syllabus natural law 23-24.docx

**UCLouvain Saint-Louis -- Bruxelles** **Jérémie Van Meerbeeck** **3^ème^ Bac Droit** **[Introduction]{.smallcaps}** - **What is natural law (in your opinion)?** **At first sight, the combination of the terms \'law\' and \'natural\' may seem absurd: is not law first and foremost associated with human affairs, the fruit in our democratic societies of the decision of an elected assembly? Doesn\'t nature concern precisely that which escapes human creation, which obviously does not imply that it escapes human control?** **Yet it is the dissociation of these terms that would seem incongruous to the thinkers of antiquity and the Middle Ages. As we shall see, the notion of natural law played a [central role in social contract theories], only to be [discredited by modern legal theory], which is strongly [influenced by legal positivism]. However, natural law has not said its last word.** **But what can this expression of "natural law" refer to? From the outset, we must guard against the temptation, understandable in view of the terms used, to see it as a concept that is univocal at all times and in all places. While the reference to natural law leads us [instinctively to the idea of fundamental rights], we shall see that the latter was completely foreign to a philosopher like Aristotle. The [same] applies to other concepts such as the [general principles of law or *ius cogens*]. Already present among the Greeks and Romans, the notion of equity underwent a considerable evolution over the centuries before encountering positivist scepticism.** **Reserving the nuances for the rest of the course, we could already, as a first sketch, associate natural law with universal justice in ancient thought, with divine justice during the medieval era and with the rights inherent in the individual in modern thought. More recently, the success of ecological movements has led some to describe as natural a right that would not only derive from nature (or from God) but would constitute a true right *of* nature, while others wonder whether the digital world is not capable of offering us a new natural justice, derived from statistical objectivity.** **The very idea that natural law has an immutable content is not unanimously held either. Thus, [Aristotle suggests] a notion - quite complex to grasp - of the variability of natural law and [Thomas Aquinas] defended the idea that some principles of natural law have evolved over time.** - **Why a natural law course?** « Tels croient pouvoir, grâce à une attitude pragmatique, se passer entièrement de philosophie ou de théorie générale, qui ne parviennent en réalité qu\'à faire de la philosophie ou de la théorie sans le savoir, par conséquent d\'une manière peu soigneuse. Un effet particulier de cette inertie philosophique (...) est le préjugé selon lequel la philosophie ou théorie du droit serait inutile pour le métier de juriste et n\'offrirait d\'intérêt que pour les esprits spéculatifs. Préjugé très répandu chez les praticiens et même chez ceux qui enseignent le droit. (...) Il est d\'ailleurs vrai que l\'utilité de la théorie du droit pour le praticien est indirecte, ce qui la rend peu visible : elle tient surtout à la formation de l\'esprit que cette théorie procure. Rares sont donc les praticiens qui entendraient sans surprise ce mot d\'Einstein : « Rien n\'est plus pratique qu\'une bonne théorie ». (...) Pour remédier à une incuriosité dommageable, il faut d\'abord prendre conscience d\'un phénomène assez général : [quand nous avons à traiter une affaire ou à trancher une question particulière], **nous faisons facilement de la théorie à notre insu**. La théorie du droit en général ne se cantonne pas dans la littérature spécialisée, que la plupart des praticiens ne lisent guère. Ceux-ci se trouvent plus qu\'on ne pense en contact avec elle. Elle affleure en effet dans de nombreux traités de droit positif et même, plus souvent qu\'il ne semble à première vue, dans la motivation de décisions judiciaires, de manière implicite plus souvent qu\'explicite ». (L. [François]{.smallcaps}, \"Le recours à une philosophie du droit dans la motivation de décisions juridictionnelles\", *J.T.*, 2005, p. 261) **Two ideas emerge from this text. The first is that, [like Mr Jourdain who wrote prose without knowing it], all lawyers adhere, in one way or another, to a theory of law. Those who think that a good lawyer does not have to worry about philosophical reflections but only about what is provided for by the rules of law in his codes may be surprised to discover that they are [legal positivists]. The law student who is convinced that there are unwritten rules that are valid at all times and in all places (such as human rights) will have to admit that he or she shares jusnaturalist beliefs. Finally, the most cynical among us, who believe that law is ultimately nothing more than politics in disguise, a product of the economy or the result of the moods of judges, will perhaps recognise themselves in the currents of *[Critical Legal Studies]*, *[Law and Economics]* or [American realism]. If it is futile to pretend to adopt a perfectly neutral attitude in scientific matters, it is *a fortiori* impossible to approach the legal phenomenon with complete neutrality.** **The second idea, which follows from the first, is that legal scholars or judges cannot claim this impossible axiological neutrality either. An example among many: what deep conviction guided the members of the Belgian Court de cassation who, on 27 May 1971, decided that international treaty law with direct effect takes precedence over national law? This solution was clearly not unambiguously imposed by positive law. However, as we shall see, it was justified by reference to the very nature of international conventional law ("la nature même du droit international conventionnel").** **It is therefore not only useful but necessary to be aware of the theories of law that animate jurists, fuel legal texts and judicial decisions, in order to better understand them and better determine their scope**[^1^](#fn1){#fnref1.footnote-ref}**. In this respect, the theories of natural law deserve a special place because of the importance they have had for most of the history of Western law and, although some may wonder whether they are not obsolete today, the essential questions they pose have lost none of their relevance: [is there a law that does not depend exclusively on the human will?] If so, what is its origin, status and function? Moreover, it would be presumptuous, even naïve, to think that the answers to these questions provided by the greatest thinkers of all time have nothing to teach us today.** - **Key issues and concepts** - [Nature v. convention] - Nature (*phusis*): a polysemous notion What is meant by the word **nature**? Immutable order or spontaneous development? Lalande\'s philosophical dictionary offers more than ten definitions, divided into two main categories, depending on whether one is looking at **nature in general** or the **nature of a being**. The general conception can refer to the [whole of everything that God has created (for believers)] or to [everything that exists]. More specifically, the notion of nature evokes the whole of things that have a certain order or that occur according to (natural) laws. Or, as opposed to the conscious and voluntary dimension of human beings, what occurs in the universe without calculation or reflection, the whole of beings other than man or that do not tend towards an end but are driven by a **quasi-mechanical causality**, [the visible world as opposed to ideas and feelings]. In relation to the idea of the nature of a being, the word \"nature\" can indicate the principle producing the **development of a being**, the essence of a genus and, consequently, [what is innate, instinctive or spontaneous in a species of being] or [what distinguishes an individual from others]. The last definition is aimed at the \'fundamental principle of all normative judgement\' and refers to **natural law** understood as [containing ideal and perfect rules], those ἄγραφοι νόμοι [(unwritten laws)] which would be imperfectly imitated (or not) by human laws. For Aristotle, the notion of nature has a particular meaning that refers to his concept of final cause. In the Aristotelian distinction between the four causes, to which we shall return, **the efficient cause refers to mechanical causality**, which is the notion we generally understand today: it is [the relationship between a cause (heating water to 100°) and an effect (the water boils)]. This is the type of cause we think of when we speak of laws of nature ("**lois naturelles**"). The notion of final cause is less familiar to us: for Aristotle, the nature of a thing is first of all its final cause, what it is supposed to become: the plant for the seed, the adult for the foetus, the virtuous citizen for the human being. If one retains a purely objective and mechanical conception of nature, it may seem difficult to extract norms of behaviour from it: scientific laws are intended to *describe* reality, not to *prescribe* a particular behaviour. This will be one of the main objections of critical thinkers of jusnaturalist theories such as Kelsen, based on a famous (but not necessarily well understood) text by Hume[^2^](#fn2){#fnref2.footnote-ref}. If we try to adopt the Aristotelian conception, the gap seems less difficult to cross: [if man\'s final cause, his nature, is to become a **virtuous citizen**], we can more [easily deduce a norm of behaviour], namely the obligation to [act virtuously]. - The convention/law (*nomos*): the social contract? **The question of natural law** appeared in Greece in the 5^th^ century BC, in reaction to the [distinction] put forward by the sophists [between nature and law/norm]. Originally, the Greek conception did not clearly distinguish between nature (*phusis*) and law (*nomos)*, cosmos and social order, these notions being situated on a kind of social continuum, each being having a purpose (*telos*), the pursuit of which allowed the fulfilment of its nature and contributed to the pre-ordained harmony of things. Only human beings (endowed with *logos*) could grasp this natural order. Soon, however, the sophists stressed the need to distinguish between nature and convention and concluded either that justice was identified with the natural law of the strongest or that law was reduced to pure conventions. We will come back to this. The notion of law ("loi") or **convention** refers to the notion of [the will of the legislator or the parties to the contract]. Socrates, Plato and Aristotle insisted that law ("droit") and justice are not just a matter of convention. Later, one of the [central questions] of medieval thought was whether or not natural law (the existence of which nobody disputed) was a [pure product of the divine will or existed independently from it]. Ultimately, the thinkers of the social contract would make the will the founding element of politics, whereas Aristotle saw politics as the concretisation of the deep nature of man, described as a political animal. **The civil state** is [clearly distinguished from an original state of nature], that man left for different reasons according to the authors. If, for Locke, the purpose of the social contract is above all to protect the natural rights of the individual, we shall see that the contractualist thoughts of authors such as Hobbes, Kant or Rousseau had the effect of considerably reducing the place of natural law. - [Positive law vs. natural law] - Positive law **Positive law** can be defined as the [set of legal rules in force in a given legal order at a given time][^3^](#fn3){#fnref3.footnote-ref}. The term \"positive\" (from the Latin *positum*, "posé" in French) refers to the fact that these rules have been [established or laid down by human authorities]. The question then arises as to which \'authority\' is being referred to? There is no doubt that laws/statutes ("lois") passed by Parliament and decrees passed by the executive can be considered as positive law, but what about court decisions, which emanate from the judiciary? In *common law* countries, the answer is positive, but in civil law