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The origins of freedom: Antiquity

The invention of law by the Romans

A Philosophical History of Freedom

The invention of law by the Romans

  • The protection of individual rights
  • The Birth of Humanism and Private Life
  • Seneca and the Happy Life
  • The Concept of a Higher Law
  • Cicero and Natural Law
The Roman Empire was a vast, cosmopolitan entity. At its peak, around 117 AD, it was an immense multiethnic and multilingual state:
  • In the west, it extended from Great Britain (present-day England) to Spain, passing through Gaul (present-day France) and the north of Africa.
  • In the north, it reached the Rhine and the Danube, encompassing parts of Germany, the Netherlands, Switzerland, Austria, Hungary, Romania, and Bulgaria.
  • To the south, it bordered the Mediterranean Sea, including Italy, Greece, the Balkans, Asia Minor (present-day Turkey), Syria, Lebanon, Palestine, Egypt, and Cyrenaica (part of present-day Libya).
  • To the east, it extended to Mesopotamia (present-day Iraq) and Armenia.
From then on, the Romans advanced the development of law far beyond the Greeks, who lived in small, ethnically homogeneous city-states. Under the Roman Republic, there was already legal protection of property and individual rights.
Indeed, the function of law was to make peaceful cohabitation and exchange among people possible by delineating the boundaries of "mine" and "yours."
Private property assumed a new dimension in Roman civilization that it had not previously known, even in ancient Greek civilization.
Roman law would become the foundation of all modern Western laws from the Middle Ages to the present day.

The protection of individual rights

Ultimately, Roman law placed great importance on the rights and freedoms of individuals, and Roman citizens took pride in their citizenship status. The Law of the Twelve Tables (450 BC) constituted the first corpus of written laws accessible to all Roman citizens, both patricians and plebeians. This codification helped clarify and standardize the law, which was previously scattered and often customary, ensuring a certain level of transparency in the application of rights such as the right to marry, buy, and sell.
This law corresponds astonishingly to the fundamental natural rights as theorized by John Locke two thousand years later. It enables the protection of individual rights against arbitrary and abusive power.
Certainly, women, slaves, and foreigners were still excluded from the full protection of the law. Nevertheless, the Law of the Twelve Tables represented significant progress and laid the groundwork for the further development of individual rights, which were subsequently extended to all.
The Law of the Twelve Tables notably places particular importance on property rights:
  • It defines the different types of property (land, movable, etc.)
  • It breaks down property into usus (right of use), fructus (right to receive the fruits), and abusus (right to alienate)
  • It specifies the conditions for the acquisition, transmission, and protection of these goods.
In summary, it contributes to securing transactions and protecting individuals against arbitrary expropriation, with the possibility of recourse in the event of a dispute.

The Birth of Humanism and Private Life

What one is depends on what one has. Being is not as independent of having as is sometimes said because what we possess distinguishes us from what others possess. And our life belongs to us, we first own our faculties, our body, before owning material goods.
In Roman society, individuals could increasingly differentiate themselves from others and thus become the actors of their own lives. Man now plays a unique role, and Cicero uses the word "persona" to designate him. The "persona" was a mask worn by Roman actors, but it also referred to the legal and social personality of an individual. The notion of persona implied that individuals were distinct entities with their rights and responsibilities. The concept of the individual human person (the ego) with its inner life and unique destiny emerged and developed within Christianity.
Moreover, Roman literature and philosophy contain many examples of reflections on the nature of the individual, happiness, wisdom, and life in society.

Seneca and the Happy Life

A model of balance in thought is Seneca, a Roman Stoic philosopher who wrote about the importance of virtue, reason, and self-control. A contemporary of Jesus, he was also a tutor to Nero, a wealthy banker, and a renowned Roman writer.
The Treatise on the Happy Life (De Vita Beata) is a plea for Stoic morality. Happiness, says Seneca, "is a free soul [...] inaccessible to fear [...] for whom the only evil is moral indignity." A disciple of Socrates, the Stoic sage does not fear physical evil, death, or even suffering injustice. For him, the only evil is moral evil. Therefore, the supreme good lies in virtue.
However, pleasure is not incompatible with virtue:
The ancients prescribed living the best life, not the most pleasant, in such a way that pleasure is not the guide of right will, but its companion on the road.
That's why the wise man does not reject the gifts of fortune:
He does not love riches, he prefers them; he does not welcome them into his heart, but into his house; he does not reject what he possesses, he dominates them and wants them to provide his virtue with ample matter.
Seneca goes even further. For the wise man, riches are the occasion and the means to exercise virtue: In poverty [...] there is only one kind of virtue: not to falter or let oneself be depressed; amidst wealth, temperance, generosity, discernment, economy, and magnificence have free rein.

