de legibus': cicero as scipio and the problem of the excluded philosophic statesman

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De Legibus: Cicero as Scipio and the Problem of the Excluded Philosophic Statesman

David T. West, [email protected] CAMWS Annual Meeting, Waco, TX, April 5, 2014


Interpretations of Cicero‘s de Legibus have frequently focused on Cicero the character‘s

initial recusatio of a variety of genres in which he might potentially write (Benardete 1987,

Nicolai 2000, Dolganov 2008). Since Cicero ultimately settles on the topic of legislation for the

state described in de Republica (Leg. 1.20), a decidedly political topic with philosophic

overtones, some scholars [such as Rudd & Wiedemann (1987) and Dolganov (2008)] have

concluded that the purpose of his self-representation in this dialogue is to bolster his own

auctoritas as a statesman whose views on law are backed by philosophic expertise, all in an

attempt to regain his former political prominence.

There is no doubt that Cicero was eager to regain his former status in the Roman state, as

is clear from several letters dating to the late 50s and early 40s.1 However, the question of

Cicero‘s immediate political purposes in composing de Legibus is complicated by the fact that

we really don‘t know exactly when he wrote it— while scholarly consensus has settled on the

late 50s, plausible arguments have been advanced for the 40s as well. But I would suggest that

the exact date of the work‘s composition is not as important for understanding Cicero‘s purposes

as the dramatic date of this imaginary conversation between Marcus, Atticus, and Quintus. This

conversation is clearly envisioned as taking place sometime in the late 50s, after the death of

Clodius and before the outbreak of the civil war, at a time when Cicero was decidedly not

influential in practical affairs.

In my view, it is this dramatic setting which is of primary importance. Rather than

looking at de Legibus as a political tract couched in the dialogue form as a mere convenience, we

need to consider this dialogue precisely as a dramatic dialogue written in the Platonic tradition,

1 See for example Fam. 9.2.5, a passage I have provided in an Appendix to the handout.

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containing such features as an imagined historical setting, interlocutors with specific character

traits, as well as dramatic action internal to the dialogue itself. Upon examining de Legibus in

this way, I am obliged to deny the claim that Cicero thought writing this dialogue could have the

effect of restoring him to his former prominence. In my view, Cicero means to show the reader

of de Legibus exactly the opposite, that his political rehabilitation is extremely unlikely. I will

arrive at this conclusion first, by comparing Cicero‘s image of himself in de Legibus to his

portrait of Scipio Aemilianus in de Republica, and secondly, by comparing the historical

circumstances prevailing at the time of the dramatic date of each dialogue.

The literary character of de Legibus cannot be underestimated. The dialogue‘s reference

to Cicero‘s earlier work de Republica opens the way to the depiction of Marcus in de Legibus as

a philosophically educated and experienced statesman. This identity is established through the

implicit identification of Marcus with Scipio, an identification which is effected first of all

through the conflation of Marcus the writer of de Republica with Scipio the chief speaker in de

Republica. In Book 1 of the Laws, Atticus tells Marcus, as we see in HANDOUT 1:

[Atticus]: Since you have written about the best form of the state, it seems to follow that

you yourself should write about laws. For I see that Plato of yours did this. . .2 (Leg.

1.15)

Quoniam scriptum est a te de optimo reipublicae statu, consequens esse videtur ut scribas

tu idem de legibus. Sic enim fecisse video Platonem illum tuum. . .3

But shortly after Atticus has referred in this way to Marcus‘ authorship of de Republica, Marcus

himself credits Scipio with the authorship of de Republica, for which please see HANDOUT 2:

2 Translations from the Latin in this paper are my own.

3 Quotations from Cicero’s Rep. and Leg. in this paper are taken from Powell’s 2006 OCT edition.

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[Marcus]: Therefore we must keep to and preserve the form of the state which Scipio

taught was best in those six books, and we must accommodate all the laws to that regime,

and must also plant moral habits. . . (Leg. 1.20)

Quoniam igitur eius reipublicae, quam optimam esse docuit in illis sex libris Scipio,

tenendus est nobis et servandus status, omnesque leges accommodandae ad illud civitatis

genus, serendi etiam mores. . .