systems, still influenced by Montesquieu\'s conception (judges are only "the mouthpiece of the law"), the question is more complex. However, it is difficult to deny that [judges participate in the] [creation of positive law]. A special status is occupied in this respect by the general principles of law, to which we shall return at the end of the course. Paul Martens, somewhat provocatively, presents these principles as a means of applying natural law by disguising it behind positive law (« faire du droit naturel en le déguisant derrière du droit positif »). It is true that the recognition of a general principle of law remains a somewhat enigmatic process that is difficult to grasp for positivist theories. The official thesis is that this principle is not created but \'discovered\' by the judge, but it remains difficult to explain why eminent jurists had not \'discovered\' it the day before\... - Natural law According to the definition given in the course of "Sources et principes du droit", natural law is based on the idea that there is [a set of unwritten values and principles that are inscribed in the nature of things or in the nature of man, and that express a higher ideal of justice] (« repose sur l'idée qu'il existe un ensemble de valeurs et de principes non écrits inscrits dans la nature des choses ou dans la nature de l'homme, et qui expriment un idéal supérieur de justice »). Whereas **positive law** [refers to law as it is], \>\< **natural law** [refers to law as it must or should be]. It is therefore a [law that exists beyond (or behind) positive law], which is capable of founding or challenging the legitimacy of positive norms on the basis of the concept of \'nature\', which is polysemous, as we have seen (in some respects, it would be less problematic to speak of \'ideal law\'). We will thus see that [natural law has been used both to legitimise positive norms] [and to challenge them] in the event of a \'conflict of norms\'. The goal of the course is precisely to understand what the notion of natural law could mean. - [Rule of law vs. state law] The relationship between positive law and natural law invites us to reflect on the extremely complex question, and undoubtedly one of the most important in legal theory, of the relationship between law and the state, between the rule of law and the State law, whether we are in the most authoritarian (or absolutist) regime or in a democratic regime. In an absolutist regime, [the supreme authority is above the laws]: \"Princeps legibus solutus est\". [The dictator can therefore change the laws as he/she pleases], and decide not to comply with them. The law cannot be other than what he/she decides, in other words, the **law is the state** (a conception more generally defended by Kelsen). The notion of the rule of law deserves substantial development that are way beyond the scope of this introduction. It was imported by French doctrine at the beginning of the 20th century, inspired by the German notion of *Rechtsstaat*. For Carré de Malberg, it defines the State which, \"dans ses rapports avec ses sujets et pour la garantie de leur statut individuel, se soumet lui-même à un régime de droit, et cela en tant qu'il enchaîne son action sur eux par des règles, dont les unes déterminent les droits réservés aux citoyens, dont les autres fixent par avance les voies et moyens qui pourront être employés en vue de réaliser les buts étatiques\". After the Second World War, the guarantee of \"individual status\" essentially referred to the protection of fundamental rights. The closest concept in English law is the *Rule of law*. What do the ***Rechtsstaat***, the "Etat de droit" and the *Rule of law* have in common and what are the **differences** between them? The main difference lies precisely in the [link between the state and the law]. Whereas the ***Rechtsstaat*** suggests a [symbiosis between the two], and the French doctrine sees the [law as the means of action of the state], the ***Rule of Law*** opposes them in an [antagonistic relationship], or at least [considers the law and the judges as a buffer between the state and the citizens]. On the other hand, all three concepts **share the idea** of a [political power distinct from other social systems], [subject to principles of law] and in charge of protecting individual rights. It is easy to see the **link** that can be made **between natural law and the rule of law**: where is the foundation of these legal principles and individual rights to be found if it is to be distinguished from a purely state origin? In other words, [who is the author of the content of the rule of law if it is not the publics authorities?] The **opposition between absolutist rule and the rule of law** naturally comes to mind: in the first case, [law is subject to power], in the second, [power is subject to law]. The issue becomes more complex when one brings face to face the notions of **rule of law and democracy**. These concepts [usually go hand in hand]. For example, the Declaration adopted on 24 September 2012 by the United Nations General Assembly at the High-level Meeting on the Rule of Law at the National and International Levels emphasised that human rights, the rule of law and democracy are [interdependent], [mutually reinforcing] and [part of the fundamental, universal and indivisible values and principles of the United Nations]. However, if we adopt a purely formal conception of **democracy**, as [the regime in which the power belongs to the majority], it is possible to conceive a **tension - even an opposition** - between the [notions of democracy and rule of law]. In other words, [when the majority decides, in accordance with democratic rules, to abolish the rights of a minority], is it possible to justify the fact that the legal system resists the decision of the people\'s elected representatives? The very idea of a natural law that is not identified with positive law thus invites us to question ourselves and this positive law. Conversely, a dogmatic position of natural law could have the consequence of closing the debate on what is a good law or justice. Thus, for Castioriadis, [if human laws were only dictated by God or by nature, these questions would have no meaning], whereas they cannot be ignored when we consider that society is the source of its norms. As we can see, the issue is not simple and deserves some attention. The following text, written by Martin Luther King from his Birmingham jail in 1963, reminds us of the need to remain vigilant: "I am in Birmingham because injustice is here. (...) [Injustice anywhere is a threat to justice everywhere.] (...) In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices are alive, negotiation, self-purification, and direct action. (...) Nonviolent direct action seeks to create such a crisis and establish such creative tension that a community that has consistently refused to negotiate is forced to confront the issue. (...) Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, [we must see the need of having nonviolent gadflies to create the kind of tension in society that will help men to rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.] (...) We have waited for more than three hundred and forty years for our God-given and constitutional rights. (...) One may well ask, **\"How can you advocate breaking some laws and obeying others?\"** The answer is found in the fact that there are [two types of laws]: there are **just laws**, and there are **unjust laws**. I would agree with St. Augustine that \"[An unjust law is no law at all.\"] Now, what is the difference between the two? A **just law** is [a man-made code that squares with the moral law, or the law of God]. An **unjust law** is a [code that is out of harmony with the moral law.] To put it in the terms of St. Thomas Aquinas, an unjust law is a [human law that is not rooted in eternal and natural law.] Any law that **uplifts human personality** is [just]. Any law that **degrades human personality** is [unjust]. All segregation statutes are unjust because segregation distorts the soul and damages the personality. (...) [One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.] I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law. (...) Was not Thomas Jefferson an extremist? \-- \"We hold these truths to be self-evident, that all men are created equal.\" So the question is not whether we will be extremist, but **what kind of extremists we will be**. (...) [Will we be extremists for the preservation of injustice, or will we be extremists for the cause of justice?"] (Dr. Martin Luther King, Letter from Birmingham Jail, 1963) - **Practical information** - [Ex cathedra course but participation is welcome ] While the course is given in an *ex cathedra* format, student participation is welcome and encouraged. - [Review ] The examination is normally a closed book written examination consisting of **[four questions] on the subject**, one of which relates to [one of the texts seen] in the course and [one which requires more personal reflection] by the student. - [Syllabus] In previous years, a framework syllabus was made available to students, including the (expanded) structure of the course and the text extracts analysed in class. Slides were also made available online after each lecture. Since last year, the aim is now to provide students with [a complete syllabus]. The examination material, however, is limited to what has been covered during the course. It is very important that students **read the text extracts in the syllabus**, **[if possible in advance]**. - **On the course outline** The course consists of [three parts]. The first, and longest, part provides an **overview of natural law theories** from Aristotle to the French and American declarations of the 18^th^ century, which mark both the apogee of natural law by enshrining it in texts of fundamental political importance and announce the beginning of its decline. **This decline** is then studied in the [second part of the course], with critical authors such as Hume and Bentham, thinkers of the transition such as Rousseau and Kant and, of course, the current of legal positivism. Finally, gathering and completing the **criticisms** addressed to natural law encountered in [the second part], [the third part] considers the **answers that can be given to them by the supporters of natural law**. Although they are becoming rare nowadays, the third part also propose reflections which, like those of John Finnis or Lon Fuller, make it possible to nourish contemporary thinking on law. As can be seen, a great deal of space is devoted to the history of legal ideas. It seems to us that this is the best way to understand the different visions of natural law. Leo Strauss sums up the need for this historical journey: « [Le droit naturel n'est plus tenu pour allant de soi] ; il est généralement [considéré], du moins [parmi les non-catholiques], **comme une illusion**; il n'est plus au centre de la discussion, de la discussion philosophique ; il est plus ou moins [méprisé] ; en conséquence, il n'est plus réellement connu. Mais il était au centre de la discussion, il était connu dans le passé. Nous avons besoin d'un retour vers le passé, d'une certaine sorte d'investigation historique, si nous voulons nous familiariser avec le problème philosophique du droit naturel ». L. [Strauss]{.smallcaps}, « Le droit naturel ». - **Warnings** - *[Traduttore, traditore ]* To translate is to betray. Throughout the course, texts translated into English from Greek, or Latin will be analysed. None of these translations is perfect and students have to be aware of false friends or \"instinctive understandings\". Take, for example, the Latin expression \"ius naturale\" (natural right). One author, E. Wolf, noted that the word \'naturale\' could be given 17 different meanings and the word \'*ius\'* 15, so that the expression could, in theory, have no less than 255 different meanings. On a more serious note, already in 1190, the canonist Huguccio warned us: "Note that not all the examples of ius naturale given here refer to the same meaning of ius naturale; therefore a prudent reader will carefully discerns which example refers to which meaning" (Huguccio, 