is, in the broadest sense — appears. Because his duty as legislator or as king is the same as that of the law, to command what is right
and to forbid the opposite, it is reasonable, Philo concludes, to term him 'living law' (Vit. Mos. 1.162 and 2.4). Indeed, the political gifts are effective only in association with the tokens of divine approval
öuöaoxaAeCa cppovyoemg xau öuxauoouvng xat, oatoxnxos, ev otg xau n xhg aAApg ctpexfjg yexoutotriöLS yeyaAoupeumg ötepeuväxat.
43 See e.g. Abr. 16: u o X X a ycv odv ol voyo^cxai, noAAa 6e ol uavxaxou vdyou Tipayyaxeuovxab nepc t o u xas 4>uxcts xmv eAeudepmv eAitdömv xPh0T^v avaitAnaau• 6 6 ’ aveu uapauveaems 6uxa t o u xe:Aeuo§nvaL yevdycvos eueAitus aypacpm yev vo'ym 6c itaAuv auxoyadeu xyv dpexpv xauxriv TiemLÖeuxciL, ov y cpuoug ednxe .
and providence such as the gift of prophecy.
If law can be embodied in one man, it cannot be brought about simply by the agreement of the members of the community. Philo insists on the need to believe that the laws are not the inventions of a man, but quite clearly the oracles of God {Deo. 15). Law may therefore be described as divine (see Opif. 143, Migv. 130, where the law is defined as divine reason) and in this way we may see an individual who has God's favour described as ’either God or his Logos or divine l a w ’ {Jos. 174). This occurs to be sure in a remark of Joseph's brother, and is an
expression of wonder, not a statement about God or law as such, but the closeness that it implies between person and abstraction shows how strong was Philo's tendency to personify law, while placing it in a context where its cosmic significance was most fully displayed. This could only reduce the direct social impact of law.
Elsewhere the laws and customs of human contrivance are measured against those of nature. They are generally found to be far inferior but in association with right reason may have apart to play in fitting the individual for life. Law in the polis sense is not present here, so poses no threat to the adoption of monarchical government as an ideal. But law in the senses we have examined, though occasionally identified with or coming through individual leaders, still maintains a certain
independence because of its religious basis. This very fact, however, also meant that for Philo it could easily be detached from its social setting, and so was unlikely to appear in opposition to the ruler who claimed to act in accord with it.
Philo, as a Jewish writer, was not able to vest a Gentile monarch with the authority of the law of the patriarchs in his theorising, but he could go very close to this in the Legatio and clearly found no difficulty in the idea on political grounds.
SENECA
From Seneca, we receive a very different kind of evidence, and as our first Roman theorist of the Empire, what he has to say about law is
of particular significance. For him, law was far from being a univocal term, and of its various meanings not the least important was that
derived from the Stoic philosophy he espoused. This law of nature is
indeed as much his concern as any state law despite his political
involvement. It may refer to the structure of the universe (Cons. adHelv.
6.8), where all is movement, and thus explain the process of death in
mankind.44 In fact Virtue recognizes difficultas temporum as a law of
nature (Vit. Beat. 15.5). It is then part of the wise m a n ’s task to
recognize nature’s rule — natura enim duee utendum est (Vit. Beat. 8.1)
— and as a good Stoic, Seneca saw this not simply as accepting the
inevitable but as a positive step towards virtue: ab ilia [natural non
deerrare et ad illius legem exemplumque formari sapientia est (Vit. Beat.
3.3). This link between an amoral decree about m a n ’s destiny and the
behaviour expected of man allows the law of nature to acquire an ethical content and to appear in some cases almost the equivalent of unwritten law (in the sense used, for example, by Sophocles and Xenophon). No one departs from the law of nature and sheds the man in him to such an
extent that he is evil merely for the sake of being evil (Ben. A.17.3). Law in this sense has little connection with political life and consequently it is not surprising to find that the distinction between the Empire and the world where the law of nature holds sway is often
stressed: officia civis amisit? Hominis exerceat (Tranq. A.A). This
is quite different from the attitude common in the days of the Republic
when the Stoic oikoumene and the Roman Empire were seen as coterminous.45
Seneca goes so far as to acknowledge two commonwealths: duas res
publicas animo complectamur_, alteram magnam et vere publicam3 qua dii atque homines continentur ... alteram„cui nos adscripsit eondieio nascendi (Otio A.l).
In the De Clementia, the political essay addressed to Nero, Seneca
cannot maintain this division and must therefore turn to an idealized
44 Cf. Cons. adHelv. 13.2: si ultimum diem non quasi poenam3 sed
quasi naturae legem aspieis ex quo pictore me turn mortis eieeeris3 in id nullius rei timor audebit intrare.
45 'Prima che "Romano", Seneca si sente "uomo": prima delle leggi positive di Roma vi e la legge di natura, che stringe fra di loro tutti gli uomini proprio in quanto sono uomini', Italo Lana, Seneca e la
portrait of the ruler. In his endeavour to fit him into the cosmic framework adopted elsewhere, he describes the character of the ruler and explains that his power is not harmful, if adjusted to the law of nature, and this we have a right to expect, as nature herself fashioned the king
{Clem. 1.19.1-2).
