Giambattista Vico on Natural Law

Rhetoric, Religion and Sensus Communis

John Schaeffer

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429575082
• Edition: 1
• Topic: History
• Subtopic: Social History
• Index: History

This book introduces the thought of Giambattista Vico (1668-1744) into the discussion about natural law. For many critics, natural law is not natural but a façade behind which lurks the supernatural – that is, revealed religion. While current notions of natural law are based on either Aristotelian/Thomistic principles or on Enlightenment rationalism, the book shows how Vico was the only natural law thinker to draw on the Roman legal tradition, rather than on Greek or Enlightenment philosophy. Specifically, the book addresses how Vico, drawing his inspiration from Roman history, incorporated both rhetoric and religion into a dynamic concept of natural law grounded in what he called the sensus communis: the entire repertoire of values, images, institutions, and even prejudices that a community takes for granted. Vico denied that natural law could ever furnish a definitive answer to moral problems in the social/public sphere. Rather he maintained that such problems had to be debated in the wider arena of the sensus communis. For Vico, as this book argues, natural law principles emerged from these debates; they did not resolve them.

Part I

Excavating Roman legal history

1 Vico’s legal milieu

Vico’s ideas about natural law emerge from Naples’ legal environment that consisted of three intellectual traditions: The first was Roman law as it was taught in the University of Naples; second was Neapolitan legal practice which was grounded in a mass of precedents, edicts, legislation, common law, and oral tradition; finally, there was iusnaturalist theory which was penetrating Naples from Britain and the continent. The Roman law taught at the University focused on Justinian’s Institutes and the Digest. Neapolitan legal practice was dominated, on the one hand, by meticulous parsing of legal documents, and, on the other hand, by highly rhetorical and improvisational courtroom pleading.¹ Iusnaturalism came to Naples in the Latin writings of Hobbes, Grotius, Pufendorf, and other theorists. Vico draws on each of these traditions as he formulated his theory of natural law. We will look at each of them in turn.

1.1 The Roman background

Theories of natural law are conveniently divided into two schools: the ontological and the de-ontological. The former posits some sort of historical (or mythical) origin in an original contract or social convention. The latter posits the origin of natural law in human reason itself, that is, that the values and rules of natural law are discoverable by unaided human reason and require no account of an origin in human history. The Roman tradition is retrospectively deontological, that is, it foregrounds law and derives rights from reason rather than from some ontological account of origins, yet Roman history, as Vico will claim, reveals stages in the development of natural rights.

The Romans derived the concept of natural law from Stoic philosophy. The Stoics held that law was reason or intelligence having the force to command right action and forbid wrongdoing.² This alone deserved the name of law, while legislation and rules could at best approximate this perfect intelligence for the benefit of leading the less intelligent to right behaviour. Hence, Roman Stoicism derived natural law from reason itself, saying that the wise man embodied the wisdom that ruled the natural world. Enlightened by Stoic philosophy, Roman jurisprudence made two significant contributions to the natural law tradition: (1) the Stoic concept of “right reason” and (2) the concept of the “law of nations” (ius gentium). The Romans found that many of their conquered peoples shared several legal principles. The Romans did not speculate about the origin of this commonality; they simply took it at face value. Ius gentium was the name the Romans gave to principles and norms that seemed to be shared by the various tribes and nations that they conquered. The Roman colonial governors could not impose Roman law in its full extent upon subject peoples, so they developed a “law of nations” that combined principles of Roman law with principles that seemed to be shared by all subject peoples.

The influence of the Stoic doctrine of right reason came into play as the ius gentium developed into a kind of universal law.³ The Stoics believed that the order of the universe was rational, that is, it corresponded to the dictates of human reason. Human beings could order their lives according to the dictates of reason and thus bring their lives into harmony with the natural order. Doing so meant applying “right” reason, that is, the mind’s grasp of the good reflected in the natural order became the criterion of the will’s choices. The Stoics, however, did not believe right reason to be a natural faculty shared equally by all human beings. On the contrary, they believed that most people led irrational lives, following the deceptive attractions of the senses. Only an elite few, the “wise”, were capable of right reason and these few had to achieve it through study and self-discipline.