1190). - [Law as described, law as lived] [We will concentrate on] **analysing the thoughts of the great (known) authors on natural law**. It is usually their writings that have been preserved for several centuries, sometimes several millennia. However, one should not conclude that the views expressed by these authors necessarily reflected those of the people living in their time. Imagine the reaction of Kant\'s contemporaries if they were told that he was supposed to represent their worldview, or your own if you assumed that the thought of François Ost could account for your conception of law. More importantly, these texts are **exclusively written by Western men**, [a double bias that should be kept in mind]. For the students who are interested in the (lack of) place of women in Western philosophy, one could recommend this book: R. Penaluna, *How to Think Like a Woman: Four Women Philosophers Who Taught Me How to Love the Life of the Mind*, Grove Press, 2023. As for non-western views on philosophy, there is obviously a lot to be said and making the link with the questions we will be dealing with in this class would be extremely interesting but goes (for the moment) beyond the ambition of this syllabus. **[Part I: Natural law in the history of legal ideas]{.smallcaps}** While some authors distinguish between two major periods in the history of natural law: antiquity (classical natural law or classical jusnaturalism) and the modern era (modern natural law or modern jusnaturalism), it seems more relevant to us to add the pivotal medieval period (medieval jusnaturalism). As S. Goyard-Fabre writes, natural law has its roots in three philosophical paradigms: the order of the world (cosmos), the law of God (divine will) and the reason of man (human reason)[^4^](#fn4){#fnref4.footnote-ref}. **[Chapter 1. Classical Natural Law ]** Western law undoubtedly has its oldest source in antiquity, both Greek and Roman. The emergence of the Greek cities (and Athens in particular) on the one hand, and the emancipation of Rome on the other, laid the foundations of the two key concepts of modern legal orders in the West: democracy and the rule of law. The paradigms of the Greek *nomos* and the Roman *ius* developed in different directions, the former confronted with the substantial idea of justice and focused on an ethical reflection linked to politics as popular sovereignty, within the framework of a public experience of social ordering without legal specificity, the latter focused on legality and framed by a formalism entrusted to a rigorous and powerful science. These two paradigms are reflected in the sources that have come down to us: while Roman law was the subject of a genuine legal science, as attested by the numerous writings available to us today, the greatness of Greek writings in terms of philosophy and reflection on politics and justice contrasts with the poverty of what is known as works of legal scholarship. It is difficult to name a single major Greek legal treatise or a single person who worked in Athens as a legal adviser or professor of law. In fact, [the Greeks had no word for legal theory and seem to have used the same word (*dikaion*) for law or justice, whereas the Romans distinguished between *jus* (right) and *justitia* (justice).] 1. **The Greeks** It is of course no coincidence that the issue of natural law came up at the same time as the development of Western philosophy and the birth of democracy. As Leo Strauss wrote, \"Where there is no philosophy, there is no knowledge of natural right as such\"[^5^](#fn5){#fnref5.footnote-ref}. a. **[The discovery of natural law]** **The turning point that interests us arises around the 6^th^ and 5^tn^ centuries BCN.** It is extremely difficult to put ourselves back into this context, where a radically different worldview prevailed. In the first Greco-Roman societies, the social foundation was less the individual than the family, subject to the unique authority of the paterfamilias, a figure that was both political and religious. Worship of ancestors prevailed: what is ancestral is good, the law is revealed rather than adopted, the same word (custom) designates nature as well as animals and men. However, a double mutation took place, of an intellectual and political nature. On the intellectual level, the mythical narrative gradually gave way to a discourse based on Reason. The question of good and evil, right and wrong, is not imposed by an external authority but must be understood by reason. The concept of nature (and, subsequently, of that which is not natural, which gives access to the question of the ideal) appears and is an indispensable condition for the emergence of philosophy, political science and natural law: universal principles must be identified, the traditional authority of the ancestors and gods is questioned and the distinction, already mentioned in the introduction, emerges between nature (for natural beings) and convention (for human societies). Politically, a new form of organisation emerges: the cities, which are based on the authority of the law. This was the age of the great legislators like Dracon (end of the 7^th^ century BC) or Solon (6^th^ century BC) in Athens and the first efforts to write down rules in a permanent and public form (even if they are still called *thesmoi* and not *nomoi*). The advent of the Athenian democratic regime in the 5^th^ century accentuated the phenomenon: the law, which had become *nomos*[^6^](#fn6){#fnref6.footnote-ref}, became the common work of the people. This is the advent of autonomy understood literally (*auto-nomia*, the fact of giving oneself one\'s own law). The almost sacred status accorded to laws by the Greeks is illustrated by the passage in Herodotus in which Demaratus is said to have replied to Xerxes that, for the Spartans, the law is \'an absolute master\', more feared than the Persian subjects fear their King. In a famous passage of his *Orations against Timocrates*, Demosthenes relates the example of the Locrians: **In such a configuration, where authority refers to the order of discourse and speech (*logos*) and where law is the fruit of deliberation, two options are possible: either one considers that norms are only the result of the will of those who adopt them, and therefore a purely conventional product, or one considers that there exists a certain** pre-ordained **harmony** of things, a certain natural order that human beings, endowed with logos, will be able to identify and, at the end of a reasoned debate, will be able to transpose into legal rules. The first option will be that of the sophists and it tends to negate natural law (at least insofar as it would mean something other than the rule of the strongest). The second option was adopted by Socrates, Plato and Aristotle in reaction to the scepticism of the sophists: it gave rise to the first theories of natural law. Before turning to the sophists, a conversation between the great statesman Pericles and Alcibiades, who was a disciple of Socrates, introduces the debate on the link between law and justice. - *A first exchange on law and justice* **Discussion between Pericles and Alcibiades** *Alc.* Please, Pericles, can you teach me what a law is? *Per.* To be sure I can. *Alc.* I should be so much obliged if you would do so. One so often hears the epithet "law-abiding" applied in a complimentary sense; yet, it strikes me, one hardly deserves the compliment, if one does not know what a law is. *Per.* Fortunately there is a ready answer to your difficulty. You wish to know what a law is? Well, those are laws which the majority, being met together in conclave, approve and enact as to what it is right to do, and what it is right to abstain from doing. *Alc.* Enact on the hypothesis that it is right to do what is good? or to do what is bad? *Per.* What is good, to be sure, young sir, not what is bad. *Alc.* Supposing it is not the majority, but, as in the case of an oligarchy, the minority, who meet and enact the rules of conduct, what are these? *Per.* Whatever the ruling power of the state after deliberation enacts as our duty to do, goes by the name of laws. *Alc.* Then if a tyrant, holding the chief power in the state, enacts rules of conduct for the citizens, are these enactments law? *Per.* Yes, anything which a tyrant as head of the state enacts, also goes by the name of law. *Alc.* But, Pericles, violence and lawlessness---how do we define them? Is it not when a stronger man forces a weaker to do what seems right to him---not by persuasion but by compulsion? *Per.* I should say so. *Alc.* It would seem to follow that if a tyrant, without persuading the citizens, drives them by enactment to do certain things---that is lawlessness? *Per.* You are right; and I retract the statement that measures passed by a tyrant without persuasion of the citizens are law. *Alc.* And what of measures passed by a minority, not by persuasion of the majority, but in the exercise of its power only? Are we, or are we not, to apply the term violence to these? *Per.* I think that anything which any one forces another to do without persuasion, whether by enactment or not, is violence rather than law. *Alc.* It would seem that everything which the majority, in the exercise of its power over the possessors of wealth, and without persuading them, chooses to enact, is of the nature of violence rather than of law? *Per*. To be sure: At your age we were clever hands at such quibbles ourselves. It was just such subtleties which we used to practise our wits upon; as you do now, if I mistake not. *Alc*. Ah, Pericles, I do wish we could have met in those days when you were at your cleverest in such matters. ([Xenophon]{.smallcaps}, *The Memorabilia*) What is a law, asks Alcibiades? The wise Pericles, who played a central role in the democratic life of Athens, does not hesitate for long: the law is the norm that has been approved by the majority of the citizens. At the request of the young Athenian, Pericles then confirms that the commands adopted by a few in an oligarchic regime or by a dictator in a tyrannical regime also deserve the name of \'laws\'. It is then that Alcibiades begins his sleight of hand, in a style that neither the sophists nor Socrates would have disavowed, by asking Pericles whether what characterises illegality is not the situation in which the stronger forces the weaker to do what he wishes. This is indeed the opinion of Pericles, which allows the mischievous Alcibiades to go back up the chain of political regimes and suggest that the decision adopted by the assembled people without the consent of a minority (the rich) is more like violence than law. This seemingly light-hearted exchange already raises fundamental questions in the debate that would oppose positivists and jusnaturalists many centuries later: is it enough for a text to have been adopted in accordance with the procedures in force for it to be qualified as a law (the formal criterion of legality), or is it necessary to look at the legitimacy of this law, or even its content, by verifying whether it is supported by its recipients? Should a distinction be made between law and justice? Ironically, Alcibiades was elected ten years after the death of his tutor (in 429 BC) but, denounced for a scandal, was forced into exile a few years later and decided to join the camp of Athens\' sworn enemy: Sparta and its authoritarian regime. b. [The sophists] Pericles has been briefly mentioned: his reign ended with his death and also marked the beginning of the end of the Athenian Golden Age. Externally, Athens lost the Peloponnesian War to Sparta in 404 BC. A few decades later, the entire Greek world was defeated by Alexander the Great. Internally, the democratic regime gradually declined and, also in 404 BC, was supplanted by the tyrannical regime of the \'Thirty\', with the support of Plato\'s uncle Critias. A few years later, Socrates was sentenced to death at a time when, in the words of Cicero, **Athens had more tyrants than a tyrant has bodyguards.