Appendix D: Ancient Approaches to Natural Law 867
Appendix D Ancient Approaches to Natural Law I have critiqued Hume's idea of natural law, but Enlightenment ideas of natural law borrowed, via the humanist and Renaissance emphasis on classical sources, a more ancient vocabulary.1 While the Enlightenment used the language, however, Hume employed it differently from its normal classical application. Whether or not ancient theorists of natural law believed in the activities of deities, they did not see them as incompatible with the law of nature; if deities existed, their activities belonged to nature.2
The idea of a universal law was widely appealing. The early Stoic Zeno reportedly urged people to live according to nature, following "the common law," that is, the law common to all, which he identifies as the pervasive Logos and Zeus.3
For early Stoics, this law involved motivations that yielded perfect behavior, rather than focusing on particular actions.4 In the first century c.e., the Stoic philosopher
Seneca uses "natural law" in various ways;5 in one of these, nature's law makes virtue evident and attractive even to those who disobey it.6 Musonius Rufus claims that 1. Although I have drawn the material in this appendix from material already composed for my commentary on Acts, see in greater detail Grant, Miracle, 19–28.
2. Cf. also poets in Saler, "Supernatural," 41–42.
3. Diogenes Laertius 7.1.88. On divine law meaning living according to nature, see also Epictetus Diatr.
2.16.28; on one law and Logos in the universe, see Marcus Aurelius 7.9. For a full discussion of natural law in Stoicism, see Watson, "Natural Law." For the connotative difference between logos and physis (Nature), see Long, Philosophy, 120, 148–49.
4. Vander Waerdt, "Theory." For Chrysippus (and later for Epictetus as well) humans had some innate ethical knowledge (Jackson-McCabe, "Implanted Preconceptions"). Thus intentions were important (cf.
Seneca Controv. 10.1.9; Hermogenes Issues 61.16–18; 66.12–13; 72.14–73.3; Porphyry Marc. 25.401–2; p. Ber. 2:1).
5. Especially related to human physicality; Inwood, "Natural Law." For the wide variety of understandings of "natural law" in antiquity, see, e.g., Stowers, Rereading of Romans, 109–10.
6. Seneca Ben. 4.17.4.
Appendix D
the law of Zeus orders a person to be "good."7 For Epictetus, "the divine law" summarizes human responsibility before God.8 One epitome of Stoic ethics portrays the law as "right reason," which only the wise person obeys.9
Yet this "natural law" existed in other philosophical circles outside Stoicism,10 as well as among nonphilosophers.11 Socrates recognized universal, unwritten laws observed by people everywhere.12 For Aristippus, if all human laws were repealed, philosophers would keep living as they did.13 For Aristotle, whereas written laws varied, a law based on nature was constant.14
A Hellenistic rhetorician defined as "just" customs on which most of humanity agrees.15 For Cicero, the law of nature implants in people innate religion, including duty to gods, parents, country, and others;16 what is universally agreed throughout humanity is the law of nature.17 Justice must be based not on human opinion but on the law of nature;18 humans share a common sense of justice.19 This law that teaches what is right based on nature is as old as the divine mind, existing long before being written down.20 For Seneca the Elder, unwritten laws are less changeable than writ7. Musonius Rufus 16, p. 104.35–36. Reason is from the gods and enables one to distinguish good from bad (Musonius Rufus 3, p. 38.26–30). A perfect king would embody law in himself (Musonius Rufus
8, p. 64.11–12). Others also opined that kings must have the law of reason within them (Plutarch Uned.
R. 3, Mor. 780C) or that some could embody a living law (e.g., Aristotle Pol. 3.8.2, 1284a [in Bruce, "All
Things," 98n7]; the patriarchs in Philo Abr. 5).
8. Epictetus Diatr. 2.16.27–28.
9. Arius Didymus 2.7.11d, pp. 68–69.1–8; 2.7.11i, pp. 76–77.30–37.
10. In Plato, e.g., Diogenes Laertius 3.8, 86. Porphyry distinguished the law of nature from the law of God (Marc. 25.384–86); the former related to bodily need (Marc. 25.387–88), and the latter was known by the mind (Marc. 25.392–93). Knowing the law of nature helps one ascend to the divine law, which established nature's law (Marc. 27.420–22); they superseded a written law (Marc. 27.422–25). The mind knows the divine law (Marc. 26.409–11; cf. 26.413–14, 417–20; 32.485–88), though it is inaccessible to the impure (Marc. 26.402–3), and the wicked reject it (Marc. 16.272–73). The law of nature teaches deliverance from passion (Marc. 31.484), and one freed from passion has access to divine law (Marc.
26.403–4). Cf. "divine writings" placed in a person (Marc. 9.164–65).