The Concept of a Higher Law

The term "human rights," which many jurists rally around, implicitly subscribes to the idea of a higher law because it targets rights inherent in humanity itself, preceding any positive legislation. Without this superior moral norm, there would no longer be a critical authority capable of interpreting and questioning the legal order.
This idea reminds us that the Prince (just like political leaders) does not possess justice itself but is himself subject to a law that surpasses him and must regulate his judgment.
This is what philosophers of Antiquity, especially the Romans like Cicero or the Stoics, called natural law. Its origins can be traced back to Greek thought, particularly in the works of Sophocles and Aristotle.
Aristotle distinguishes between natural justice and legal justice. Natural justice is what is universally valid, in every place and at all times. It is an unwritten law, known through reason and logic. Legal justice is inherently indifferent, but becomes mandatory for everyone as a result of a conventional choice and is codified in a legal text. In other words, a distinction is made between natural law and positive law.
The playwright Sophocles, in his play Antigone, stages a conflict between divine law and human law. Antigone refuses to obey King Creon's decree, which forbids the burial of her brother, arguing that divine laws, being immutable and superior, take precedence over human laws.
When Antigone disobeys Creon, she opposes positive law to obey her moral and religious conscience. If there is only positive law, says Aristotle, Creon is always right, even when he is wrong. But if we maintain the regulatory idea of a natural or divine law, Antigone can stand up when the time comes and invoke against an unjust law, the superior right of the unwritten law.

Cicero and Natural Law

Cicero lived in the 1st century BC and is considered one of the greatest orators of the Latin language under the Roman Empire. He is also a moral and political philosopher closely aligned with the Stoics. Educated Europeans have read his essays for many centuries.
In his treatise On the Laws (De Legibus), he reflects on the foundation of law. According to him, positive law, the set of conventions or written laws adopted by a society, cannot establish justice worthy of the name. There exists a natural justice, inscribed in human reason: "law has a foundation in nature itself." To say that the unjust are the result of a convention is to say that truth is decreed. However, truth cannot be decreed, even by the majority; it guides our judgments. Cicero also rejects utility as the foundation of law. Indeed, he writes:
If justice is the obedience to written laws and the institutions of peoples, and if, as those who maintain it say, utility is the measure of all things, he will despise and break the laws, who believes to see his advantage in it. Thus, no more justice, if there is no natural justice at work; if it is based on utility, another utility overturns it. If, therefore, the right does not rest on nature, all virtues disappear. What becomes, indeed, of liberality, love of country, respect for things that must be sacred to us, the will to serve others, the willingness to recognize service rendered? All these virtues arise from the inclination we have to love men, which is the foundation of law.
Therefore, according to him, there is a universal justice, inscribed in reason and nature. Cicero writes in the De Republica:
The true law is right reason in agreement with nature; it is of universal application, unchanging and eternal; it invites to duty by its commands and turns away from the wrong path by its prohibitions […]. Neither the Senate nor the people have the power to dispense us from obeying it […]. It is not one thing at Athens and another at Rome, not one thing today and another tomorrow. But it is a single and same law, eternal, immutable, in force at all times and among all peoples […]. Whoever does not obey this law flees from himself and despises his human nature.
This law is superior to the legislation in force; hence, "it cannot be invalidated by other laws, nor can any of its precepts be derogated, nor can it be entirely abrogated," adds Cicero. Political power has no hold on it.
Neither truth nor justice can be decreed, even by the majority, for otherwise they become the object of all manipulations. Therefore, even if the ruler is the people, it is not right to transgress the principles of natural law. Asserting that law cannot be reduced to merely the statutes enacted by the legislature, Cicero aimed to fight against legislative arbitrariness and propose a political morality. This idea has had a lasting influence on Western thought.
Quiz
Quiz1/5
What was the unique feature of the Roman Empire that facilitated the development of a complex legal system?