** It was in this disillusioned context that the theories developed by the sophists gained popularity. Often itinerant, they taught the art of rhetoric in the cities they visited. Sometimes accused of cynicism, even amoralism, it was their insistence on the distinction between nature (*phusis*) and convention (*nomos*) that provoked the reaction of the first great thinkers of natural law. The opposition between these notions creates a real separation between the natural paradigm of law (and justice) on the one hand, and the law of human origin on the other. Struck by the divergence of the legal systems prevailing in the various Greek cities, the sophists were led to conclude that law and justice were relative and conventional rather than universal and timeless. The most moderate sophists, such as Protagoras or Antiphon, illustrate this relativism. Thus, for the former, what is true is what appears to be so to each person and what is just is what appears to be so to each city. In terms that were precursors of legal positivism, Antiphon considered that justice consists (only) in the fact of not transgressing any of the rules accepted by the city. He also wrote that legal provisions are established by convention, while the rules of nature are necessary. Such a conception does not call into question the respect due to laws, but cuts off any access to a transcendent justice that would legitimise their content. However, Plato presents more subversive sophists, namely Callicles and Thrasymachus, who go as far as questioning the established order. Their reasonings are quite different from each other. - *Dialogue between Socrates and Callicles* *Calliclès*. 483 « (...) However the law makers to be sure are the weaker and more numerous part of mankind. It is with a view therefore to themselves and their own interest that they frame their laws and bestow their praises and their censures ; and by way of frightening the stronger sort of men who are able to assert their superiority, in order that they mayn't assert it over them, they tell them that self-seeking is foul and unjust, and that this is what wrong doing consists in, trying namely to get the advantage over one's neighbours; for they are quite satisfied no doubt, being the inferiors themselves, to be on an equality with the rest. Such then is the reason why seeking to get more than the mass of mankind is conventionally styled unjust and foul, and why they call it doing wrong : whereas the truth is, in my opinion, that nature herself shows on the other hand that it is just that the better should have more than the worse, and the abler than the less able. And it is plain in many instances that this is so, not only in all the other animals, but also in mankind in entire states and races, that right I mean is decided to consist in this, that the stronger should bear rule and have the advantage over the weaker. For by what right did Xerxes invade Greece, or his father Scythia? or in any other of the ten thousand similar cases of the kind that might be produced? No, no, these men no doubt follow nature in acting thus, aye by my faith and law too, the law of nature ; not however I dare say that which we frame by way of moulding the characters of the best and strongest of us, whom we take from infancy, and taming them like lions by spells and conjuring tricks reduce them to abject slavery, telling them that they must be content with their fair share and that this is the meaning of fairness and justice. But I fancy when there arises a man of ability he flings off all these restraints and bursts them asunder and makes his escape ; and trampling under foot all our written enactments and juggleries and spells and laws, clean against nature every one of them, our would-be slave rises up against us and shows himself our master, and then natural justice shines forth in its true light ». ([Plato]{.smallcaps}, *Gorgias*) Cherephon and Socrates go to Callicles' house, to meet a famous rhetorician, Gorgias. A long discussion ensues, which ends up pitting Socrates against Callicles. According to Callicles, positive laws have been adopted by the majority to protect the weakest: they create an artificial equality and make people believe that it is unfair to possess more than others. On the contrary, according to him, nature shows that it is fair for the best to have more than the worst and for the most powerful to have more than the weakest. Some societies have confirmed that justice dictates that the stronger should rule over the weaker. Callicles thus calls for the moment when a man will revolt against what is understood to be the Athenian democratic regime in order to impose his will (and thus a dictatorship), so that the \'law of nature\' will shine \'in all its glory\'. At first sight, the sophist does not condemn the notion of natural law: on the contrary, he glorifies it and regrets that positive law, of purely conventional origin, departs from it. Callicles\' natural justice, however, is less akin to the values expressing a higher ideal of justice, as theorised by the thinkers of natural law (with the exception of Hobbes), than to a Darwinian description of nature: the law of the strongest, which could be qualified, if not as *im*moral, then at least as *a*moral. In any case, we know what Pericles thought about calling a law the result of the will of the strongest. For Callicles, therefore, there is a clear incompatibility between natural law and positive law as it governs the Athenian democratic regime which, contrary to what is dictated by nature, imposes equality between men (in reality, between citizens)[^7^](#fn7){#fnref7.footnote-ref}. - *Dialogue between Thrasymachus and Socrates* *Thrasymachus.* « Because you fancy that the shepherd or neatherd fattens or tends the sheep or oxen with a view to their own good and not to the good of himself or his master; and you further imagine that the rulers of states, if they are true rulers, never think of their subjects as sheep, and that they are not studying their own advantage day and night. Oh, no; and so entirely astray are you in your ideas about the just and unjust as not even to know that justice and the just are in reality another's good; that is to say, the interest of the ruler and stronger, and the loss of the subject and servant; and injustice the opposite; for the unjust is lord over the truly simple and just: he is the stronger, and his subjects do what is for his interest, and minister to his happiness, which is very far from being their own. Consider further, most foolish Socrates, that the just is always a loser in comparison with the unjust. First of all, in private contracts: wherever the unjust is the partner of the just you will find that, when the partnership is dissolved, the unjust man has always more and the just less. Secondly, in their dealings with the State: when there is an income-tax, the just man will pay more and the unjust less on the same amount of income; and when there is anything to be received the one gains nothing and the other much. (...) And thus, as I have shown, Socrates, injustice, when on a sufficient scale, has more strength and freedom and mastery than justice; and, as I said at first, justice is the interest of the stronger, whereas injustice is a man's own profit and interest ». ([Plato]{.smallcaps}, *Republic*) According to Plato, Socrates had been invited to Cephalus\' house, together with the latter\'s sons and the sophist Thrasymachus. Each explains his conception of justice. Polemarchus quotes a definition of justice that he borrows from Simonides and that will often come back during the course (in a somewhat different form): justice is giving to each one his/her due. According to Polemarchus, giving everyone his or her due consists in doing good to his friends and harm to his enemies. Following his favourite method (the famous Socratic maieutic), i.e. a long series of questions to which the interlocutor answers and gradually realises his mistake, Socrates nevertheless convinces the son of Cephalus that justice cannot require harm to be done to one's enemies. Thrasymachus then gets angry and explains his conception of justice: according to him, the rulers only have their personal interest in mind and it is never the righteous who prevail. On the contrary: those in power will present as just that which benefits them. In other words, Thrasymachus argues, it is always more profitable to be unjust than to be just: this is true both in private transactions and in public affairs, where honest taxpayers will always pay more taxes than those who try to circumvent their tax obligations. For Thrasymachus, the legal discourse claims to aim at the common good but, in reality, it tends to protect the interest of those in power: the conventional rule will therefore necessarily reflect not the \'right\' solution resulting from a rational discourse but will serve the arbitrariness of power. It is difficult to summarise Socrates\' very long answer, which, as one might expect, consists of innumerable questions, logically linked (or seemingly linked) to the final conclusion. After convincing Thrasymachus that justice is indeed a virtue and injustice a vice, Socrates sets out to demonstrate that injustice causes dissension among men, whereas justice maintains peace, so that the former will limit freedom of action more than the latter, since a band of criminals must necessarily demonstrate a certain justice among its members in order to triumph. The sophist admits that it is the same with a single man, as injustice renders him incapable of action, creating discord within him and turning him into his own enemy. Socrates then leads Thrasymachus to admit that the soul, whose function is to supervise, command, and deliberate, cannot fulfil its function if it is deprived of its own virtue. Once the sophist has accepted that justice is a virtue of the soul and injustice a vice of the soul, he cannot but recognise that the just man will live well, and the unjust man badly, that the one who lives well is happy and the one who lives badly is unhappy, and that he does not profit from being unhappy but from being happy. And Socrates concludes: \"Never, therefore, divine Thrasymachus, is injustice more profitable than justice\". Socrates and, after him, Plato and Aristotle, tried to replace the opposition *phusis/nomos* with the alliance between reason and law, *logos* and *nomos*, and to demonstrate that Reason can identify a normative model of justice that is not purely contingent. At the heart of Socrates\' position lies the not unidealistic conviction that those who govern do not seek their own interests but the interests of those they govern and, more broadly, the common good. Socrates\' respect for human law led him to accept a manifestly unjust death sentence, having been accused of corrupting youth and not recognising the gods of the state. He thus offers the first and most tragic example of how natural law will, far more often than not, play a role in legitimising positive law rather than challenging it. Like his master, Plato (427-347) protested against the positions of the sophists: **the right way of life is not that which is pleasurable or corresponds to instincts, but that which tends towards the perfection of human nature: excellence and virtue. This perfection of human nature includes the ultimate social virtue: justice, which consists in giving to each one what is due to him and** is the harmony proper to the hierarchical order required by nature**. Like the Good, Justice belongs to the world of ideas that are only accessible in their purity to those who have managed to emerge from the cave. If law is inscribed in the nature of things and the order of the world, society cannot be egalitarian, so that a democratic regime, which postulates equality, necessarily goes against natural law. The best government is therefore the perfect Republic, led by philosopher-kings who are responsible for making laws. The founder of the Academy cannot be given here the full attention he deserves. Suffice it to quote the famous phrase of the philosopher, logician and mathematician Alfred Whitehead: "The safest general characterization of the European philosophical tradition is that it consists of a series of footnotes to Plato\".