In the first passage, Cicero has Atticus view Marcus as the author of de Republica, and in writing

about laws, Marcus is envisioned as following in the footsteps of Plato, who also wrote a

Republic and Laws. But in the second passage, Marcus refers to Scipio as the one who ―taught

which [form of the state] was best in those six books,‖ and thereby positions himself not so much

as the author of a book on laws following his own book on the republic but rather as a successor

to Scipio, occupying in the current dialogue the place held by Scipio in the previous one.4

By portraying Marcus as taking the place of Scipio in the current dialogue, Cicero

implicitly invites us to examine Scipio in de Republica to see if Marcus exhibits any similar

qualities in de Legibus. Scipio and Marcus, in fact, are both depicted as philosophically inclined

statesman, senior statesmen, with great experience in political affairs. To speak first of Scipio‘s

philosophic inclinations, these are evident in the first place in his willingness to converse on the

report given in the senate of the appearance of two suns in the sky (Rep. 1.15). Tubero is the one

to raise the question, and Scipio, after a brief digression on Socrates, brings it up again upon the

arrival of Philus, for which please see HANDOUT 3: ―For you are accustomed to search out

eagerly the sort of matters which Tubero began to ask about a little earlier... [So] I am eager to

4 For a discussion of the extent to which Marcus’ laws in the current work are in fact accommodated to the regime

proposed by Scipio, see Powell 2001. The conflation of Marcus with Scipio also may imply that Scipio is truly a mouthpiece for Cicero the writer, confirming what scholars have often suspected.

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hear from you, Philus, what you think about those two suns.‖ (Rep. 1.17).5 Scipio‘s manner of

speaking reveals the mind of a man invested with the spirit of philosophic questioning and one

eager for philosophic conversation.

He also shows his philosophic bent through the ability to see beyond the confines of

politics to nature as a whole. For example, he gives voice to the concept of a distinction between

political and natural law, as we see in HANDOUT 4: ―How fortunate is that man to be

considered who alone is able to lay claim to all things as his own, not by the law of Roman

citizens, but by the law of the wise, and not by any civil tie, but by the common law of nature!‖

(Rep. 1.27). (Quam est hic fortunatus putandus, cui soli vere liceat omnia non Quiritium sed

sapentium iure pro suis vindicare, nec civili nexo sed communi lege naturae.) Scipio states in

effect that happiness belongs to the man who can claim the whole world as his own property

through philosophy and the law of nature, universal concepts showing a philosophic awareness

that surpasses the limitations of local politics.6 These words are themselves part of an

enthusiastic though relatively brief encomium of philosophy delivered by Scipio, an encomium

which will find its parallel in Marcus‘ own encomium of philosophy that brings the first book of

de Legibus to its stately conclusion (1.58-63).

But let us see how Cicero develops the character of Marcus along lines similar to Scipio‘s

character. In Leg., Cicero portrays himself as an urbane man in his own right with an inclination

towards philosophy. This image is promoted in a general way through Marcus‘ long philosophic

disquisition on natural law which takes up the majority of Book 1 (18-63). But in particular,

5 Soles enim tu haec studiose investigare, quae sunt in hoc genere de quo instituerat paulo ante Tubero quaerere. .

. de solibus istis duobus. . . studeo, Phile, ex te audire quid sentias. 6 More generally, Scipio’s argument about the temporal and spatial limitations of politics and human fame in this

section (1.26-27) foreshadows the major themes of his Somnium (6.9-26).

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Marcus makes a distinction between universal law, ius, and the particular laws of states, leges, as

we see in HANDOUT 5:

[Marcus:] We must include in this discussion the whole cause of universal law and of

particular laws... For we must explain the nature of law... [next] we must consider the

particular laws by which states ought to be ruled; then we must treat these... laws and

statutes of peoples, among which the so called civil laws of our own people will not be

hidden either (Leg. 1.17).

