Stoicism and the Law
The influence of Stoicism on the doctrine of the Roman jurisconsults
Firmin Laferrière was a 19th-century French jurisconsult — a lawyer then professor of administrative law. His thesis, De l’influence du stoïcisme sur la doctrine des jurisconsultes romains, or The influence of Stoicism on the doctrine of the Roman jurisconsults, published in 1860, studies how Stoic philosophy influenced Roman law and the doctrine of its commentators, the jurisconsults. His analysis, sometimes abstract, has the merit of shedding light on the juridical scope of Stoicism. Review.
This critical summary of an ancient and rare text is possible thanks to the partnership between Hachette Livre (publishing) and the National Library of France (reprinting). The book has a modernized cover but is not a new edition: it presents the 1860 version as digitized, in its old font and pagination. The last three pages are missing due to insufficient contrast and deteriorated text.
Firmin Laferrière’s writing consists of four sections :
- The general principles of jurisconsults;
- The influence of Stoicism on the doctrine of jurisconsults with respect to persons and the constitution of the family ;
- Property — a general division of things;
- Constitution of the family in relation to the property and its disposition.
The author bases himself on De Officiis of Cicero, the Roman orator of Stoic inspiration, whom he considers being one of the founders of the philosophy of law, and, above all, on the Digest and the Code of Justinian, which brings together fragments, edicts, senate decrees, constitutions etc. of the period.
The Stoic Legacy of Jurisconsults
The jurisconsults discussed in the book are mainly Gaius (120–180), Papinian (142–212), Ulpian (170–223), Paul (160–230), and Marcian (3rd century). They were lawyers, jurists, politicians and/or law professors. They are very close to the doctrine of the jurist Marcus Antistius Labeo (50 B.C. to 20 A.D.), who “proceeded philosophically from Chrysippus, Panetius and Cicero, then from Seneca, Epictetus and Marcus Aurelius” (p.11), that is, from Stoicism.
For the author, this Stoic legacy is expressed in certain general principles held by the jurisconsults in question, namely :
- The three fundamental precepts of Roman jurisprudence: to live honestly, not to injure one’s fellow man (in his freedom, his reputation, his life), to give back to each one his own (respect for the right of ownership, relational obligations… according to the merit or demerit of each one), which effectively recall the Stoic precepts.
- The definition of Justice, which is a virtue, a component of wisdom and a form of science/knowledge in Stoicism: Ulpian, for example, defines jurisprudence as “the knowledge of divine and human things, the science of the just and the unjust” (p.19), while Marcian relates the notion to wisdom.
- The scale of duties, which are first towards oneself, then towards society, and finally towards the family: this hierarchy is of Stoic origin according to the author.
- The fact that law is made for human beings (and not animals for example): the early Stoics indeed adopted an anthropocentric posture, considering the Earth and living beings as being created for man.
- The defence, to a certain extent, of the dignity of women and slaves: this would result from the egalitarian and universal doctrine of the Stoics.
The recognition in the law of the periods of childhood and puberty: this would be the consequence of Zeno’s considerations on the age of reason, which would begin at about 7 and end at about 14, thus distinguishing three periods in human life (before the age of 7, from 7 to 14, and after 14).
To what extent does Stoicism help in commenting and interpreting the law?
The method used by jurisconsults to comment on the law is also of Stoic and, more specifically, Ciceronian inspiration. According to the author, the aim of jurisconsults was indeed to make reason and the nature of things the principle of law and to make law evolve by confronting philosophical ideas with existing institutions, civil laws and traditions. In other words, the theory must meet the social, institutional and human field. It was then necessary to find the balance point, not to want to keep everything, not to want to change everything.
These commentators thus had to answer very practical questions based on sometimes abstract notions: how to reconcile the Stoic idea of the equality of the soul between men, women and slaves with the paternal power defended at various levels in Roman law, without disturbing the established order too much? How can the property right, considered natural by Cicero and the jurisconsults, be brought into line with its effective realization? How can we recognize more freedom for everyone without opening the door to the expression of vice? Etc.
The legal translation of corporeal and incorporeal
Throughout the study, Firmin Laferrière studies the comments of jurisconsults and relates them to certain points of Stoic doctrine.
A particularly interesting passage concerns, for example, the way in which corporeals and incorporeals are translated in the philosophy of law. In Stoicism, a corporeal is that which can act or be acted upon (a material body but also a natural law such as gravity, which acts on bodies), an incorporeal is that which can neither be acted upon nor act (the void, time, etc.). In the law, a corporeal is a thing that has a material character (res) and an incorporeal is the right over things or persons (jura). In short, the legal categories of corporeal and incorporeal become things and rights. Thus, the right to bequeath one’s property under a will is nothing without the document produced that allows one to effectively bequeath one’s property and without the beneficiary’s will to benefit. Jurisconsults consider both the will of the one who bequeaths, the material and legal product of his will and the will of the beneficiary (all these form the corporeal) so that the effectiveness of the right (the incorporeal) results.