** c. [Aristotle] (-384-322) - *A few words about Aristotle and his philosophy* Aristotle was born in Stagira in 384BC, which earned him the nickname \"Stagirite\". His father, Nicomachus, was a physician and friend of the Macedonian King Amyntas III. In -367, Aristotle went to Athens and entered Plato\'s Academy at the age of 17. He remained there until Plato\'s death, i.e. almost 20 years, and in 347BC left Athens to settle in Asia. He then became an advisor to King Philip II of Macedonia, who had destroyed Stagira but later rebuilt it in honour of Aristotle. Some say that Aristotle was even the tutor of Philip II\'s son, Alexander the Great. After the war of Chaeronea in 338 BC, the Greek cities became subject to the Macedonian empire and, in 335 BC, Aristotle returned to Athens where he founded the Lyceum, named after the gymnasium where he taught. Indeed, his status as a foreigner did not allow him to own a place to establish his school. After the death of Alexander the Great in 323BC, Aristotle took refuge in Chalcis (where his mother came from). On leaving Athens for the second time, it is believed that he said that he did not want the Athenians to commit a second crime against philosophy (in reference to the death sentence passed on Socrates). Before briefly discussing Aristotle\'s philosophy[^8^](#fn8){#fnref8.footnote-ref} and analysing his texts, it is worth recalling that Greek thinkers were very much tied to orality, so that their writings cannot be read like Descartes\'. Aristotle\'s writings, even more than Plato\'s, must be understood as lecture notes intended to be read aloud and discussed with his listeners. His texts were moreover collected nearly three centuries later by Andronicos of Rhodes, and classified and named by him. We should therefore not expect to discover a \'philosophical system\' as the Kantian work would be. Nevertheless, Aristotle\'s work, at least what has come down to us[^9^](#fn9){#fnref9.footnote-ref} , is incredibly rich: the philosopher writes on logic, physics, biology, aesthetics, ethics, but also engages in botanical studies, even going so far as to study the mating habits of octopuses. Aristotle\'s influence is so immense that in the Middle Ages he was called \'the philosopher\' (\'philosophus\') without having to specify who was meant. He thus had nothing to envy his master, Plato, of whom he said: \"Plato is dear to me, but the truth is dearer still\". To distinguish the two philosophers, it is often said - in a caricatured way, no doubt - that Plato has his eyes turned towards the sky (and his famous \'world of ideas\') whereas Aristotle has his feet on the ground, in order to emphasise the idealist character of the former\'s philosophy (truth results from reflection) and the empirical character of the latter\'s approach. For Aristotle, theory must always be based on empirical investigations, especially when it comes to human issues. Thus, the study of dozens of political regimes led him to conclude that the best system of political organisation is the city and the best regime is a democracy from which the poorest are excluded (who do not have enough time for political matters and the development of virtue) and where magistrates are chosen on their merits. Aristotle distinguishes between the irrational and rational parts of the soul and, within the latter, a scientific and a calculating/deliberative part. Scientific reason proceeds by syllogism or induction and tends to establish, by demonstration, things that are necessarily what they are (like mathematics). This cannot be the object of \'calculating\' reason, whose virtue is *phronesis*, because \'no one deliberates on things that cannot be otherwise than what they are\'. Whereas Plato believed that judges should literally follow written laws, Aristotle asserted that the rule cannot foresee everything, nor account for its application, and considered that the function of judging required *phronesis*, which is that quality of the man of action that enables him to adapt his decisions to the circumstances, without losing sight of the ends pursued by the rule. However, this will be forgotten centuries later when, under the influence of the scientific revolution, legal scholars became convinced that law could be the subject of absolute certainty and that its science was, in Aristotle\'s terms, the scientific part of the soul. Let us recall that Aristotle\'s philosophy is the archetype of teleological thinking: each being has a goal (telos), the pursuit of which allows the fulfilment of its nature and contributes to the preordained harmony of things, only human beings being capable of grasping this natural order once they are endowed with logos. Two concepts can be further clarified to fully grasp this teleological conception: the potency/act distinction and the theory of causes, already mentioned in the introduction. The expression \"in potency\" refers to a modality of being in a potential state, whereas the act aims at the realisation of this state. Thus, the embryo is a potential human being and its humanity is gradually actualised during gestation until birth. Similarly, the egg is a potential chicken, just as the rock is a potential statue that will only become actualised under the hands of the sculptor. Aristotle also distinguishes four types of causes, of which only two will be of particular interest to us, namely the final cause and the efficient cause. In two words, the *material* cause refers to what a thing is made of, its substance (*hulè*, e.g. wood for the table, stone for the statue), whereas the *formal* cause refers to the essence of this thing, which makes it specific (*morphè*). Aristotle\'s hylemorphic theory amounts to saying that everything is made up of matter and form: for the human being, it is his body (made of flesh and bones) and his soul (the vital principle) that make him specific. The *efficient* cause is undoubtedly the one that comes closest to the notion of causality as we understand it today since it refers to the mechanical notions of cause and effect: it is the cause of change, which produces, destroys or modifies the thing. Finally, the most important cause as far as we are concerned is the *final* cause: what every being tends towards, what it is in potency and is called to become in act, in other words its nature. The final cause of every human being is to become a virtuous, justice-loving citizen. This notion is at the heart of the philosophy of the man whom some would consider to be the true father of natural law. - *The origin of the society* "He who thus considers things in their first growth and origin, whether a state or anything else, will obtain the clearest view of them. In the first place there must be a union of those who cannot exist without each other; namely, of male and female, that the race may continue (...) Out of these two relationships between man and woman, master and slave, the first thing to arise is the family (...). But when several families are united, and the association aims at something more than the supply of daily needs, the first society to be formed is the village. (...) When several villages are united in a single complete community, large enough to be nearly or quite self-sufficing, the state comes into existence, originating in the bare needs of life, and continuing in exist- ence for the sake of a good life. And therefore, if the earlier forms of society are natural, so is the state, for it is the end of them, and the nature of a thing is its end. For what each thing is when fully developed, we call its nature, whether we are speaking of a man, a horse, or a family. Besides, the final cause and end of a thing is the best, and to be self-sufficing is the end and the best. Hence it is evident that the state is a creation of nature, and that man is by nature a political animal. And he who by nature and not by mere accident is without a state, is either a bad man or above humanity; he is like the "Tribeless, lawless, hearthless one," whom Homer denounces---the natural outcast is forthwith a lover of war; he may be compared to an isolated piece at draughts. Now, that man is more of a political animal than bees or any other gregarious animals is evident. Nature, as we often say, makes nothing in vain, and man is the only animal whom she has endowed with the gift of speech (*logos*). And whereas mere voice is but an indication of pleasure or pain, and is therefore found in other animals (for their nature attains to the perception of pleasure and pain and the intimation of them to one another, and no further), the power of speech is intended to set forth the expedient and inexpedient, and therefore likewise the just and the unjust. And it is a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the like, and the association of living beings who have this sense makes a family and a state (...) But justice is the bond of men in states, for the administration of justice, which is the determination of what is just, is the principle of order in political society". ([Aristotle]{.smallcaps}, *Politics*) First of all, we find in this text Aristotle\'s empirical method: in order to observe properly, we must go back to the origin of things and carefully follow their development. As far as the origin of society is concerned, it lies in the coming together of two people, which gives rise to a family. When families live together, a village is created, and finally a city-state emerges. The obvious conclusion for Aristotle is that the state is a fact of nature and not, as the sophists (or, much later, the social contract theories) might argue, the pure result of a convention. In other words: man is a *political animal*. In the background, we perceive the notions already mentioned: the first associations are potential states, which will gradually become cities, and men are potential citizens. This is their final cause, their nature, to the extent that a man who, by choice, refuses to live in society can only be considered inferior\... or superior to the human species. Perhaps it is in these notions of the \'potential\' state and the final cause that we must seek the explanation of the apparent paradox whereby Aristotle first describes the progressive constitution of cities before saying that this is by nature prior to the family and to each of us individually[^10^](#fn10){#fnref10.footnote-ref}. Aristotle insists that **man** is [not just a social being], like bees, **but a political being**, which can be explained by the fact that **nature**, which does nothing in vain (which reminds us in passing of the teleological conception), [has endowed man with the logos that enables him to conceive of right and wrong, justice and injustice], concepts that are at the heart of political organisation: \"the virtue of justice is of the essence of civil society\" and \"the administration of justice is the very order of the political community\". We can already see here the fundamental link established by the Greeks between politics and justice where, in our modern conceptions, we carefully -- although not always successfully - tend to distinguish between political power on the one hand, and judicial power on the other. Although Aristotle deals with justice in several places in his work, it is undoubtedly in Book V of the Nicomachean Ethics that he devotes his most important pages to it. A first observation is that his reflection on justice is part of a more general reflection on morality and ethics, which shows that, for Aristotle, these issues are inseparable. Aristotle\'s moral theory is based on the idea that things tend towards the good and that the ultimate good is happiness (*eudaimonia*, i.e. a definitive state that can only really be achieved at the end of one\'s life). The virtues that are indispensable for the realisation of happiness are courage, temperance, kindness, friendliness, but also justice. For Aristotle, virtue is neither a passion (emotional state) nor a (innate) but a habit, a way of reacting to the passions: it is worked on, made concrete. What is new with the Stagirite is that he conceives these virtues in a relative rather than absolute way, as being a middle ground to be sought between excess and defect: thus, courage is situated somewhere between cowardice and recklessness. It is clear that this is not a mathematical