[M.]: Sed nobis ita complectenda in hac disputatione tota causa est universi iuris ac

legum... Natura enim iuris explicanda nobis est... considerandae leges quibus civitates

regi debeant; tum haec tractanda... iura et iussa populorum, in quibus ne nostri quidem

populi latebunt quae vocantur iura civilia.

Just as Scipio saw beyond the confines of the political order particular to Rome, so Marcus sees

beyond the particular laws of states to a universal law which can serve as the basis of all

particular laws.

The parallel between Scipio and Marcus as men of philosophic learning is further

strengthened by the similarity of the interaction between Scipio and Laelius in Rep. and that of

Marcus and Quintus in Leg. The inclinations of Scipio and Marcus lead them to talk about

matters which the less intellectual men in the conversation seem to find useless. For example, in

the midst of his discourse on natural law, Marcus broaches the question of the dispute about the

highest good between the Old Academy and the Stoics. Marcus and Atticus discuss how the

conflict between the schools on this question might be resolved (1.52-55). But when Marcus

suggests that the solution is for everyone to ―obey the boundaries which Socrates stipulated”

(requiri placere terminos quos Socrates pepigerit, eisque parere, 1.56), Quintus, noticing the

legal terms his brother employs, takes the opportunity to redirect the conversation, for which

please see HANDOUT 6:

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[Quintus:] Fantastic, brother! You just now started to make use of the terms of civil law

and particular laws, and I am [still] waiting for your discussion about this subject. . . I

don‘t know if this matter [of the highest good] can ever be decided, but it certainly can‘t

in this conversation, at least if we‘re going to finish what we started.

[Marcus (or Atticus?)]: I was the one who veered off in that direction [towards the

discussion of the highest good], and not unwillingly.

[Quintus]: It‘ll be permitted some other time. Now let‘s do what we began, especially

since this disagreement about the highest evil and good has nothing to do with it.

[Marcus:] You speak very prudently, Quintus. . . (Leg. 1.56-7)

[Q.]: Praeclare, frater! Iam nunc a te verba usurpantur civilis iuris ac legum, quo de

genere exspecto disputationem tuam. . . Hoc diiudicari nescio an numquam, sed hoc

sermone certe non potest, siquidem id quod suscepimus perfecturi sumus.

[M. (vel A.?)]: At ego huc declinabam, nec invitus.

[Q.]: Licebit alias; nunc id agamus quod coepimus, cum praesertim ad id nihil pertineat

haec de summo malo bonoque dissensio.

[M.]: Prudentissime, Quinte, dicis. . .

Quintus rather forcefully returns the discussion to its original trajectory. Quintus argues in favor

of dropping the current question on the grounds that it cannot be resolved, and certainly not

during the present conversation. Now, Atticus and Marcus would not necessarily disagree, but

the awareness that the question may not ultimately have a definitive answer is no reason for them

to desist from that question. Quintus‘ words reveal his unphilosophic frame of mind. He wants

to bring the conversation back to the plane of politics, eagerly anticipating the legal doctrines his

brother will provide. Marcus‘ character as a philosophic man, therefore, stands out more clearly

through the contrast provided by his fellow interlocutor Quintus.

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Likewise, Scipio is recalled by Laelius from his discussion of the two suns to the more

pragmatic topic of the best form of government. Laelius, upon hearing from Philus that he and

Scipio are discussing the recent report in the senate (1.15) regarding the sighting of two suns in

the sky, indignantly remarks: ―Indeed, Philus? So have we already figured out matters which

concern our homes and the state, since we‘re now apparently asking what‘s going on in the sky?‖

(Rep. 1.19) (Ain vero, Phile? Iam explorata nobis sunt ea quae ad domos nostras quaeque ad

rem publicam pertinent, siquidem quid agatur in caelo quaerimus?) Laelius allows the

discussion of the two suns to continue for a time, but before long he asserts himself again to

draw the conversation away from what he views as a useless topic, as we see in HANDOUT 7:

―But Scipio‘s detractors and enemies control part of the senate... while the treaties have

been broken and those revolutionary extremists, the triumviri [of the land commission],

are daily scheming some new plan... For which reason, if you‘ll heed what I say, young

men, don‘t worry about that second sun... we can‘t know anything about those matters.