Jurisconsults have expressed themselves on many other subjects, by dint of formulas that one would gladly lend to philosophers. Ulpian explains, for example, that “good faith requires that what is agreed upon being carried out” and that “it is a serious matter to fail in one’s faith” (p. 23); Papinian: “it is not allowed to impose iniquitous conditions […] one cannot change one’s own resolutions when this would create injustice for another. — Natural law or equity does not allow one to enrich oneself at the expense of one’s fellow man” (p.24). These thoughts, easily found in Epictetus, Seneca and Marcus Aurelius, are like a theoretical framework for legal commentaries on persons, property, marriage, family, etc.
Women, children and slaves: evolution but not revolution
On the slaves
Always in this concern to find the right balance between what is and what should be, Roman jurisconsults have taken moderately progressive positions, being especially critical of the situation of slaves. The author explains:
As interpreters of the laws, jurisconsults were obliged to submit to an institution established in the civil law of Rome and other peoples; but they placed in their writings the maxim of natural law next to the civil institution, as a perpetual and morally superior teaching, and they tried to soften the condition of slaves by the influence of feelings of humanity, or to transform it into a free condition by changes in jurisprudence: Quod attinet ad jus civile, servi pro nullis habentur, non tamen et jure naturali [not translated] (p. 26 ).
This sense of humanity has kind of paid off. Under Nero (!), it was forbidden to deliver a slave to ferocious beasts by the sole will of the master (a sentence from the judge was required); under Antoninus Pius, it became forbidden to crack down on slaves without cause and with excess or to kill someone else's slave; Marcus Aurelius gave additional guarantees to slaves who had been freed in their owner’s will. Gradually, slaves become persons. Jurisconsults welcomed this progress but remained far from being revolutionary. With the emperor-philosopher, for example, they were rather favourable to the revocation of the freedom of the freed slaves when they acted badly once freed. For example by disrespecting the former master, who had become patronus.
On women and children
Concerning the situation of women and children, jurisconsults have mainly contributed to restricting paternal power, for example by considering that it should be subject to the law of humanity and social justice. Marcian thus attempted to associate paternal power with the exercise of piety and not extreme severity. A constitution of Severus Alexander, inspired by Ulpian, abrogates the right to sell children and condemns the person who accepts the child from an illegal sale; at the same time, the mother obtains a new status: she is no longer legally considered as the sister of her sons but as their mother, which allows justice to condemn the son if the latter bears ungodly hands on his mother or if he offends her. There are thus real evolutions, even if, on the other hand, the children and the mother remain largely subject to paternal authority.
It would still be possible to evoke in more detail the position of jurisconsults concerning marriage, property, liberty and testaments, but, to put it in one sentence, the general impression is that jurisconsults hold above all moderate positions which make things evolve little by little without ever having in line with the total equality between men, women and slaves: evolution rather than revolution. That being said, they did appear progressive in the context of their time. Other jurisconsults had a much more conservative vision, such as those of the Sabinian school.
Methodology: the critical point of the study
In short, Firmin Laferrière’s study sheds light on the legal scope of Stoicism, or at least of philosophy, under the Roman Empire, before jurisconsults were completely absorbed by Christian doctrine. This writing shows that the virtue of Justice (human justice) and legal justice are finally not so far apart. While we tend to recall that what is legal is not always moral and that what is moral is not always legal, it is precisely the articulation between the one and the other that we must think about. Jurisconsults sought to align the legal with the noblest of morals without being completely disconnected from the ethical reality of their time. It is a search that seems to me, even today, quite relevant.
If the initial motivations for studying such a subject are quite clear, the book does, however, contain a methodological flaw: it does not dwell enough on the sources used and does not clearly show the causal link between Stoic philosophy and jurisconsults. To simply show a link between Labeo and the Stoics in order to explain that Labeo’s followers are inspired by Stoicism looks very much like an attribution bias. Even if it is true that certain ideas are echoed between the doctrine of the jurisconsults and that of the Stoics, in my opinion, a true analysis of the doctrinal origins of the jurisconsults is missing, because Stoic ideas can also be found in Epicurean or Buddhist texts! The author explains at the end that he was to study in a second thesis “why jurisconsults borrowed more from the Stoic school than from other Greek schools” (p.109) but this order of presentation does not seem very relevant because the quality of the argumentation depends in part on the methodology.
On one hand, law students/professionals interested in the period and/or Stoicism will surely find undeniable qualities in the work, which sometimes focuses on technical details and very specific cases. They will also likely appreciate how philosophical normativity can be used to comment on and interpret the law. On the other hand, I do not especially recommend this book to those who expect to be accompanied in their reading and to follow point by point how stoicism unfolds in jurisconsults and then in Roman law. It is more of a study of the doctrine of Roman jurisconsults, which the author links unconvincingly to the doctrine of the Stoics.
Practical information :
Title : De l’influence du stoïcisme sur la doctrine des jurisconsultes romains
Author: Firmin Laferrière
First publication date: 1860
Editions used for the review: Hachette Livre
Number of pages: 111
This article was first published in French on my blog www.unregardstoicien.com