equidistance, since courage is closer to recklessness than to cowardice. Likewise, generosity lies between greed and prodigality. Justice is peculiar in this respect: while Aristotle announces at the beginning of Book V that his objective is to determine what extremes is justice the mean between, it is easy to understand that, if the lack of justice can be assimilated to injustice, it is difficult to see what would be an \"excess\" of justice[^11^](#fn11){#fnref11.footnote-ref} , or a man who is \"too\" just. Aristotle will later specify that just action holds the middle ground between the injustice that one inflicts (by taking too much) and that which one suffers (by receiving too little): so injustice is both excess and defect. In any case, like all virtues, justice must be understood less in its essence (potency) than in its actualization (act). - *The notion of justice* "Let us then ascertain in how many different senses we call a man unjust. Firstly, he who breaks the laws is considered unjust, and, secondly, he who takes more than his share, or the unfair man. Plainly, then, a just man will mean (1) a law abiding and (2) a fair man. A just thing then will be (1) that which is in accordance with the law, (2) that which is fair; and the unjust thing mill be (1) that which is contrary to law, (2) that which is unfair. (...) We found that the lawbreaker is unjust, and the law-abiding man is just. Hence it follows that whatever is according to law is just in one sense of the word. And this, we see, is in fact the case; for what the legislator prescribes is according to law, and is always said to be just. (...) Justice, then, in this sense of the word, is complete virtue, with the addition that it is displayed towards others. On this account it is often spoken of as the chief of the virtues, and such that "neither evening nor morning star is so lovely;" and the saying has become proverbial, "Justice sums up all virtues in itself." (...) The injustice which we have already considered corresponds to unlawful. But since unfair is not the same as unlawful, but differs from it as the part from the whole (for unfair is always unlawful, but unlawful is not always unfair), unjust and injustice in the sense corresponding to unfair will not be the same as unjust and injustice in the sense corresponding to unlawful, but different as the part from the whole ; for this injustice is a part of complete injustice , and the corresponding justice is a part of complete justice. We must therefore speak of justice and injustice, and of that which is just and that which is unjust, in this limited sense. (...) But of justice as a part of virtue, and of that which is just in the corresponding sense, one kind is that which has to do with the distribution of honour, wealth, and the other things that are divided among the members of the body politic (for in these circumstances it is possible for one man's share to be unfair or fair as compared with another's) ; and another kind is that which has to give redress in private transactions. The latter kind is again subdivided; for private transactions are (1) voluntary, (2) involuntary. (...) For in distribution all men allow that what is just must be according to merit or worth of some kind, but they do not all adopt the same standard of worth; in democratic states they take free birth as the standard, in oligarchic states they take wealth, in others noble birth, and in the true aristocratic state virtue or personal merit. We see, then, that that which is just is in some sort proportionate. For not abstract numbers only, but all things that can be numbered, admit of proportion; proportion meaning equality of ratios, and requiring four terms at least. (...) This then is one form of that which is just. It remains to treat of the other form, viz. that which is just in the way of redress, the sphere of which is private transactions, wheter voluntary or involuntary. (...) But that which is just in private transactions is indeed fair or equal in some sort, and that which is unjust is unfair or unequal; but the proportion to be observed here is not a geometrical proportion as above, but an arithmetical one" ([Aristotle,]{.smallcaps} *Nicomachean Ethics*) Starting from the notion of the unjust man, Aristotle distinguishes between those who do not respect the law, on the one hand, and those who take more than their share, on the other hand. Therefore, the just man is law-abiding and does not take more than his share. Let us note at the outset that the French translation refers to the notion of "equality" to define what a just man is (« Le juste donc, est ce qui est conforme à la loi et ce qui respecte l'égalité, et l'injuste ce qui est contraire à la loi et ce qui manque à l'égalité »). This could be confusing from our modern legal understanding. Despite Athenian democracy, Greek thought was fundamentally unequal: women, children and foreigners, and even more so slaves, were not put on the same footing as the citizens of the city. We will come back to this. From this, Aristotle distinguishes two types of justice: the first, a complete virtue, consists in respecting the law and the second, a particular virtue, in respecting equality. Of universal justice, Aristotle writes that it is a \" complete virtue, with the addition that it is displayed towards others\" so that it is considered \"the chief of the virtues\" and that \"neither evening nor morning star is so lovely\". It is \"a complete virtue" in the highest degree because it is directed at others, it accomplishes what is advantageous to another, either to a leader or to a member of the community. Let us note already that the first form of justice according to Aristotle is that which consists in respecting the law: we find the Greek attachment to respect for the law and the idea that, with the possible exception of Antigone[^12^](#fn12){#fnref12.footnote-ref}, natural law according to the Greek philosophers was not thought of in opposition to positive law. Laws, which are adopted by the people of the city, by men whose very nature leads them to become virtuous citizens, are presumed to be just and in harmony with natural justice. However, we will see that Aristotle insists that a mechanical application of laws can lead to great injustice, which requires recourse to the notion of equity/fairness. As for particular justice, it includes distributive justice, which consists of giving each person what he or she is entitled to[^13^](#fn13){#fnref13.footnote-ref} according to his or her merits, and corrective justice, which aims to restore the original balance, by redressing the imbalance resulting, for example, from the poor performance of a contract or the harm caused to someone in an extra-contractual matter. While the latter follows an *arithmetical formula* (we put back in the pristine state), distributive justice is conceived according to a *geometrical proportion*. Corrective justice, which seems to refer more to the office of the judge (as we understand it today), tends to re-establish the pre-existing balance, even if this balance was not fair. It does not matter, Aristotle continues, whether it is a good man who did wrong to a bad person, or the other way around because the law is concerned only with the "difference in wrongs\" and restores equality in such a way that what the parties possess neither increase nor decrease. It is subdivided into a justice which concerns relationships contracted voluntarily (sale, deposit, rental), and a justice which concerns non-consensual matters (theft, adultery, murder, assault). In our modern legal language, the exercise of corrective justice could be translated as the response that a judge could give when seized of an action for extra-contractual liability (involuntary transaction in Aristotle\'s terms) or contractual liability (voluntary transaction). Distributive justice involves, writes Aristotle, a "proportion meaning equality of ratios, and requiring four terms at least". Thus, someone who is twice as deserving could only be granted twice as much, otherwise the rule of proportionality would be violated. Similarly, the work of an architect in comparison with the work of a shoemaker should be paid for in the same proportion as the difference between the price of a house and the price of a pair of shoes. In mathematical form, this gives : [Price of a house = architectural work] Price of a pair of shoes = work of a shoemaker The idea of proportion is therefore to make different things commensurable. Aristotle goes on to say that money was invented precisely for this purpose. Since it constitutes the measure of everything, he writes, it makes it possible to establish how many shoes are equivalent to a house. It is indeed a substitute for need set up by convention, which explains why its name, \"*nomisma*\", derives not from nature but from the law (*nomos*). In our modern view, this is more of a political matter, since it is a question of determining what is due to each person: it is the political authorities that decide, in principle, how the wealth generated by taxes should be redistributed (through social security, subsidies, etc.). Aristotle\'s essential lesson is that law does not necessarily have to be understood in an abstract and individual way, starting from the subjective rights of each person: on the contrary, justice requires taking into account social relationships. One cannot determine what is due to each person if one does not take into account the situation of the other persons concerned. Since law is first and foremost a way of organising social interaction, it cannot ignore the *relationships* between people. This is a lesson that modern Western law has often lost sight of, but which the growing importance of concepts such as the general principles of law or proportionality imposes to take seriously once again. - *Political justice* "But we must not fail to notice that what we are seeking is at once that which is just simply \[or without any qualifying epithet\], and that which is just in a state or between citizens. Now, this implies men who associate together in order to supply their deficiencies, being free men, and upon a footing of equality, either absolute or proportionate. Between those who are not upon this footing, then, we cannot speak of that which is just as between citizens (though there is something that can be called just metaphorically). (...) We cannot speak (without qualification) of injustice towards what is part of one's self - and a man's chattels and his children (until they are of a certain age and are separated from their parent) are as it were a part of him - for no one deliberately chooses to injure himself; so that a man can't be unjust towards himself. We cannot speak in this case, then, of that which is unjust, or of that which is just as between citizens; for that, we found, is according to law, and subsists between those whose situation implies law, ie., as we found, those who participate equally or fairly in governing and being governed. (...) The term just, therefore, is more appropriate to a man's relation to his wife than to his relations to his children and his chattels, and we do speak in this sense of that which is just in a family; but even this is not the same as that which is just between citizens" ([Aristotle,]{.smallcaps} *Nicomachean Ethics*) Having made the fine points discussed above, however, Aristotle reminds us of the time and context in which he is writing. As mentioned, Greek society was not, even in Athens, an egalitarian society: the Stagirite makes it very clear that the principles of justice mentioned above apply only to citizens, i.e. "men who associate together in order to supply their deficiencies, being free men, and upon a footing of equality, either absolute or proportionate". It is therefore only to citizens that the notion of \'political justice\' applies. With regard to those who do not have this status, there could be no question of political justice properly so called, but only of a kind of justice in a metaphorical sense, read: an ersatz of justice, an attenuated, less binding version of the political justice. This is the case of the relationship between father