Natural law was famously developed further by the Roman lawyer, Cicero, but, whilst Roman civil law was mostly privately developed, the various Roman systems of government were not consistent examples of natural law in practise.  Roman law developed primarily between the 1st century B.C. and the 3rd century A.D. and comprised of private and public law.  Rothbard describes the difference between the two: ‘Private law developed the theory of the absolute right of private property and of freedom of trade and contract. While Roman public law theoretically allowed state interference in the life of the citizen, there was little such interference in the late republic and early empire.’  Since, as Prof. Jenõ Szmodis notes, this ‘duality of legal positivism versus natural law…is not known so sharply in other legal cultures,’ the question arises: How did these two conflicting systems of governance develop together, as one legal system, in Rome but not elsewhere in Europe?

The founding of Roman law was influenced by the ethnically eastern Etruscans[1], whose religion possessed typical Levantine attributes:

‘The Roman formalistic and fatalistic view could not originate from…Indo-European religion…because Diaus-Pitar (Zeus-Iuppiter) represented an active force. However we know Etruscans respected highly the power of the Fate, and their oracles prophesied among others the decline of Etruscans themselves by strictly determined processes.’[2]

A submissive, fatalist acceptance of the positivistic legislation of a state power was of course not the habit of Indo-European peoples.  Equilibrium formed between public and private law, between the patrician rulers, influenced heavily by the Etruscans, and the mostly Latin and Greek population:

‘The patrician law involved and preserved a fatalistic-formalistic morale, but the ideas about justice remained in non-formal condition in the plebeian cultural area.’  For example, Roman law only developed the concept of equity through the influence of the Indo-European Latins and the Greeks.[3]

The greatest evidence of this is the development of the Twelve Tables (Leges Duodecim Tabularum), the legislation which founded Roman law in the Republic (450-449 B.C.).  After the expulsion of the last king of Rome, the Republic governed by magistrates was established by patrician rulers who denied the plebeian class access to the magistracy.  According to Roman tradition, after a long social struggle between the two, with threats of secession by the plebeians, the Twelve Tables were produced.  These visibly contained these two influences: the Etruscan, ritualistic influence continued by the patrician class, i.e. various rituals required for certain formal transactions; and the desire to ensure that private property rights remained essentially unmolested, which was the main thrust of the diverse and disorganized content, revealing the influence of the natural law-style of thinking of the predominantly Indo-European plebeian class.  So, public and private law developed as one mixed legal system; as in Greece, private rights only had force under the auspices of the public law, yet there was no direct-governance undertaken by all free men.

Of course, it may be countered that, in Roman history, the State interfered to a minimal degree in private disputes and, thus, private courts provided the required judicial services for resolution despite the State’s legislative powers, as exemplified by philosopher and lawyer, Bruno Leoni:

A large part of the Roman rules of law was not due to any legislative process whatever. Private Roman law…was kept practically beyond the reach of legislators during most of the long history of the Roman Republic and the Empire… Statutory law for the Romans was mainly constitutional law or administrative law (and also criminal law), only indirectly relating to the private life and private business of the citizens.[4]

Nevertheless, as Prof. Hans-Hermann Hoppe predicts, in such circumstances, ‘the definition of property and protection will be altered continually and the range of jurisdiction expanded to the government’s advantage…[and] eternal and immutable law that must be discovered will disappear and be replaced by the idea of law as legislation — as flexible state-made law.’[5]

This is precisely what happened in the later development of Roman law and through the later history of Western law, as influenced by it.  During what is called, ‘The Crisis of the 3^rd Century’, the over-militarized Roman economy was weakened through donatives to a conditionally loyal and expansive army.  Prof. Joseph R. Peden explains the deterioration of individual liberties during this period, as the public law expanded to extort greater taxes from the people, encroaching more heavily on citizens’ rights until they preferred life under the barbarians than the oppression of the imperial rule:

Rome had basically a laissez-faire concept of state/economy relations. Except in emergencies, which were usually related to war… But now under the pressure of this need to pay the troops and under the pressure of inflation, the liberty of the people began to be seriously eroded — and very rapidly…

The early 5th century Christian priest Salvian of Marseille wrote an account of why the Roman state was collapsing in the West… [B]ecause it had denied the first premise of good government, which is justice to the people. By justice he meant a just system of taxation. Salvian tells us, and I don’t think he’s exaggerating, that one of the reasons why the Roman state collapsed in the 5th century was that the Roman people, the mass of the population, had but one wish after being captured by the barbarians: to never again fall under the rule of the Roman bureaucracy. In other words, the Roman state was the enemy; the barbarians were the liberators… Rome continued to use an oppressive system of taxation in order to fill the coffers of the ruling bureaucrats and soldiers.[6]