We can see that Seneca’s aim is to remove monarchical rule from the area of political debate and conflict, where a variety of forms of
government could compete for approval. Had he been a consistent
advocate of the tranquil life of retirement, he would have had no need to develop such a theory. State rule and the rule of the cosmos would have been kept strictly separate, the one governed by imperfect human law or the will of one man, the other by the law of nature which is the law of God. Only Seneca’s preoccupation with the status and value of political activity compelled him to use the rhetoric of politics to join the two spheres.
Law in the sense of a body of regulations for a state is not given any basis in nature. Before such laws existed, one man was both the leader and the law to his followers: eundem habebant et ducem et legem (Ep. 90.4), for it is nature’s way that the weaker should submit to the more powerful (ib.). This is a theme going back to Plato and common in Pythagorean political thought. The best person and thus the most power ful is of course the wise man, and for Seneca such an individual played the part assigned to the demigods in Plato’s Age of Kronos. Law
embodied in a person, then, makes its appearance at the beginning of man's history. Law by itself develops not from man's sociability but
from the vices of men whereby a kingdom became a tyranny and law is needed to repair the situation.45 It is therefore a remedy for a failure on the part of society (cf. its introduction in the Poli-tdcus) and here too the wise make up for the deficiency.
46 'Die hellenistische Theorie der Gesetze als einem "notwendigen Übel" entspricht also ungefähr derjenigen Senecas. Aber die Begründung ist jeweils eine andere: Der hellenistische König bleibt nach wie vor vollkommen und "sündlos"; Nachlässigkeit und Fehlerhaftigkeit der anderen Menschen machen die Gesetze nötig. Bei Seneca liegt es entsprechend dem bisher Beobachteten, besonders der Betonung des
Leistungsprinzips, durchaus im Wesen jenes Urkönigs, dass er den Weg zum Schlechten einschlagen — und zum Tyrannen werden kann', Adam, Clementla
Lawgivers such as Solon and Lycurgus bestowed benefits on the rest of mankind, through a fixed body of laws, so that law is the result not of nature but of art. Yet the social hierarchy can still be said to maintain the natural order — the wise prescribing for the less wise — and the wise man is the means of bringing the law of life to light and making life conform to universal principles (
Ep.
90.34). Art therefore builds on nature: nature does not work its will unaided. Indeed nature as it applies to man always needs to be interpreted in a specific way which takes account of reason, and its meaning is thereby changedconsiderably.
Seneca tends to downgrade law as legal prescription at the same time as he elevates custom. The conventions of human life are more binding than any law {Ben. 5.21.1). Here Seneca sees law as inevitably restricted in its range. We may compare Aristotle's comment that the law in itself has no power to secure obedience save the power of custom
{Politics 1269a). Law also fails to account for a large portion of the
moral life {Ira 2.28.2), for the principle of duty has a far wider application than that of law. Seneca is the typical Stoic here when he exclaims at the multitudes of demands laid upon man by a sense of duty, by humanity, generosity, justice and integrity, qualities all outside
the statute books.
Though Seneca views written law primarily under its negative aspect:
leges a scelere deterrent3 praecepta in officium adhortccntur {Ep. 94.37),
he concedes it may yet have an important role in leading to right behaviour if it not only commands but also teaches. What shows this is that
states with defective laws will have defective morals {Ep. 94.38). Here the pedagogic role of the law makes it similar to a ruler whose task is also to educate rather than to command.
Laws that win commendation from Seneca are not those developed in the life of the forum. The benefits bestowed on mankind by Zeno and Chrysippus were greater than if they had carried laws and in fact they did so, not for one state but for the whole of mankind {Otio 6.4). Again we see here that actual governments and external regulations are unimportant when placed alongside the moral injunctions which accord with nature and are brought into prominence by philosophy.
Because state law is so limited, one of the main prerogatives of a king is his power to preserve life by actually breaking the law. He alone can do this, while everyone is able to break the law to destroy life {Clem. 1.5.4). The personal intervention of the ruler supplements the deficiencies of the law, just as for Aristotle the application of equity makes up for the lacunae in the law.
Paradoxically, however, Seneca also claims that the law is derived from the ruler, for Nero is told that he can bring it into the light of day {Clem. 1.1.4). The image is of the ruler bringing forth laws into light from darkness, and the immediate reference of Seneca's remark to Nero is no doubt to the transition from Claudius' reign to his
successor's; yet we should not ignore the connection thus made between the ruler as source of law, and the philosopher who is also the means of bringing into view the law of nature
{Ep.
90.34). Seneca is still farfrom making the ruler the embodiment of the law and indeed he does not precisely attribute to him the functions of a legislator. The monarch is to make use of law — considered as a good — and transcend it when it is seen as a limitation on truly kingly actions.