and child, or between master and slave. The child and the slave belong to the father/master citizen, so they are part of him. However, no one deliberately chooses to be unjust to himself or herself, so this type of relationship cannot be called \'political justice\'. Aristotle\'s justification on this point is obviously no longer convincing today. Aristotle admits that the relationship between husband and wife is of a different nature, so that the justice governing it is close to political justice, but it cannot be equated with it: it is domestic justice or, according to another translation, what "is just in a family". Here too, the Aristotelian distinction is no longer acceptable. This conception promotes inequality, of course, but lawyers to be should note that it respects the logic of the modern legal principle of equality (in the formal sense): the latter requires that persons belonging to the same category be treated in a comparable manner, but also, as is too often forgotten, that different persons be treated differently[^14^](#fn14){#fnref14.footnote-ref}. For the Greeks of the time, however, citizens constituted a category quite distinct from that of other human beings, so that it was justified to treat them differently. Children, for Aristotle, have the *logos* only in potency, its actualisation only operating perfectly when they come of age. Women are endowed with the *logos* but do not have sufficient authority to govern. As for the foreigners, the *barbaros:* the men of the North are brave but hardly intelligent, the Asians intelligent but cowardly, so that only the Greeks have the excellence that justifies their quality of citizens. Finally, in order to justify slavery as a natural institution (and not a conventional one, since all men are born free, as the Roman legal scholars would argue), Aristotle proposes an analogy with the soul and the body: just as the body needs to be commanded by man, so the slave, who has neither the faculty of commanding nor of foreseeing, needs to be commanded by the master, who knows better than the slave what is good for him. This justification of slavery was taken up again, as we shall see, by Thomas Aquinas and then by Sepulveda in the controversy between him and Las Casas in the 16^th^ century concerning the status of the American Indians[^15^](#fn15){#fnref15.footnote-ref}. - *Natural justice and conventional justice* "Now of that which is just as between citizens, part is natural, part is conventional. That is natural which has the same validity everywhere, and does not depend on our accepting or rejecting it; that is conventional which at the outset may be determined in this way or in that indifferently, but which when once determined is no longer indifferent (...) Now, there are people who think that what is just is always conventional, because that which is natural is invariable, and has the same validity everywhere, as fire burns here and in Persia, while that which is just is seen to be not invariable. But this is not altogether true, though it is true in a way. (...) Nor is it hard to distinguish, among things that may be other than they are, that which is natural from that which is not natural but dependent on law or convention, though both are alike variable. In other fields we can draw the same distinction ; we say, for instance, that the right hand is naturally the stronger, though in any man the left may become equally strong. (...) So I say that which is just not by nature but merely by human ordinance is not the same everywhere, any more than constitutions are everywhere the same, though there is but one constitution that is naturally the best everywhere. The terms "just" and "lawful" in each of their several senses stand for universal notions which embrace a number of particulars ; i.e. the acts are many, but the notion is one, for it is applied to all alike" ([Aristotle,]{.smallcaps} *Nicomachean Ethics*) It is only after proposing these reflections that Aristotle finally mentions the notion of \'natural justice\'. Political justice, i.e. the justice that applies to citizens, comprises a subdivision, namely legal justice on the one hand and natural justice on the other. The notion of legal justice does not pose a problem: it is purely conventional positive law, the rule that could have been different but which, once adopted, becomes binding. Thus, it is easy to understand that a political authority can decide that one should drive on the left or on the right, but that, once this choice has been made, it must be respected. Here Aristotle attacks head-on the positions of the sophists. According to them, he writes, all legal rules are a matter of legal justice: if fire burns in the same way in Athens and Persia, it is not the same for legal prescriptions. Now, to say that law is variable "is not altogether true, though it is true in a way". This excerpt is one of the most complicated texts of Aristotle on the subject and has been the subject of many interpretations, not always compatible with each other. The main difficulty lies in the fact that Aristotle seems to admit a certain variability of natural law. He writes that natural things, like positive laws, are subject to change, like the right-handed man who trains to become ambidextrous. The variability of the rules that result from the will of men is easily explained by the fact that there are different forms of government, but, he points out in somewhat cryptic terms, that "there is but one constitution that is naturally the best everywhere". The key seems to lie in the relationship between the universal and the particular: thus, the same universal prescription can be fulfilled in multiple ways. The German philosopher Leo Strauss summarises the Aristotelian theory of natural law as follows: "il y a une hiérarchie universellement valable des fins, mais il n'y pas de règles de conduite universellement valables"[^16^](#fn16){#fnref16.footnote-ref}. What Aristotle even seems to suggest is that justice, a universal idea, is always embodied, concretised and that, rather than reflecting on the idea of justice in the abstract (as Plato would do), it is from these concrete experiences that a reflection on justice should be induced. This variability of natural law is also an effective response to the sophists\' argument that nature is unchanging while law is clearly variable, which demonstrates that there is no natural law; if there is some variability in natural law (and nature), the sophist opposition falls apart. Variability does not imply relativism: there is only one form of government which is everywhere naturally the best\... is this to understand that there is, for each people, or each city, only one form of government which is the best for this people or this city? - *Equity (epikeia)* "(...) that which is equitable, though it is better than that which is just (in one sense of the word), is yet itself just, and is not better than what is just in the sense of being something generically distinct from it. What is just, then, and what is equitable are generically the same, and both are good, though what is equitable is better. But what obscures the matter is that though what is equitable is just, it is not identical with, but a correction of, that which is just according to law. The reason of this is that every law is laid down in general terms, while there are matters about which it is impossible to speak correctly in general terms. Where, then, it is necessary to speak in general terms, but impossible to do so correctly, the legislator lays down that which holds good for the majority of cases, being quite aware that it does not hold good for all. The law, indeed, is none the less correctly laid down because of this defect; for the defect lies not in the law, nor in the lawgiver, but in the nature of the subject-matter, being necessarily involved in the very conditions of human action. When, therefore, the law lays down a general rule, but a particular use occurs which is an exception to this rule, it is right, where the legislator fails and is in error through speaking without qualification, to make good this deficiency, just as the lawgiver himself would do if he were present, and as he would have provided in the law itself if the case had occurred to him. What is equitable, then, is just, and better than what is just in one sense of the word -not better than what is absolutely just, but better than that which fails through its lack of qualification. And the essence of what is equitable is that it is an amendment of the law, in those points where it fails through the generality of its language. (...) fairness, being a sort of justice, and not a different kind of character" ([Aristotle,]{.smallcaps} *Nicomachean Ethics*) Aristotle ends his essay on justice with the question of equity (*epikeia*) and its relation to justice. According to him, "though what is equitable is just, it is not identical with, but a correction of, that which is just according to law". He even goes so far as to suggest that the equitable is superior to the just. However, we must understand his reasoning. Equity is indispensable for the simple reason that the law always lays down a general rule, while particular cases may arise that could not be foreseen. This is not necessarily a failure on the part of the legislator (for which, as we have seen, Aristotle has great respect for) but an inevitable consequence of the unpredictability of human affairs. The legislature has no choice but to determine its rules on the basis of the most frequent cases, but it is always possible that a case may arise which, although it may at first sight fall within the scope of the law, is not intended to be governed by the solution adopted by the legislature. In this case, where the legislator has sinned by oversimplification, one has the right to correct this omission \"just as the lawgiver himself would do if he were present, and as he would have provided in the law itself if the case had occurred to him\". It is in this respect that the equitable would be superior to the legal just, insofar as it corrects it when justified, a more \'tailor-made\' solution, as it were. In other words, the equitable is not superior to the \'absolute\' just, but to the solution that would result from a mechanical application of the law to a case that does not \'fall well\'[^17^](#fn17){#fnref17.footnote-ref}. Fairness, Aristotle concludes, is thus "a sort of justice, and not a different kind of character". It is not certain that Aristotle had judges in mind when he insisted on the need to take *epikeia* into account. In any case, this is certainly another lesson from Aristotle that we would do well to remember: it is impossible for the legislator to foresee everything, so Aristotelian equity/fairness is inescapable. An important clarification: the Aristotelian notion of fairness is not related to his conception of natural justice, except perhaps for the very principle that a law should not be applied to a case that it is clearly not intended to govern. The preferred solution in such a situation is not to adopt a just decision by virtue of universal principles of justice but to identify the intention of the legislator and to try to determine what it would have decided had it been aware of the case. In other words, it is not a matter of counteracting the unjust character of a law (this hypothesis is not even envisaged by Aristotle) but of avoiding the unjust solution that would result from the application to a particular case of a law which, because of its generality, could give the impression that it governs that situation despite not being the intention of the legislator. 2. **The Romans** - *Some background: Greece and Rome\...