But having one senate and people is something which is both possible and, if it fails to

happen, extremely unbearable... [So] let‘s ask Scipio to explain what form of the state he

thinks is the best.‖ (Rep. 1.31-33)

Obtrectatores autem et invidi Scipionis. . . tenent. . . senatus alteram partem. . . foederibus

violatis, triumviris seditiosissimis aliquid cotidie novi molientibus. . . Quamobrem si me

audietis, adulescentes, solem alterum ne metueritis. . . scire istarum rerum nihil. . .

possumus. Senatum vero et populum ut unum habeamus, et fieri potest et permolestum

est nisi fit. . . Scipionem rogemus ut explicet quem existimet esse optimum statum

civitatis.

Laelius calls attention to the current crisis of the state to convince the others that they should be

speaking about political matters. Like Quintus, he shrugs off the philosophic question at issue by

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declaring that it cannot be resolved. Quintus and Laelius, then, perform similar roles, and their

similarity calls attention, in turn, to the similarity between Marcus and Scipio.7

Another parallel between Scipio and Marcus is their common identity as senior

statesmen. First, as regards Scipio, he is portrayed, through the mouth of Laelius, as the one man

who has the capacity to save the state in its current crisis over the land commission established

by Gracchus, and yet is excluded from doing so, for which please see HANDOUT 8: ―But

Scipio‘s detractors and enemies. . . do not allow him, the one man who is able. . . to bring

assistance in the midst of such dangerous affairs‖ (Rep. 1.31). (Obtrectatores autem et invidi

Scipionis. . . neque hunc, qui unus potest. . . his tam periculosis rebus subvenire patiuntur.)

Finally, in the Somnium, Africanus delivers a conditional prophecy that Scipio will be the savior

of the state, and this is HANDOUT 9:

―To you alone and to your name will the entire state turn itself. . . you alone will be the

man upon whom the salvation of the state rests, and, in sum, as dictator it will be for you

to establish the state, if you end up escaping the impious hands of your neighbors‖ (Rep.

6.12).

In te unum atque in tuum nomen se tota convertet civitas. . . tu eris unus in quo nitatur

civitatis salus, ac ne multa, dictator rem publicam constituas oportet, si impias

propinquorum manus effugeris.

The anaphora of the word alone, unus, here recalls the wording of Laelius in Book 1, where

Scipio was said to be the one man able to remedy the situation, unus qui potest (1.31).8 In both

passages, Scipio is foreseen as the one man who can resolve the political crisis.

7 “Gaius Laelius... is portrayed as an ironic and practical man, who repeatedly returns the conversation from the

higher philosophical flights of Scipio to the real world of Roman life” (Zetzel 1999, xiii). “*Quintus’+ interest in philosophy being, apparently, limited, he shows a bit of impatience... He calls a halt altogether to his brother’s digression on the finis bonorum and by putting his concrete expectations on the table sets the discussion back on track (1.56-57)” (Dyck 28). 8 cf. Zetzel 1995 ad. loc. for the similarity of the two passages.

