the interpretation of the law which private citizens were once
O Q
accustomed to seek from their kings (5.3).
We may think that if laws replaced personal absolute rule, they were an improvement on it, but Cicero, like Plato in the Volitions,
describes the transition as an unfortunate necessity, but one which need
q q
not be binding in an ideal situation. Neither, it seems, did these laws need to apply in moments of crisis. In the Eleventh Philippic,
Cicero asked by what law or right Cassius' activity in Syria could be justified, and himself supplied the answer:
Eo quod Iuppiter ipse sanxit3 ut omnia quae rei publicae
salutavia essent3 legitima et iusta haberentur. Est enim lex
nihil aliud nisi recta et a numine deorwn tracta ratio3
imperans honesta3 prohibens contraria. Huic igitur legi
paruit Cassius3 cum est in Syriam profectus3 alienam provinciam si homines legibus scriptis uterentur eis vero
oppressis suam lege naturae {Phil. 11.28).
Traditional definitions of magistracy break down, for in conservanda
civium libertate3 esse privatum neminem (De Rep. 2.46). Law, then, as
we meet it in Cicero, can be no bulwark against or obstacle to the rule of one man.
PHILO
'Law is nothing else than reason prescribing what should be done and forbidding what should not be done' (Praem. 55). This Stoic
38 'Non credo s ’abbiano a spendere molte parole per dimostrare quel ehe e chiarissimo a chi abbia seguito la scorsa delle dottrine degli altri filosofi e storici: qui si ha appunto ehe la funzione piü tipica della regalitä e 13explanatio aequitatis , lo stesso ehe interpretatio
iuris (per ciö ehe non vi sono leggi prima e all’infuori dei re), e ehe
i privati chiedono al re ... il i u s: e il re quindi e interprete, e
arbiter litis, giudice, ehe non ve n ’e altri privato, e tutto si attua
per mezzo di risoluzioni regie’ (Filippo Cancelli, 'SullJ origine del diritto secondo un motivo ricorrente in scrittori ellenistico-romani, e Cicerone: "de Re Publica" 5.3', Studia et Documenta Historiae et Iuris,
37 (1971), p.336.
39 Omnes antiquae gentes regibus quondam paruerunt. Quod genus
imperii primum ad homines iustissimos et sapientissimos deferebatur (De Leg. 3.4). Note too De Off.2.42, referred to above, which clearly shows
definition of law occurs fairly frequently in Philo’s works, and shows how he had adopted one important element of the contemporary Graeco-
Roman culture. It fails to show the way in which he modified it to
embrace the Jewish law, or rather to apply to this law alone. The result of this modification had little influence on contemporary
political thought. Yet it is important to consider this process, for it is merely the most dramatic instance of the many reworkings of themes taking place in the centuries of the Hellenistic and Roman Empires.
Whether Philo was initiating his fellow-Jews into the deeper mysteries of the Torah, or writing an apologetic work for sympathetic
Gentiles, the Law was his constant concern. The books of the Exposition
of the Law, probably written to reveal to non-Jews the treasures of the Pentateuch,4 0 deal with many topics, cosmology, the principles guiding the Jewish nation and their application in rules and ethical attitudes, the sanctions attached to these prescriptions, and the incarnation of the Law in persons. For all of these, Law is the term covering the right order which has been imposed by God, the supreme lawgiver, and mediated through the Logos.
In the De Opifieio Mund'i the stage is set. As Philo noted else where (Vit. Mos. 2.37), 'the making of the universe constitutes the
beginning of the laws'. Here then we see man and universe both created
after a pattern and subject to a law. This law is in Stoic terms right
reason, but for Philo this does not mean simply cosmic harmony. It
signifies also a divine ordinance and this presupposes a personal
director (see Opif. 143). This aspect of the law of nature, the source of all law, had not received such stress in the writings of Hellenistic philosophers, if we may judge from the fragments of their work that we
possess. Rather, Nomos and the deity had tended to become
indistinguishable.
Plato identifies the Lawgiver as Creator and Father transcending
every virtue and excellence {Opif. 7-8) . This transcendence does not
deter Philo from using the language of political theory to emphasize the overriding control of God, who, like a charioteer or a helmsman, directs
40 On this, see Erwin R. Goodenough, 'Philo's Exposition of the Law
each thing where he wills 'according to law and right' Kara vopov xau 6l mnv (Opif. 46). Philo's law then is a personal communication from
God. Pre-classical Greece had regarded law as a gift of a god or hero.
What Philo claimed for the Jewish law, however, was uniqueness as the revelation of the will of God, as well as universal applicability.
When a contrast had developed in Greece in the fifth century
between written and unwritten laws, polis laws often appeared second-
best. As the prestige of the cities declined in the next century, it was not surprising that unwritten laws should come to refer no longer
to local custom but to a natural or cosmic right order. Thus the Stoics
discerned a law of nature in what was the true polis of men, the entire
cosmos, the home of all that was mortal and immortal. Only by living in
accordance with it could man attain to virtue and hence happiness. In Philo's justification of the order followed in the Pentateuch, he stresses the specifically Jewish addition to this point of view. Moses, he says (Vit. M o s . 2.48), began his account with the creation of
the universe to show that the same person, the father and creator of the world, was also truly its lawgiver, and that the man who obeys the laws will take pleasure in following nature and being in accord with the
universal order. A little later, Philo explains that to describe an
earthly city's origin, as Plato did, for example, and prescribe laws appropriate to it is to demean law. The genesis of the 'megalopolis', i.e. the universe, was, however, suitable as a starting point, as the laws to be described later were the very image of the constitution of the universe (see Vit. Mos. 2.49-51).