* In Rome, things evolved differently than in Athens. At first, the law was strongly religious: it was the priests who pronounced the law and ritual had a predominant place. Around the [6^th^ and 5^th^ centuries BC], the *ius* gradually became **secularised** but retained, at least until the third century AD, its particular features: a jurisprudential, casuistic law, marked by ritual and guided by experts. Whereas in Greece, the legal issue was inseparable from the law and politics, the Roman *ius* had the singularity of being built as a technical knowledge that would long remain the prerogative of a restricted group of scholars (aristocrats). The students who followed the Roman law course will remember the system of *responsa* of the pontiffs, i.e. oral answers to questions aimed at determining what the *ius* was in a concrete situation. This development undoubtedly explains the emergence in Rome of an autonomous legal function and a real science of law, absent from the Greek world and which, after the fall of the Roman Empire, would not reappear until the 11-12^th^ centuries. In Rome, between the 2^d^ and 1^st^ centuries BC, the transition from orality to writing led to the creation of a distinct profession of jurists, who were certainly part of the dominant elites, but who were not identified with the public authorities, and who cultivated a more analytical and abstract legal thought, in other words, one that was more independent of religion and politics. The adoption of the legislation of the Twelve Tables, in 451-450 BC, reveals a plebeian will to defeat the aristocratic hegemony of an esoteric *ius* and to replace it with the Greek and democratic paradigm of the *lex/nomos* known to all. The attempt was not successful, however, as the Roman paradigm of *ius* was already sufficiently established: the interpretation and application of the new text soon became the monopoly of the **pontiffs**. During the 4^th^ century, the Roman experience of *ius* as a jurisprudential law constructed by specialists rather than derived from a general law adopted by an assembly (or imposed by a tyrant) was confirmed. The same trend continued with the development of the role of the **praetors**, magistrates of slightly lower rank than the consuls. They gradually developed a system of formulae for action less onerous than the *lege agere*, first granted on a case-by-case basis in disputes between Romans and foreigners before being the subject of a more general edict issued at the beginning of their term. Soon, a proper commercial law emerged (the ***ius gentium***) that was supposed to be shared by all peoples. The 4^th^ and 3^th^ BC also saw the growth of Rome\'s power, along with the political decline of Greece (defeated by the Roman Empire at the Battle of Corinth in 146 BC) which contrasted with its growing intellectual influence on the Romans. In the famous words of Horace: \"Captive Greece has taken her savage conqueror captive and brought the arts to rustic Latium\". Cicero wrote: \"It was not a meagre stream that flowed from Greece to this city, but an abundant river that brought it the arts and the instruments of knowledge\"[^18^](#fn18){#fnref18.footnote-ref}. This influence can be seen both in art (including tragedy and comedy) and in philosophy. In this respect, Plato, Aristotle and the Stoic philosophers had a particular impact on Roman thinkers such as Cicero and Seneca, allowing the question of natural law to enter, eventually, the Roman intellectual landscape. Let us insist, however: with the exception of Cicero, who will not fail to deplore it, the Roman jurists are rather hermetic to the great questions that agitated the Greek thinkers, such as : are all laws of conventional origin or do they have a natural origin? Thus, the reference to natural law and equity in the anonymous text *Rhetoric to Herrenius*, which appeared in the course of the 1^st^ century BC, appears as an almost absolute novelty in Roman language. Law is defined as including "nature, law, custom, precedent, equity, contract". The notion of equity (*aequum*) was not non-existent before but referred to a more flexible application of *civil ius*, more adapted to the cases submitted to the praetors and not to a natural justice. Integrated into the notion of *aequitas*, it will however allow to import (in part) the Greek reflections on justice. It is, however, Cicero\'s work that pays the most homage to these reflections which, let us repeat, were foreign to the DNA of the Roman *ius*, characterised by its formalistic, technical character, having excluded ethical issues in order to favour its autonomy from religion and politics. a. [Cicero] (- 106-43) - *A few words about Cicero and Stoicism* Born in 106 BC to a family of plebeian origin, Marcus Tullius Cicero is often considered one of the greatest classical Latin authors. A Stoic philosopher, his life was not, however, that of a thinker isolated in his ivory tower. In *De Republica*, he wrote, in line with Aristotle, that virtue consists entirely in the uses that one makes of it and that \"the noblest use of virtue is the government of the Commonwealth, and the carrying-out in real action, not in words only, of all those identical theories which those philosophers discuss at every corner". First a lawyer, then a moneylender, he then became actively involved in politics and was elected consul in 63BC, against Catilina, whose coup he foiled shortly afterwards, going so far as to have some of the conspirators executed without a public trial. What will make his glory will also cause his exile since, a few years later, a law is adopted at the instigation of his enemy Clodus, punishing any magistrate having made execute a citizen without preliminary judgment. Amnestied a year later, he came back to Rome, but his return to politics was not a great success. During the political crisis between Caesar and Pompey from 50 BC onwards, Cicero chose the latter\'s side and, after the former\'s victory in 48 BC, decided to withdraw from political life to devote himself to writing. After Caesar\'s assassination, Cicero sided with Octavian and against Mark Antony, for which the latter did not forgive him. When he formed the second triumvirate (with Octavian, by the way) in 43BC, Mark Antony had Cicero assassinated. One cannot present the work of Cicero in a natural law course without mentioning in a few words Stoicism, a current of thought born with Zeno of Kition at the beginning of the 3^d^ century BC who taught under a painted porch (*stoa poikile* or στοὰ ποικίλη, hence the name \"Stoicism\"). It is difficult to summarise its main features, especially as it covers several centuries (up to the Roman emperor Marcus Aurelius) and sometimes very different thinkers, such as Chrysippus or Posidonius of Apamea, whom Cicero did visit in 97 BC. In short, according to the Stoics, philosophy includes logic, natural science and ethics, the latter playing a primordial role. Their thought is materialist (everything is matter, even the soul) and pantheistic: the order of nature, an organic unity in which determinism reigns, is identified with God, considered as a substance immanent to the world. The supreme good is virtue, the ideal of the wise man, which is closely associated with reason (and not with the emotions) and with nature. This is a normative conception of nature, seen not only as an autonomous force that leads to the perfection of beings, but also as a higher intelligence or reason that governs the world as a whole and ensures an intelligible order. Stoic thought is based on the principle that everything in nature must be explained by reason and that every act must be justified by reason. The Stoics conceived of the natural law inherent in humanity as the expression of the divine will that permeates and organises the entire cosmos, defending, in contrast to the Sophists, a radical identification of *nomos* and *phusis*, law and nature. Taking up Pindar\'s verses, Chrysippus wrote that the law (*nomos*) reigns over everything, divine and human, and determines what is good and bad, and sets the criteria for what is just and unjust, commands what must be done and forbids what must not be done. The most important contribution of Stoic thought to the doctrine of natural law, however, lies in the idea of a universal human nature underlying the various social conventions and extending beyond the city: the notion of a natural equality between men was born. This importance is such that some would not hesitate to say that the true founders of the doctrine of natural law are the Stoics. In any case, it is certain that their impact on Roman law (relative) and on medieval Christian thought (substantial) can be explained above all by the role played by Cicero in transmitting their thought. - *About society and the rule of law* *Scipio* "A people, however is not every assemblage of human beings herded together in whatever way, but an assemblage of a multitude united in agreement about law (*iuris* *consensu*) and in the sharing of interests. The first cause of this assembling, however, is not so much weakness as a natural herding together, so to speak, of human beings" ([Cicero]{.smallcaps}, *On the Republic*) "The State without law would be like the human body without mind -- unable to employ the parts which are to it as sinews, blood, and limbs. The magister who administer law, the judges who interpret it -- all of us in short -- obey the law in order that we may be free" ([Cicero]{.smallcaps}, *Pro Cluentio*) Cicero wrote *On the Republic* in 54 BC. The text is in the form of a dialogue between several characters, including the statesman General Scipio, and is about the best form of state (the Roman Republic) and how to run a state well. Cicero, through Scipio, explains that the public thing (*res publica*) is the "thing" of the people. Like Aristotle, he considers that a people is not just a group of human beings but a group gathered around a community of interests, Aristotle would say: a common good. Cicero adds an important clarification: a second condition is necessary, namely a consensus on the law (\"iuris consensu\"), which some translations render as a \"pact of justice\" or \"adherence to the same law\". Later in the text, Scipio insists: who would call a "thing of the people" (a "republic") a "state in which all would suffer the cruel oppression of one, in which there would be no bond of law, no agreement, no will to live together, in which what makes a people would be missing?". This legal bond and this will to live together are therefore at the heart of what makes a republic, the thing of the people. Siding with Aristotle against the sophists, Cicero argues that it is not so much man\'s weakness as a natural instinct that leads him to live in society: man is a political animal. Conversely, the \'consensus on law\' can also give the impression that the foundation of society is more conventional than natural. In the second extract, Cicero gives us one of the first versions of what will become, much later, the notion of the rule of law: laws are the soul of the state, those in power must apply them and all must be subject to them. The law is therefore a guarantee against arbitrariness; a state without law is a state without a soul. In *On the Republic*, as we have seen, Cicero insisted on the link between the republic and the rule of law, disputing that one could call a republic a state in which all would suffer the cruel oppression of one, where there would be no rule of law. The same idea was already present when Demaratus explained to Xerxes that the absolute master of the Spartans was the law. This is the opposite of what we find in Ulpian: *Princeps legibus solutus est*, the prince is above the law, a formula whose spirit we will find centuries later in Machiavelli and which could be the slogan of any dictatorship. It is undoubtedly by this opposite situation that we can understand the apparent paradox stated by Cicero, namely that freedom requires subservience to the law. Indeed, only clear rules known in advance can allow us to act freely, albeit within a certain framework, whereas no freedom can flourish when a tyrant changes the rules at will, thwarting the legitimate expectations of his subjects. - *About natural law* "True law is right reason in agreement with Nature ; it is of universal application, unchanging and everlasting ; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one rule, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge" ([Cicéro]{.smallcaps}, *De Republica*) "Again, though in the reign of Tarquin there was no written law concerning adultery, it does not theref

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