11. Cf. Cicero in Frank, Aspects, 109; Ovid Metam. 15.6; Maximus of Tyre 6.5–6; 11.12 (comparing mind and law; in 27.8 he regards God as pure Mind); even Lucan Bell. civ. 7.1. Cf. in Palestinian Judaism,
1 En. 72:2; 73:1; 74:1; 76:14; 78:10; 79:1–2; 1QM X, 12–13.
12. Xenophon Mem. 4.4.19. Skeptics like Sextus Empiricus would have appealed to exceptions to disprove this thesis.
13. Diogenes Laertius 2.68. The best morality was one not dictated by laws (Virgil Aen. 7.204–25, citing instead self-control and divine custom; Gal 5:23; 1 Tim 1:9). In the golden age, a mythographer could claim, people did right without needing a law (Ovid Metam. 1.89–90).
14. Aristotle Rhet. 1.15.6, 1375ab. Aristotle assigned the universe's rationality to necessity but not design (Saler, "Supernatural," 37).
15. Rhet. Alex. 1, 1421b.36–1422a.2. Cf. the sense of justice common to humanity in Apuleius Metam.
3.8.
16. Cicero Inv. 2.22.65; 2.53.161.
17. Cicero Tusc. 1.13.30.
18. Cicero Leg. 1.10.28. For Cicero, nature was the source of right (Off. passim, e.g., 3.17.72; 3.28.101) and itself equivalent to true law (Leg. 3.1.3); those who obeyed nature's laws would always do right (Off.
1.28.100).
19. Cicero Leg. 1.12.33. Society's common bonds came from nature (Off. 1.16.50).
20. Cicero Leg. 2.4.10.
Ancient Approaches to Natural Law
ten ones.21 For Dio Chrysostom, it is not the laws inscribed on stone but the law of nature, the laws of Zeus, that matter.22 The idea of natural, universal law became so widespread that some Roman legal codes began by distinguishing laws particular to given states from the law of nature (ius naturale),23 that is, the law due to natural reason (naturalis ratio).24 More generally, divine law came to be applied even to days of ill omen25 or heavenly decrees;26 "eternal law" could apply to such natural matters as the sun rising on time.27 It had long been a commonplace that laws of the gods (like burial of the dead) took precedence over laws of the state when the two conflicted.28
Diaspora Jews apparently used the concept of universal law to help shape how they presented their moral convictions.29 Some Diaspora Jews believed that God would establish a common law for all humanity.30 Like Cicero, Philo adopts the Stoic image of universal law of nature, which is essentially identical with reason;31 his Logos governs creation as a law would rule a city.32 Although the law of nature was by normal definition unwritten and universal rather than particular, Philo regarded Moses's law as a written copy of the law of nature.33 Natural law is widespread in most ancient intellectual sources except the rabbis;34 and as I have observed, expectation of a universal ethic appeared even there (though few Gentiles would have included abstaining from food with blood in it). The Stoic idea of natural law also persisted in late antiquity and is evident even in Aquinas.35 Enlightenment thinkers who applied this language to mechanistic rules ruling the system of nature were developing the language in a distinctive direction.
21. Seneca Controv. 1.1.14.
22. Dio Chrysostom Or. 80.5–6. For Dio, humans have an innate knowledge of deity reinforced by nature (Or. 12.27–29, 32). Customs were "unwritten laws" of particular societies (Or. 76.1), but they could differ from universal unwritten laws.
23. Justinian Inst. 1.2.1–2 (tr., 36–37), a later compilation of earlier laws.
24. Gaius Inst. 1.1 (tr., 19–20). In the Hellenistic period, Rhet. Alex. pref. 1420a.26–28 defined law as reason (λόγος) specified by common agreement, a sort of social contract. Stoicism influenced Roman law in looking for a universal, rational basis for law (Jervis, "Law," 635); Remus, "Authority," suggests that in the period of the empire "nature" helped sustain or supplant laws, which had been losing their moral authority.
25. Tacitus Hist. 2.91.
26. Silius Italicus 6.120 (poetic).
27. Lucan Bell. civ. 7.1. Lucan believes that even the Creator is bound by eternal law (Bell. civ. 2.10).
28. Sophocles Antig. 450–57, 913–14.
29. See Sterling, "Universalizing the Particular." Cf. lxx translators in Roetzel, Paul, 52.
30. Sib. Or. 3.757–59.
31. See Horsley, "Law of Nature"; cf. Wolfson, Philo, 1:332–47; Tobin, Rhetoric in Contexts, 114–15.
Koester, Paul and World, 126–42, treats Philo's contribution to natural law as particularly significant.
32. Myre, "Loi." Stoics also emphasized God's rule of the universe as a state (Cicero Fin. 3.19.64).
33. Najman, "Written Copy"; idem, "Authority." Whereas Greek epitaphs often spoke of natural law,
4 Maccabees identifies the "law" with the Pentateuch (Redditt, "Nomos").
34. Bockmuehl, "Law." Unwritten law in Philo resembles Greek concepts more than later rabbis' oral law (Martens, "Unwritten Law," on Philo Spec. Laws 4.149–50). Rabbis could envision a central unifying principle to the law (as in b. Shab. 31a; cf. Zipor, "Talebearers"; Keener, Matthew, 249), which some relate to Greek unwritten law (Jeremias, Sermon, 3).
35. Mitsis, "Stoics and Aquinas." Seagrave, "Cicero," finds in Aquinas's understanding of natural law a continuation of Cicero's Aristotelian approach.