While the experience of empire and the philosophy of Stoicism formed the body of Roman natural law thinking, rhetoric and Platonism animated that body. Even though Plato developed his philosophy in opposition to Sophistic rhetoric, in her history of Roman law, Tellegen-Couperus points out that from the middle of the republican period, training in rhetoric was essential to the education of Roman jurists. Later, in the second century, Platonic dialectic was included in legal education as a method of systematizing legal reasoning.⁴ The career of Cicero illustrates the intimate connection between rhetoric, Stoicism, Platonism, and Roman law. Cicero was the foremost legal pleader of his day, the author of several works on rhetoric, and a noted Stoic (and Platonic) philosopher.

While Cicero’s career illustrates the components of Roman legal theory, Roman legal practice was driven by rhetoric.⁵ Aspiring lawyers apprenticed themselves to experienced pleaders who oversaw their education. Such pleaders usually were drawn from the patrician class or the class of knights (equites). The most experienced and most renowned of the pleaders became iurisconsults, freelance legal authorities. They did not usually serve as magistrates or even pleaders, but as, literally, “consultants”. Someone involved in a case would approach a iurisconsult, and the iurisconsult, after being informed of the facts, would issue a response (responsa) that articulated how the case should be presented to a magistrate to conform to the law—or he could state that no case existed. This practice placed a premium on the careful interpretation of texts and on control of language to produce careful and exact statements.

Roman law distinguished carefully between fas, ius, and lex. Fas referred to laws that had religious sanctions. To violate one of these laws was a nefas, a sacrilege. Ius usually referred to civil law, and the Romans kept civil law entirely secular. In the Digest of Justinian, the collection of the writings of the jurisconsults on civil law, God is referred to only once, and that in the very last sentence. Lex referred to statutory law, that is, law that had been enacted by a recognized legislative authority. The Romans thus maintained a strict separation between law about religion and law about civil society. The Romans thus “denaturalised” human rights and natural law by foregrounding the empirical, the rational, and the secular: What was natural in the laws of various nations was what they had in common, but not necessarily from a common origin. The Stoics contributed the belief that what brought a given individual into harmony with nature was accessible to reason without revelation or religious mediation: Natural law was natural in the sense of not being divine, that is, it was not endowed by a creator nor learned through religious mediation. Finally, Roman law was case law and thus driven by rhetoric.

1.2 Neapolitan legal practice

Vico was one of the last humanists in Europe for whom rhetoric was still an oral-aural discipline. He taught rhetoric at the University of Naples to students who were preparing to enter the law school. Vico published his notes to his rhetoric course under the title Institutiones oratoriae, and it is clear that he taught rhetoric as oral performance, and extemporaneous performance at that, since criminal trials were frequently held the same or next day that the suspect had been apprehended.⁶ Extemporaneous speaking of this sort featured simultaneity of invention and delivery, that is, the attorney had to create his arguments, their organization, and their style, at the same time. There was no time for revision or polishing (terms that imply a written text). Hence, Vico conceptualized rhetoric as the discipline that prepared the mind for effective ex tempore pleading, and the chief ingredient in that preparation, following Aristotle’s prescription, was to be steeped in the communis opinio, so that arguments would appeal to widely held beliefs and thus increase the chances that they would be accepted. For this reason, Vico put great stock in proverbs and other lore that constituted a society’s oral tradition.⁷

Metaphor was another rhetorical practice that Vico strongly endorsed, and by metaphor he did not mean simply a comparison of two things, but a comparison of two or more relationships—what the poets of the seventeenth and eighteenth centuries called a “conceit”. Highly “conceited” poetry was part of Vico’s milieu, and he participated in it, writing and publishing poetry, including his Gli affetti d’un disperato, generally included in anthologies of Italian literature. Vico conflated poetic conceits with metaphors useful in rhetoric. Vico’s own example, taken from Cicero, was “Rome is the fortress of the world”. The two meanings of “fortress”, a powerful stronghold and a place of refuge, are twinned so that Rome’s strength is seen as a necessary component of its benevolence.⁸ Vico claimed that such a metaphor was an effective means of persuasion because, while the metaphor combined the meanings, the audience or readers had to find the connection for themselves, and so “the hearer seemed ingenious to himself”.⁹ Vico’s Institutes and the later De nostril temporum studiorum ratione claim that metaphors had argumentative force. The hearer who made the connection between the two terms of the metaphor performed a mental act analogous to perceiving the common term in a syllogism. Hence the metaphor could have persuasive force as well as aesthetic pleasure. Vico also claims in the Institutiones that the topoi could serve as a source for metaphors as well as for arguments, since the topoi drew upon the common opinion and experiences of the audience that had to be the basis of any intelligible argument—or meaningful metaphor.

