Scholia Reviews ns 4 (1995) 2.

D. H. Van Zyl, Cicero's Legal Philosophy. Roodeport: Digma Publications, 1986. Pp. x + 116. ISBN 0-86984-645-0. R24.

D. H. Van Zyl, Justice and Equity in Cicero. Pretoria and Cape Town: Academica Press, 1991. Pp. xi + 317. ISBN 0-86874-399-2. R88.

D. H. Van Zyl, Justice and Equity in Greek and Roman Legal Thought. Pretoria: Academica, 1991. Pp. ix + 177. R66.

David E. Meadows
McMaster University, Hamilton, Ontario, Canada

The author of these volumes is a judge in the Supreme Court of South Africa. D. H. Van Zyl is also a very prolific academic writer who has penned numerous articles and monographs on various legal subjects as wide ranging as modern South African law and Roman legal history. The present works under consideration all stem from his interest in legal philosophy in general and his admiration for Cicero in particular. As Van Zyl notes in his preface to Cicero's Legal Philosophy, there have been many studies devoted to `Cicero the lawyer' and `Cicero the philosopher', but there has been a dearth of comprehensive studies (i.e. studies which embrace all of Cicero's works, as opposed to commentaries on De Re Publica or De Legibus) solely devoted to the legal philosophy of Cicero. To a certain extent, each of the works under consideration attempts to fill this void, with varying degrees of success. They also share a number of other features, both good and bad: e.g. in almost every case where a primary source is cited, the Latin text of that source is given in a footnote (taken from a Loeb for reasons of `accessibility'). On the other hand, Van Zyl writes in a very dry, legalistic style which is hardly engaging and when combined with the philological approach which he often favours, is often downright soporific. Be that as it may, these works are dealing with an important subject and as such should not to be ignored.

Cicero's Legal Philosophy (CLP) represents the author's first foray into this (perhaps surprisingly) untrodden ground. In his introductory chapter, Van Zyl begins by acknowledging the two points which make up the scholarly consensus about `Cicero the philosopher': first, that he was eclectic and drew upon the teachings of many schools, and second, that he was not an original thinker. Van Zyl does not dispute these views but would like to demonstrate that Cicero did make an important contribution in the realm of legal philosophy (p. 2). Unfortunately, it is clear that the author is not quite in control of his material and commits numerous `sins' which simply do not belong in an academic monograph. For example, the second chapter of the work contains a brief biography of Cicero, touching upon his early life and education, his legal and political careers, and his private life. It is in this chapter that Van Zyl's admiration for Cicero becomes abundantly clear. Almost everyone who contributed in some way to Cicero's development is marked out as being `great' or `famous' (in addition to Cicero himself, we have the great Roman dictator Marius, the great orators Crassus, Sulpicius Rufus, and Marcus Antonius, the great rhetorician Apollonius Molon, and the famous lawyer Quintus Mucius Scaevola), as if to suggest that Cicero's own `greatness' and `fame' were inevitable by association. Admiration of Cicero also leads to some unsupported assumptions and favourable glossing over of some features of Cicero's career. For example, Van Zyl suggests that Cicero's so-called peregrinatio academica (79-77 B.C.) was not occasioned by his defense of Sextus Roscius in 80 B.C., but rather by a desire to further his own education (p. 5). Similarly, in a section devoted to Cicero's political career, the circumstances surrounding Cicero's election as consul (i.e. the weak field and the cloud of suspicion hanging over Catiline's head) are skipped over (p. 9). Cicero is also given rather favourable treatment in a section devoted to his private life: `Although Cicero must have been very fond of Terentia ... [she] was, more likely than not, rather shrewish and more concerned with her own property interests and money matters than with Cicero's ideals and progress,' (p. 17 -- how dare she?). Similarly, Cicero's failed marriage to Publilia had nothing to do with his bereavement from Tullia `but more probably because he was frustrated and unhappy at the thought that his ideal, the continued existence of the Roman Republic, was dead and gone,' (p. 18).

The remaining chapters, dealing with `The Evolution of Cicero's Legal Philosophy' and `Evaluation of Cicero as a Legal Philosopher' need not detain us long here since Van Zyl goes over this ground again -- with much greater effect -- in Justice and Equity in Cicero. Suffice it to say that classicists of nearly every stripe will find something to cringe at in CLP. The ancient historian will shudder at numerous references to `Mark Anthony' (pp. 6, 11, 12) and the apparent confusion of the latter with the orator who fought against the Cilician pirates (to judge by the index); the legal historian will wince at the attribution of Digest 44.3.14 praef. to Quintus Mucius Scaevola (cos. 95 B.C.) when the liber quaestionum publice tractarum is clearly the work of the second century A.D. jurist Quintus Cervidius Scaevola (p. 62, n. 295); no classicist will be happy with the mechanical philological approach to philosophical terminology which often consists of little more than paraphrases of Cicero's words or lists of important concepts in Cicero with no accompanying analysis (the worst examples are to be found on pp. 67-8, and 72). As such, Cicero's Legal Philosophy is best left on the shelf.