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In a similar way, Cicero makes sure to portray himself in Leg. as a man of

accomplishments in the political arena. Atticus is given the role of calling attention to Cicero‘s

moment of glory during the Catilinarian crisis. Atticus asks Marcus to consider employing his

leisure time to write a history of Rome, as we see in HANDOUT 10: ―A history is demanded of

you. You seem to me to owe this duty to your fatherland, so that the country which was saved

by you may, by you also, be adorned‖ (Leg. 1.5). (Postulatur a te. . . historia. . . mihi videris. . .

patriae debere hoc munus, ut ea quae salva per te est, per te eundem sit ornata.) While these

words bring up Cicero‘s past services towards the state, they are also used by the author to

portray himself as a man who ever remains concerned with politics. For Marcus ultimately

refuses Atticus‘ request, arguing that he does not have the extended amount of leisure time

necessary for completing a history of Rome. As Anna Dolganov has rightly observed, Cicero

implies that he does not intend to remain at leisure for long, and therefore that he wishes to

remain involved in public life.9 Through his own person, Cicero wishes to teach the lesson that a

Roman ought not to pursue leisure to the exclusion of public service. He must always be ready

to apply the learning acquired in leisure for the good of the state.

The common identity of philosophic statesman shared by Marcus and Scipio, and the

emphasis in de Republica on Scipio‘s exclusion from public affairs, call attention to the parallel

in the historical circumstances which holds sway within the drama of the two dialogues. Cicero

appears to be implying that in his own time, too, the republic is in crisis, hardly a surprising

notion, but more importantly, that he is being denied a political role in remedying the crisis. We

should not, however, assume that Cicero does this as a ploy to obtain power, or that he is calling

9 33. In my view, however, Dolganov’s interpretation of Cicero’s purpose in this dialogue as an attempt to gain

political power through the construction of himself as a man with political and literary auctoritas is cynically one-dimensional. The same could be said of the harsh judgments made on Cicero’s character, e.g. :”What follows is the well-known tirade against Roman historiographers (1.5-6), meant to massage Marcus’ ego” (33).

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for himself to be made dictator, in parallel with Africanus‘ prophecy for Scipio in the Somnium.

For the fact that Scipio was denied the ability to intervene in order to save his country and died

shortly after the dramatic date of the dialogue would seem to imply that Cicero foresees that he

will not be given the opportunity to do so either.10

And so the dramatic action of de Republica

suggests that Cicero will not be called on to save the state, and the crisis in the state in his own

time will not be remedied. Though it is unclear if Cicero thought he too was soon to die, Leg.,

following Rep., may suggest an intractable political problem for the Roman republic which

guarantees its failure: it is precisely that statesman most capable of safely guiding the state out of

a crisis who is excluded from office when his services are most required.11

What James Zetzel

(1995) has claimed for Cicero‘s de Republica can be claimed for his de Legibus as well: like its

predecessor, de Legibus proves to be, not mere political propaganda, but a carefully crafted

dialogue on political philosophy.

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The gloomy and bleak outlook Cicero continually conveys in his letters during the late 50s contribute to this interpretation. 11

The problem of the exclusion of the philosopher-statesman in Rep. and Leg. seems to be Cicero’s creative parallel to the permanent problem of the unlikelihood of philosophers ever becoming kings in Plato’s Republic.

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Select Bibliography

Benardete, S. ―Cicero‘s De Legibus I: Plan and Intention.‖ AJP 108.2, 1987. 295-309.

Caspar, T. Recovering the Ancient View of Founding: A Commentary on Cicero’s De Legibus.

Lanham, 2011.

Dolganov, A. ―Constructing Author and Authority: Generic Discourse in Cicero‘s De Legibus.‖

Greece and Rome 55.1, 2008. 23-38.

Dyck, A. ―Cicero the Dramaturge: Verisimilitude and Consistency of Characterization in Some

of his Dialogues,‖ in G. L. Schmeling and J. D. Mikalson eds. Qui Miscuit Utile Dulci:

Festschrift Essays for Paul Lachlan MacKendrick. Wauconda, 1998.

Dyck, A. A Commentary on Cicero, De Legibus. Ann Arbor, 2004.

Nicolai, R. ‗Opus oratorium maxime: Cicerone tra storia e oratoria.‖ In E. Narducci ed.

Cicerone. Prospettiva 2000. Atti del Symposium Ciceronianum Arpinas. Florence, 2000.

105–25.

Powell, J.G.F. ed. M. Tulli Ciceronis. De Re Publica, De Legibus, Cato Maior de Senectute,

Laelius de Amicitia. Oxford, 2006.