Thus, St. Augustine could make this observation in the shadow of a moribund Western Rome:

Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the law agreed on. If, by the admittance of abandoned men, this evil increases to such a degree that it holds places, fixes abodes, takes possession of cities, and subdues peoples, it assumes the more plainly the name of a kingdom, because the reality is now manifestly conferred on it, not by the removal of covetousness, but by the addition of impunity.[7]

To explain why, as Lord Acton put it, ‘Power tends to corrupt, and absolute power corrupts absolutely’, would take an entire book.  What’s more, I’m not qualified to write it.  But we can conclude, as Prof. Frank van Dun does, that either there either natural law rules or some ideologue – either there is natural order or unnatural disorder/chaos.

‘Law’ has Germanic roots and essentially means order.  When we speak of a natural law we are thus talking about the natural order of rational agents with free will, in the same sense as Aristotle.  Likewise, justice simply meant respect for this natural order and agreement between similarly natural persons.  Today, however, law and justice are understood as synonymous with state legislation and consequent legality.

All of this goes under the academic label of “positive law”, which covers any one of the many particular imposed (“posited”) systems of regulation by legal rules that we find in various politically organized societies… Justice, then, is only an accidental and often marginal concern of the state. On the other hand, legality or conformity to the rules it imposes or wants to be obeyed is its central concern. (The word ‘legality’ derives from the Latin lex, which denotes a general command issued by a public authority, which originally was a military authority.)…

The positive law is not the natural order of the human world. It is the artificial order that some powerful people (individuals and groups) in a particular society currently try to impose on others. It is an order, not of relations among human persons as such, but of relations among social positions, roles and functions. Thus the positive law of a particular country tells us what powers, immunities, rights, duties, claims and liabilities legally attach to the social positions, roles and functions of a general, a minister, a representative of the people, a citizen, a registered alien, a pensioner, a police man, and so on. In the same way, the rules of chess tell us what a king, queen, knight, pawn or other piece is or can or cannot do.[8]

Whilst not necessarily answering why power corrupts, we might at least conclude that positive law is an excuse to use natural persons as a means to achieve ends which may have nothing to do with the natural order of the human world.  If, as Prof. Duchesne concluded, ‘the West is the story of the realization of humans who think of themselves as self-determining and therefore accept as authoritative only those norms and institutions that can be seen to be congenial with their awareness of themselves as free and rational agents’, it is clear then why such a civilization developed natural law.

In the final part of this article, I will discuss how Christianity took up the torch of Hellenistic natural law, both as a Hellenistic religion itself (in many ways) and as saviour, even creator of what we know as the West.

(Originally published at The Ludwig von Mises Centre website – MisesUK.org

[1] The Near Eastern and non-Indo-European origin of the Etruscans, noted by Herodotus, has been well-attested by the genetic data.  Nicholas Wade notes the largest studies of mtDNA indicate a Lydian, non-Indo-European origin, ‘closest to Palestinians and Syrians’; furthermore, the DNA of their cattle comport with these findings, also having their origin in the Near East. – Wade, N. (2007) ‘Origins of the Etruscans: Was Herodotus right?’ The New York Times – http://www.nytimes.com/2007/04/03/health/03iht-snetrus.1.5127788.html?_r=0 (04/05/2016)

[2] Szmodis, J. (2011) ‘On Law, History and Philosophy’. Sectio Juridica et Politica, Miskolc, Tomus XXIX/1. pp. 119–140
(For greater detail on the direct descent of Roman Law from the Etruscan system see also
Szmodis, J. (2005) ‘Reality of the Law: from the Etruscan Religion to the Postmodern Theories of Law’, Budapest: Kairosz)

[3] Ibid.

[4] Leoni, B.  (1991) Freedom and the Law, Indianapolis: Liberty Fund Inc.,  p.83

[5] Hoppe, H. (2006) ‘The Idea of a Private Law Society’- https://mises.org/library/idea-private-law-society (29/11/2017)

[6] Peden, J. R. (2009) ‘Inflation and the Fall of the Roman Empire’ – https://mises.org/library/inflation-and-fall-roman-empire (11/05/2016)

[7] Augustine, The City of God, Ch. 4 How Like Kingdoms Without Justice are to Robberies – http://www.newadvent.org/fathers/120104.htm (17/11/2017)

[8] van Dun, F., ‘Natural Law’ – http://users.ugent.be/~frvandun/Texts/Logica/NaturalLaw.htm (28/10/2017)