Certainly Seneca does not look to law to effect the smooth
functioning of state machinery. The task of the lex is to inspire, as law of nature, the man seeking true wisdom, so that he becomes contented with his situation, and shapes his actions accordingly
{Ep.
90.34). Ifthese actions are to be political, they may be so in an informal way, and just as fruitfully, Seneca believes, as when they are related to the exercise of an official position. No king need then fear lex as his rival, unless he clearly transgresses the law of nature, a possibility which in theory Seneca does not admit, even though his examples of evil behaviour in the case of Gaius and other rulers are many.
Musonius Rufus enjoyed the favour and suffered the displeasure of several monarchs. Dio Chrysostom, Plutarch and Pliny the Younger were contemporaries who all took part in some way in public life under the Empire. These later writers were to witness further instances of unworthy rulers who quite clearly did not abide by the law of nature. What response did this fact evoke in them?
MUSONIUS RUFUS
Musonius Rufus comments on the king's relationship to law just once in his speech to the 'king' of Syria, but this is a most important
instance for us. He tells how the king needs to be blameless and
perfect since he must be living law 'as the ancients called it'. This
involved euvopuav yev nat oyovotav \ir\xuvu>\icvov, avoyuav 6e xau axaotv dteupyovTa (p.283) and the way to arrive at this state is of course through learning, coupled with possession of an outstanding nature
(p.284). There is nothing here about any other practical information
that the king should possess, or about his subjects and how he should
relate to them by means of the laws. For Musonius the personal law that
is the ruler is all that counts.
DIO CHRYSOSTOM
Dio, as well as writing specifically on kingship and tyranny, also
composed essays on law and custom; so that we find in his works
allusions to the position of law in a variety of contexts. Immediately,
we are confronted with contradictions, but it is not surprising that the value of law varies between Orations 75 and 76 which are very much in
the style of compositions of the New Sophistic school, made to order to
express a particular point of view. For on the one hand we find law as
necessary to public life, as öudvoua is for the sanctity of the
individual (75.10), while,on the other, in Oration Seventy-Six law is necessary only because all men are not good, and a weakness in law is that it cannot bind kings as custom does (76.4 — a piece of special
pleading if ever there was!). The simplicity attributed to law in one
essay is a quality of custom as opposed to law in the other (see 75.4 and 76.4) .
In a wider sense, law derives its importance from being closely
linked with the reasoning element. Just as someone without reason is
not in fact a man, neither is there a
polis without the element of law,
and lawfulness presupposes an intelligent and ordering power (36.20). In the universe as a whole, this reasoning power is most manifest, under a rule of the most righteous and perfect, and with Tuyns tc dyadqs nauöauyovog oyoi'ou k ü l tpovouag the world is guided, and man also, since he
has a common nature with the universe, for they are both ordered by evl
■deoytji xai voytp, and share the same polity. This is therefore the true source of voyos, allied here with the more lofty word Scoyos which
strongly suggests the imposition of a decree. A man becomes voyuyos as
well as OeocpuXns nal Moayuos by defending and not opposing this polity (1.42-3).
Like Isocrates, Dio sees cpuaus as making up for the omissions of
the law — boys share citizenship with men, being citizens by nature
though not performing the duties of a citizen or having a share in law
(36.23). In this respect law needs supplementing, although it is not
shown competing with a standard that is more objective and therefore superior. Yet to establish the laws of nature as the true guide for man (see 80.5) is to decry the laws made by man. Even the laws of
Solon and Draco, of Numa and Zaleucus were far from perfect, and to claim that justice resides in laws made by men themselves strikes Dio as ridiculous; he makes the contrast as impressive as possible. On one side is the law of nature, abandoned and slighted by men, on the other, tablets and statute books and inscribed pillars treasured for the
legislation they contain, and this Dio believes is a proof of the folly of men (ib.).
When Dio discusses the requirements and characteristics of the polis, he defines it in typically Stoic terms, as a mass of men dwelling in the same place and regulated by law (36.20), but he does not then explain whether this refers to the divine law of the cosmos or that made by man. Neither does he propose that the two may be harmonized in
actual legislation as Cicero had done.
Laws exist because of orders and regulations, but Dio does not suggest that they should be arrived at by consultation or after
ascertaining the popular will. The very general sense in which Dio uses
the term means that he can accord a life following justice and the laws even to the Scythians despite their lack of the other marks of
civilization, and their nomadic life (69.6). He is not interested in describing their social structure and showing how this can be so, but wishes simply to present a Stoic point of view on the, to him, useless
accretions of sophisticated urban life. He can then hardly place much value on formal political structures of the city or empire.
In the essays on kingship, law is placed under the control of the king, but is not described consistently. Because the king is greater
than the laws, he has a need of the most scrupulous justice (3.10, cf. 62.2-3). This indicates that he cannot be called to account for his actions by any tribunal in the state, but only by his conscience or by divine justice. Further on in the same essay Dio explains this even more frankly: äpxn is the lawful ordering of and caring for men in