BMCR 2011.03.32

Recovering the Ancient View of Founding: A Commentary on Cicero’s De Legibus

, Recovering the Ancient View of Founding: A Commentary on Cicero's De Legibus. Lanham, MD: Lexington Books, 2010. vii, 217. ISBN 9780739134184. $65.00.

Table of Contents

Among Cicero’s works De legibus has, until recently, been neglected, and not a few problems remain; so one takes up T.W. Caspar’s new book (a political science dissertation written at Claremont Graduate University) with anticipation.

“Recovering the ancient view of founding” is a less than apt title. It could serve as the title of a monograph on Plato’s Laws, which deals explicitly with the problem of founding a new city. But as Caspar himself shows, Marcus of Leg. is not founding a new regime de novo (p.79), nor is “founding” a part of the mandate that guides the dialogue (1.37).

The book’s tendency becomes clear in the Introduction. Political philosophy is placed at the apex of the hierarchy of arts. Current political philosophy needs, however, to be reformed by going back to its classical roots (p.14). There is, further, a Nietzschean regard for the famous political philosophers of antiquity as great men who must be restored to their pedestals by (a) close study of their texts and (b) freeing them of the fetters imposed by historicist contextualization. This is the general approach taken by Leo Strauss and his school; no surprise, then, to find the endnotes liberally sprinkled with references to Strauss and Straussians. It is beyond the scope of this review to argue about first principles of interpretation; I will, rather, examine, on the basis of select examples, the kinds of results Caspar achieves for Leg.

With Leg. even the scope of the work is problematic: is it complete or truncated? One’s decision will have consequences for the interpretation. There are various reasons for believing that Leg. is truncated. Thus there are (a) promised topics that are not dealt with, or not dealt with in any detail, in the extant text (1.29, 3.29, 47 and 48), (b) the fragments cited by Macrobius from Books 3 and 5 as well as other unplaced fragments and (c) the fact that Leg. is transmitted as the final item in the Leiden corpus of Ciceronian texts, a position vulnerable to mechanical loss. Caspar does not attempt to deal with this evidence; indeed, his claim that the interlocutors will stay on the island in the Fibrenus “for the remainder of the dialogue” (p.102; similarly 107) suggests that Caspar does not know that a change of position is announced in the fragment from Book 5. Moreover, the arguments that he advances in favor of completeness are not cogent: He points, e.g., to the phrase lex recitata est used at 3.11 to mark the conclusion of the laws on magistrates, and thinks that this means that this is the conclusion of the entire legislative program of Leg. But there is an equally firm phrase closing the laws on religion at 2.23: conclusa quidem est a te . . . magna lex. If Books 1-2 alone had survived, a similar argument could have been made for completeness on this basis. But in spite of the weakness of his case, in the sequel Caspar regularly speaks as if there were only three books (e.g. at p.77 he states that after Book 1 “two thirds of the dialogue remains” etc.).

Another problem that confronts students of Leg. is the fact that there is no clear reference to it in Cicero’s letters and no mention of it in the catalogue of his philosophical works at Div. 2.1-4. Caspar thinks he has the explanation: “Cicero apparently wished that his book about natural law legislation avoid any connection to any particular time period” (p.122). That might be a reason for not including a specific date in the dialogue itself but would hardly explain its omission from the catalogue of philosophical books. In fact, the omission from the catalogue together with the fact that some chapters such as 2.29 and 3.40 seem to have the character of a rough draft has caused some scholars to suggest that Cicero put the essay aside and did not plan to complete and publish it (perhaps because of intervening changes in the Roman constitution); Caspar seems unaware of this possibility.

The first two chapters broach the question of Cicero’s relation to Stoicism, with Caspar keen to sever links to Stoicism, both in Off. and in Leg. itself. For the former he endorses (p.9) an argument advanced by D. Kries that seeks to separate Cicero’s view of the “natural advantages” (honor, wealth, power etc.) and the morally good from that of the Stoics, including Panaetius. In fact, however, Panaetius, too, attributed (instrumental) value to the “natural advantages,” as is shown by the fact that Cicero followed his views in Off. 2 ( Att. 16.11.4); when Cicero departs from Panaetius in Off. 3, he reverts to Stoicism of the older type (see my note on Off. 3.97-115). When he turns to Leg., Caspar points out, with reference to 1.19, that the work is “directed ‘entirely’ at a popular audience” and thinks that a link to the Stoics is thereby excluded (pp.10, 45). But he seems to forget that when Cicero praises Panaetius at 3.14 he does so precisely on the grounds that he departed from the older Stoics who non ad hunc usum popularem atque civilem de re publica disserebant (for Panaetius’ use of popularia verba et usitata cf. also Off. 2.35). There were by Cicero’s time several versions of Stoicism formulated in debate with other schools. Caspar seems to have only the older version in mind. As to Stoic natural law doctrine, Caspar endorses H. Koester’s position denying that Zeno ever used the term “law of nature ( nomos physeos)” and generally abjudicating the doctrine from the Stoa (p.10). But Koester’s claim that when Cicero says at N.D. 1.36 Zeno autem . . . naturalem legem divinam esse censet he is translating logos as lex seems dubious (one might have expected logos to be rendered as ratio). Caspar might have considered the subtler analysis of the relations among Cicero, Antiochus and Philo offered by R.A. Horsley, which he lists in the bibliography but does not discuss.1