The Greeks had turned to a supra-terrestrial law as the norm partly
through dissatisfaction with the actual laws of cities. Philo is able
to turn this to good account by asserting with the backing of non-Jewish
sources that civic laws were full of error. The exception was, of
course, the law of Moses. It was Philo's aim to demonstrate that
the law of God handed down by Moses reflected the nature of the universe, and to reveal the failings of all man-made laws, which are mere additions to nature, excesses without avail (see Jos. 30-31, and cf. Mut. 104) .41
His attack on the actual laws in force among other peoples makes much of their liability to change. Philo also uses his discussion on
the nature of the politician in De Josepho 28-31 to express his scorn of the laws, so-called, passed by the crowd, the real ruler, because it is not content with the law of nature. A Sophist condemning all civic laws as unnatural could not show more distrust of the processes of society than Philo seems to evince here. Yet Philo does not despair of
organized society, simply because his scepticism in one respect is caused by his certainty as to the right way to run the state. The task of the politikos as described in De Somniis 1.220-224 is difficult and his life is defiled simply because his soul has not been host to the biblical guidelines which are the source of well-ruled cities.42
The Law of Moses, as a positive law, might appear to outsiders simply as a useful, if somewhat idiosyncratic, set of instructions delivered by a tribal god to his people. As such, it did not affect non-Jews, except for rousing their antagonism if they experienced its exclusiveness. Philo realized only too well that for the Jews to bring upon themselves the dislike and prejudice of the people with whom they had to live was to threaten their very existence. He did not write merely for prudential reasons, however, but because of his philosophical inclinations he could sympathize with the Hellenistic thinkers who had seen law as a metaphysical reality rather than a set of rules. It was clear that his main task was to find a way in which the written law of Moses could be equated with the law of the philosophers.
Philo, like the Stoics, saw positive law as an insufficient guide
oux apxea$evxeg rots xps cpuaews deayoug xd 6d£avxa auycpe'petv xotvf) xotg
oyoyvwyoatv oydAoug xauxa voyoug euecppy t o a v . uoxe etxdxwg xpoa§pxat
yaAAov ail waxa ye'pog TioAuxetau ytag xpg xaxa xpv cpuauv upoa^pxat yev
yap oil xaxa udAeug voyou xou xpg cpuaewg opdoü Adyou, TipooSpxp 6d eaxt xoAuxtxog avpp xou ßuoüvxog xaxa cpuauv.
Mut. 104: o&xog xat av-dpcoTteua dedwv Mat e§p vdywv xai ßeßpAa eepwv
Kai dvpxa adavaxwv Kail ouvdAwg xd öoxetv xoö edvau upoxtya. xat
euuxoAypaag auxoxeAeuaxog eilg xpv xoö ouyßouAou uapepyexau xa£tv, ucppyouyevog xtp aocpw [yp] dvaöuödaxeuv a yova yavdavetv a£uov, "xa Ttpoaxayyaxa xou $eou xau xov voyov" (Exod. 18,20), aAAa (yp) xa xpog
aAApAoug avdpooTtiov ouyßdAaua, xpg axouvwvpxou oyebov auxua xouvwvdag.
42 Cf. Praem. 65-6: odxog eoxiv 6 aauvpg olxog, 6 xe'Aeuog xat ouveyps
ev xatg ppxatg ypacpatg xau ev xaug xa-d ’ utovouav aAApyopuaug, os eAaßev
a§Aov, xa^arcep editov, pyeyovuav xwv xou edvoug cpuAwv. ex xoube xou
for right living, and accepted their conclusions on the pattern of behaviour to be found in the cosmos.43 He shows his readiness to adopt
their terms but alter their reference most clearly in his use of the expression 'unwritten laws'. For him they generally refer to laws that are not in the Decalogue, or else, by extension, to individuals. He endeavoured to describe the patriarchs in a way that would win the approval of the Gentiles, by showing that these untutored men of virtue did, without the law, what the law commanded. Hence the law, when it came, was truly the law of nature, yet the same could not be said of the divergent views of other races.
Thus in the introduction to De Decatogo he explains how he will pass from describing the patriarchs — the founders of the Jewish nation and themselves unwritten laws — to give an account of the written laws
{Dee. 1). Here we have the expression 'unwritten laws' used in the same
ways as at the end of the De Abrahamo: t o l o u t o s 6 ßbos t o u npmxou xau apxnybxou t ou edvous eaxtv, ms yev e v l o l (pnuouou, voyuyog, ms 6 ’ 6 m p ’ eyoü Adyog e6eu£e, voyos auxog mv xat deoyog aypacpog (Abr. 276). Else where (e.g. Spec. Leg. 4.149-150, Virt. 194), Philo suggests that the
lives of the virtuous contain in themselves examples of good conduct, or unwritten laws.
This is Philo's own contribution to personalizing the laws, but he also avails himself of the notion of living law, which had come into common use in political discussion. This refers once to the patriarchs (Abr.
5) and is in the same vein as the description of them as unwritten laws.