its historical conditions. This subproject will shed completely new light on the origins of both so-called “classical republicanism” and of the natural-law debate about the justice of empire waged in early modern Europe.