Justice and Equity in Cicero (JAEIC) is a revised version of Van Zyl's D. Litt. (Latin) thesis and represents a more scholarly approach to the legal philosophy of Cicero and happily irons out most of the wrinkles inherent in CLP. As with the first book, JAEIC begins with a biographical chapter giving a brief rundown of Cicero's life and career but the blatant admiration for Cicero, and the concomitant unwarranted assumptions and speculations, are gone. Similarly, as with the first book, in later chapters Van Zyl adopts a philological approach but the accompanying analysis is rather more satisfying. There are still lists of important concepts, but in context they seem more reasonable than Van Zyl's previous attempt. It is clear that five years of sober second thought have done much to clarify the subject in Van Zyl's mind. For example, the second chapter is devoted to presenting `Cicero's Moral, Political, and Legal Philosophy as a Framework for his Thought on Justice and Equity' and represents a substantial reorganization and rethinking of the initial sections of `The Evolution of Cicero's Legal Philosophy' mentioned previously. To give but one example of the nature of the improvement (and to an extent, the overlap with CLP), under the rubric `Philosophy of Life' in CLP, Van Zyl begins with the following, rather vague, statement: `The golden thread running through all Cicero's thought and ideas on philosophy is the need to achieve the "greatest good" (summum bonum) by the application of the cardinal virtues, by the leading of a virtuous, moral and ethically correct life, and by bringing man back to his true nature (natura) in conformity with reason, justice, and equity. He is hence, essentially, a moralist and an idealist, who links his philosophy of life inextricably with his approach to law and government,' (p. 25). In JAEIC a similar statement appears, but it has changed markedly for the better: `The golden thread running through all of Cicero's thought on moral philosophy is the need, and indeed the desire, of all persons to achieve "the greatest good" (summum bonum). This is done by a leading a virtuous, moral, and ethically acceptable life in accordance with the "cardinal virtues" of wisdom, justice, fortitude, and self restraint. Its purpose is to bring man back to his true nature (natura), in conformity with reason, justice and equity. In this regard, Cicero is essentially a moralist and an idealist, who links his moral philosophy inextricably with his approach to law and good government as prerequisites for a stable and harmonious society,' (p. 34). The changes are subtle, as can be seen, but do much to give the passage the meaning Van Zyl hopefully originally had intended.

The result of these and other changes is a generally thorough treatment of all aspects of Ciceronian philosophy. To continue the second chapter of JAEIC, Van Zyl gives a rather good overview of Cicero's moral, political, and legal philosophy. In a section devoted to `the Summum Bonum', for example, he demonstrates how and why Cicero rejected both the Epicurean and Stoic definitions of this concept and instead opted for that presented by the New Academy. Cicero's eclectic nature is also seen in sections devoted to `Honestum and Virtus: the Cardinal virtues', `Humanitas', `Morality' and `Religion'. Van Zyl then proceeds to argue that Cicero's moral philosophy was linked to his political philosophy and notions of an ideal state, primarily through the application of virtus. Similarly, Cicero's legal philosophy is shown as leaning heavily upon his moral philosophy and Van Zyl also deals with such important concepts as ratio recta, lex, and ius (as well as ius gentium, ius civile, ius publicum, and ius privatum) and how they relate to the notion of natura. In this, as well as in other chapters, Van Zyl is to be commended for not confining himself to the `obvious' works, such as De Re Publica and De Legibus to include others such as De Finibus, De Officiis, and assorted letters and orations. There then follows two chapters centering on what are likely the most important concepts in any discussion of legal philosophy: justice and equity. While the term iustitia is related to numerous other philosophical terms by Van Zyl, Ciceronian iustitia can be simply summed up with the phrase suum cuique tribuere; a phrase which can ultimately be traced back to Plato. Ciceronian aequitas is somewhat more difficult to summarize as it (or related phrases such as aequum et bonum) often seems synonymous with iustitia but in practical application (e.g. in the Pro Caecina) seems directed at mitigating the harsh aspects of the strictum ius. There follows a rather confusing chapter which put the Ciceronian concepts of justice and equity in various contexts (i.e. in the context of his own personal circumstances, in the context of the various philosophical schools which influenced him, and in a comparative context with later writers such as Augustine, Aquinas, Calvin, Grotius, and Kant) and finally, a brief conclusion.

Justice and Equity in Greek and Roman Legal Thought (JAEIGALT) is intended to act as a supplement to, while at the same time being itself supplemented by, JAEIC. As such, it really cannot stand on its own but does provide much background material to JAEIC for readers with little or no classical training. There is nothing really deep here: the introduction provides brief overviews of `Greek Law and Legal Thought' (3 pages), `Roman Law and Legal Thought' (6 pages), and a rather good overview of `The Philosophical Foundations of Greek and Roman Legal Thought' (26 pages). This latter section looks primarily at notions of justice in the pre-Socratics, the Sophists and Socrates, Plato, Aristotle, the Stoics, Epicureans, Sceptics, and `Eclectics'. This is followed by a chapter which considers `Justice in Greek Legal Thought' and begins by considered the relationship between Themis and Dike in Hesiod. This is followed by brief discussions of logos and nomos in Anaximander, Pythagoras, and Heraclitus (which largely repeats what was mentioned in the appropriate section of the introduction) and of nomos and physis in Protagoras and Socrates (which also adds little). The nature of Platonic and Aristotelian justice are given rather fuller treatment. A chapter devoted to `Justice in Roman Legal Thought' is little more than a summary of the third chapter of JAEIC. The ensuing chapter of JAEIGARLT goes to great pains to find a legal-philosophical definition of equity in Plato's Statesman and Laws and settles on making equity a companion of justice. A more clear presentation with the same conclusion comes from a brief look at Aristotle's Nichomachean Ethics and Rhetoric. The final chapter, devoted to `Equity in Roman Thought' is, once again, little more than a summary of the fourth chapter of JAEIC. A brief conclusion closes the work.

Of the three, Justice and Equity in Cicero comes closest to the author's original intent of giving Cicero's legal philosophy a full monographic treatment. It is an important contribution which expands and improves greatly upon Van Zyl's initial, often confusing effort: Cicero's Legal Philosophy. As such, Van Zyl has rendered his previous work obselete. Justice and Equity in Greek and Roman Legal Thought is, to a large extent, one more trip to a rapidly drying well, but will offer some useful background material to Justice and Equity in Cicero. Taken together, however, the two works do offer a more than adequate overview of ancient legal philosophy in general.