Rudd, N. and Wiedemann, T. eds. Cicero: De Legibus I. Bristol, 1987.

Zetzel, J. ed. Cicero. De Re Publica. Selections. Cambridge, 1995.

----------------. Cicero. On the Commonwealth and On the Laws. Cambridge, 1999.

Appendix: Other Relevant Texts

de Re Publica 1.36

(Scipio:) ―I ask you to listen to me in the following way: neither as one altogether unversed in

Greek matters, nor as one preferring them to our own (especially in this subject matter [of

politics]), but as one of those who wear the toga, liberally educated due to the diligence of my

father, and fired with the love of learning from the time I was a boy, but much more learned

through experience and through the precepts I received at home than through literature.‖

‗Peto a vobis ut me sic audiatis: neque ut omnino expertem Graecarum rerum, neque ut eas

nostris in hoc praesertim genere anteponentem; sed ut unum e togatis, patris diligentia non

illiberaliter institutum, studioque discendi a pueritia incensum, usu tamen et domesticis

praeceptis multo magis eruditum quam litteris.‘

de Legibus 3.14

[Marcus]: We can recall men who were merely somewhat learned who were great in politics, and

many extremely learned men who were not very experienced in the politics. But who can we

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easily find, with the exception of [Demetrius of Phalerum], who excelled in both areas, so that he

was number one both in the pursuit of learning and in ruling the state?

[Atticus]: I think that we can, and in fact it‘s one of us three.

[M.]: Et mediocriter doctos magnos in re publica viros, et doctissimos homines non nimis in re

publica versatos multos commemorare possumus; qui vero utraque re excelleret, ut et doctrinae

studiis et regenda civitate princeps esset, quis facile praeter hunc [Demetrium Phalereum]

inveniri potest?

[A.]: Puto posse, et quidem aliquem de tribus nobis.

Fam. 9.2.5, Cicero to Varro, April 46

Now let us be determined to do the following: to live united in our studies, from which in time

before we were wont to seek delight, but now, in addition, safety; not to be found wanting, if

anyone wants to make use of us not only as architects but even as builders for the construction of

the state, and to come running to her aid quite willingly; if no hires us, nevertheless to write and

to read republics (―regimes‖) and to guide the ship of state and to ask questions about mores and

laws, if not in the senate house and in the forum, then in literature and in books, as highly learned

men of old have done. These things seem best to me, but what you will do and what seems best

to you, it will be most pleasing to me if you‘ll write it to me.

Modo nobis stet illud: una vivere in studiis nostris, a quibus antea delectationem modo

petebamus, nunc vero etiam salutem; non deesse, si quis adhibere volet, non modo ut architectos,

verum etiam ut fabros, ad aedificandam rem publicam, et potius libenter accurrere; si nemo

utetur opera, tamen et scribere et legere πολιτείας et, si minus in curia atque in foro, at in litteris

et libris, ut doctissimi veteres fecerunt, gubernare rem publicam et de moribus ac legibus

quaerere. Mihi haec videntur: tu quid sis acturus et quid tibi placeat, pergratum erit, si ad me

scripseris.

Leg. 1.14

[Marcus]: Where are you calling me, or what are you encouraging me to do? To draw up little

treatises on the law governing trickles of water from roofs, or boundary walls? Or to compose

formulas for contracts and judgments? Yet these are subjects which many have carefully written

up, and are more lowly than the sort of matters which I imagine are expected from me.

[M.]: Quo me vocas, aut quid hortaris? Ut libellos conficiam de stillicidiorum ac de parietum

iure, an ut stipulationum et iudiciorum formulas componam? Quae et scripta a multis sunt

diligenter, et sunt humiliora quam illa quae a nobis exspectari puto.

http://www.perseus.tufts.edu/hopper/morph?l=politei%2Fas&la=greek&can=politei%2Fas0&prior=legere

de legibus': cicero as scipio and the problem of the excluded philosophic statesman

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