Caspar’s “commentary” is not a work in the commentary tradition originating out of the variorum editions of the early modern period with lemmata, discussion of textual variants, grammar, style etc. but a kind of running paraphrase of the content, whereby Caspar offers regular comparisons with Platonic doctrine; this is sometimes helpful, but it needs to be supplemented by reference to Stoic materials, for which the reader will have to consult other works. There are also occasions when the Platonic parallels are adduced out of season, as when Caspar brings Plato’s view of the place of poetry in the state into the discussion of the proem, which leads him, bizarrely, to conclude that Marcus rejects his own poetry and “holds his own work out [up?] for derision and scorn” (p.31). There are also places where Caspar’s information is incomplete or erroneous. Thus e.g. T. Pomponius Atticus was not merely “friendly with” Quintus Cicero (p.25) but, in fact, his brother-in-law; the assertion that “at no time could all three men [sc. Marcus, Quintus and Atticus] have been present in Arpinum together” (ibid.) is incorrect; the dramatic date of the dialogue is not a “mystery” (ibid.): though not explicitly stated, it can be inferred fairly closely (see pp.22-23 of my commentary); and Atticus was a Roman who took up residence in Athens, not a “transplanted Greek” (p.26) who was “born . . . in Epirus” (p.105). In study of such a text there are also subtle issues of tone to be negotiated; here Caspar is unreliable. Thus he claims that, when, in asking Atticus for a concession regarding the divine governance of the world, Cicero addresses him as “Pomponius” (1.21), he is “using the more familiar form of address” (sc. as compared to “Atticus”: p.49). But surely it is the other way round: “Atticus” is Cicero’s normal address for his friend at this period generally and in Leg.; by switching to “Pomponius” here, Cicero is calling attention to the formal request.2

When he comes to deal with Books 2 and 3, Caspar is keen to dismiss the possibility that Cicero’s law code is a selection or modification of Roman laws. He seizes upon Marcus’ remark that the language of his laws will be less archaic than that of the XII Tables or leges sacratae (2.18) and concludes that Marcus “reject[s] the notion . . . that he is picking and choosing from among actual Roman laws” (p.122). But he seems to forget that Marcus’ remark bears only upon the style, not the substance, of his laws.

The religious laws of Book 2 are a tricky area for anyone not well grounded in ancient religion. Even though Leg. includes some henotheistic references to “god,” no one who reads Leg. 2.28-29 attentively will be inclined to claim that Cicero “encourage[s] his fellow citizens in the direction of monotheism” (p.156n174). In discussing divination Caspar compares De divinatione and tries “to show the consistency of Cicero’s skepticism” in the two works (p.155n143). But this is surely misguided: skeptical qualms have been explicitly sidelined in Leg. (1.39) in order to establish a united front among supporters of the honestum, a necessarily dogmatic position, whereas Div. is an exercise in in utramque partem disputare. In saying that in Div. “Cicero displays nothing but contempt for [divination]” (p.130), Caspar elides the distinction between Cicero the author and “Marcus” the dialogue character. Nor in Leg. can Cicero be said to seek “to destroy whatever part of divination was based on superstition” (p.131); rather, he seeks to strengthen the hand of the augurs rei publicae causa (by pp.190-91 Caspar seems to have realized this).

It is a pity the manuscript was not vetted by someone with a good knowledge of Latin. This is a particular problem in the discussion of the laws on magistrates in Book 3, where political nuances are significant. There were, as Caspar knows, political divisions in Cicero’s Rome, but he has trouble putting his finger on the right terminology (the two factions appear as the optimates or, worse, the optimatii and the populos); given that, it is not surprising that the popularis civis of concern at 3.26 becomes the “popular citizen” (p.183); the principes (“leading citizens”) become, unhelpfully, “the princes,” the princeps ordo “the order of princes” (p. 185) etc. Within this terrain Caspar has trouble situating Marcus’ interlocutors. He does not explain why he supposes, without support in the text, that Atticus, an Epicurean, “thinks of the best regime as ruled by philosopher-kings” (p.184). Quintus, on the other hand, is repeatedly called a “noble,” but this is likely to confuse, being at odds with Cicero’s usage of the term nobilis of those with a consul in their recent ancestry. Furthermore Caspar seems not to have taken in that by Cicero’s day many nobles were of plebeian ancestry.

This book, then, attempts to recontextualize Leg. by giving more attention to its relation to Plato; and indeed the comparisons to Plato at 146-48 and 160-61 are useful. At the end Caspar has to conclude, however, that “the more we examine Cicero’s code, the less it appears that he followed Plato very closely at all” (p.194). There was room for a study of Leg. making this text more accessible to the student and general reader, but this one is burdened by too many errors and misguided presuppositions to be recommended.


1. H. Koester, “Nomos physeos: the concept of natural law in Greek thought” in Religions in antiquity, ed. J. Neusner (Leiden, 1968) 521-41 at 529; R.A. Horsley, “The law of nature in Philo and Cicero,” Harvard Theological Review 71 (1978) 35-59.

2. Cf. J.N. Adams, “Conventions of naming in Cicero,” Classical Quarterly 28 (1978) 145-66, especially (on Cicero’s way of addressing Atticus) 159-60 and 165 on the cognomen as “the more ‘personal’ name” (compared to the nomen).