The common opinion, however, was not the only source of arguments or metaphors. A participant in Italian humanism, Vico also defends the literate education of the humanist tradition. The classics, especially the Latin classics, also formed the aspiring advocate. This elite education would have enhanced the lawyer’s ethos, certifying him as a member of a learned profession. Furthermore, the training in the Latin language would have prepared the advocate for the parsing and construing of legal documents (almost always in Latin) that would be necessary in civil trials. This sort of “philology” would play a major role in Vico’s thinking.

1.3 Iusnaturalism

Vico lived in the heyday of iusnaturalism, the theory that natural law could be derived without appeal to religion. Iusnaturalism was the immediate context of Vico’s thinking on natural law, and Grotius, Hobbes, Pufendorf, Selden, Locke, and Hume were the natural law theorists that he wanted to answer.

During the late Middle Ages and the Renaissance, discussion of natural law seemed to concentrate on one question: What was the relation, if any, of the ius gentium to natural law in the Aristotelian-Thomistic sense? Did the existence of the ius gentium prove the existence of a natural law written on the minds and hearts of humanity? Did the ius gentium come into existence because human communities deduced it from the natural law that inhered in human nature? One could view these issues from the perspective of human sociability: Was human sociability natural, and if so, in what sense; and what was the role of reason, if any, in human sociability? During the Middle Ages and Reformation these issues usually were debated in theological contexts: the role of providence, the adequacy of reason unaided by grace, the effects of the Fall, etc. The issues were complicated further during the sixteenth and seventeenth centuries by the emergence of national states and absolute monarchs. On the one hand, if the laws of national states were derived from natural law in the Aristotelian-Thomistic sense, then natural law could serve as a ground of appeal against civil laws that violated it. On the other hand, if natural law was reflected in the ius gentium, then the gentes, the people, were the repository of the standards of justice, not the monarch. The Jesuit theologian Francisco Suarez was the primary defender of both propositions, and his De legibus had the singular honour of being burned by the Protestant James I of England as well as the Catholic Louis XIII of France as being detrimental to the prerogatives of the monarch.

Richard Tuck has argued that Grotius, Pufendorf, Hobbes, and other modern natural law theorists were responding to the scepticism that originated with Montaigne.¹⁰ The sceptics claimed that the almost infinite number of contradictory moral philosophies, as well as the horrors of the wars of religion, discredited all attempts at a normative moral code. The modern natural law theorists responded by citing two universal beliefs: (1) the right to self-preservation and (2) a ban on wanton injury. According to Tuck, all the modern natural law theorists believed that “this minimalist ethics could be used as the basis for a universal moral science”.¹¹ This basis obviously pre-empted religious principles, and jusnaturalists claimed that these “minimalist” principles were minimally rational and so within the reach of the most primitive peoples.

Hugo Grotius (1583—1645) is regarded as the father of modern natural law theory and is usually credited with being the first theorist to separate natural law from religious considerations, to secularize it.¹² In fact, in his On the Law of War and Peace (1625), Grotius attempted to de-theologize discussions of natural law and articulated the principle for which he is most famous:

What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him.¹³

Grotius does not deny the existence of God or providence, but he is claiming that his theory of natural law would obtain even if there were no God or providence. In fact, however, contemporary scholars have argued that religion plays a greater role in Grotius’s thinking than his admirers have admitted.¹⁴ Grotius saw many of the stipulations of natural law as underwritten and supported by Christianity. Nonetheless, Grotius’s primary concern was how reason operated in historical contexts to bring the natural law to social consciousness—in other words, Grotius continued the medieval and early modern project of discovering how the ius gentium related to the natural law.

In his work, Grotius borrowed Suarez’s distinction between two meanings of ius gentium. The first, and according to Suarez the proper, meaning of the term, was the law that obtained between nations. This meaning was Grotius’s primary concern as the title of his work indicates. He was interested in rules of conduct that nation states would observe during war. The second meaning was those common features shared by the law of nations. Grotius referred to these features as “unwritten municipal law”; he denied that these features had any common origin because the various nations did not confer to articulate them. Grotius insisted upon consent as the essential component of law, and he could not see how shared characteristics could signify any commonality without shared consent. According to Edwards, Grotius wished to refute the voluntarist position that law ...