Ferguson on The Ciceronian Origins of American Law and Constitutionalism @HarvardJLPP

Jack Ferguson, U.S. Court of Appeals for the Sixth Circuit, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy (2025). Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

Download the article from SSRN at the link.

Ferguson on The Ciceronian Origins of American Law and Constitutionalism @HarvardJLPP

Jack Ferguson, U. S. Court of Appeals for the Sixth Circuit, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy. Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

Download the article from SSRN at the link.

Ferguson on The Ciceronian Origins of American Law and Constitutionalism @jackferguson100 @HarvardJLPP @NDLaw

Jack Ferguson, Notre Dame Law School, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy. Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

Download the article from SSRN at the link.

Bateman on Socrates and Cicero: Functionality as Justice

C. G. Bateman, University of British Columbia Faculty of Law, has published Socrates and Cicero: Functionality as Justice at 11 International Zeitschrift 11 (December 2016). Here is the abstract.

Socrates and Cicero thought of justice simpliciter as connected to functionality. This paper considers some of the characteristics of what they thought of as justice as well as the confluence of ideas in various selections from both authors.

Download the article from SSRN at the link.

Reid on the Jurisprudence of the Forced Share in the Ancient World

Charles J. Reid, Jr., University of St. Thomas (Minnesota), School of Law, is publishing The Jurisprudence of the Forced Share in the Ancient World: From Cicero to Justinian? in Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today (Routledge: Ole-Albert Ronning, Helle Moller Sighe and Helle Vogt, eds., 2016.

This paper is concerned with the origins of the European doctrine of the forced share, according to which parents must set aside at least a portion of their estate for their children. I begin this paper in Late Republican Rome with the adoption by the praetors of the cause of action for setting aside inofficious wills (the querela inofficiosi testamenti) and the enforcement of the Lex Falcidia, the statute establishing the forced share at one-quarter of the estate. I then consider the emergence of the vocabulary used to justify this mandatory estate practice, focusing in particular on the richly-textured noun pietas. I examine the social background of this practice, looking in particular at ancient concepts of marriage and family. I review Pliny the Younger's criticism of testators who neglected the interests of family members. And I close with the great legal reforms of the law of wills by the Emperors Theodosius II and Justinian.

Download the essay from SSRN at the link.

Cicero in the Law Courts

Jon Hall, University of Otago, New Zealand,  has published Cicero's Use of Judicial Theater with the University of Michigan Press. It is available in both hardcover and paperback. Here is a description of the contents from the publisher's website.

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.
While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

 

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater/?s=description#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

Jon Hall is Associate

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

In Cicero’s Use of Judicial Theater, Jon Hall examines Cicero's use of showmanship in the Roman courts, looking in particular at the nonverbal devices that he employs during his speeches as he attempts to manipulate opinion. Cicero's speeches in the law-courts often incorporate theatrical devices including the use of family relatives as props during emotional appeals, exploitation of tears and supplication, and the wearing of specially dirtied attire by defendants during a trial, all of which contrast strikingly with the practices of the modem advocate. Hall investigates how Cicero successfully deployed these techniques and why they played such a prominent part in the Roman courts. These "judicial theatrics" are rarely discussed by the ancient rhetorical handbooks, and Cicero’s Use of Judicial Theater argues that their successful use by Roman orators derives largely from the inherent theatricality of aristocratic life in ancient Rome—most of the devices deployed in the courts appear elsewhere in the social and political activities of the elite.

While Cicero’s Use of Judicial Theater will be of interest primarily to professional scholars and students studying the speeches of Cicero, its wider analyses, both of Roman cultural customs and the idiosyncratic practices of the courts, will prove relevant also to social historians, as well as historians of legal procedure.

Illustration: Statue of Cicero, Arpino, Italy.

Jon Hall is Associate

- See more at: http://www.press.umich.edu/1879571/ciceros_use_of_judicial_theater#sthash.y3JSHOZS.dpuf

Justness In Aristotle and Cicero

Dmitry Dozhdev, Moscow School of Social and Economic Sciences; Russian Academy of Sciences, Institute of State and Law, has published 'Aequitas' as Real Law: Sources of the European Legal Tradition, in "The Best In the West": Educator, Jurist, Arbitrator: Liber Amicorum in Honour of Professor William Butler (Natalya Iu. Erpyleva and Maryann E. Gashi-Butler, Wildy, Simmonds, and Hill, 2014). Here is the abstract.

Concepts of Justness in Aristotle and Cicero are analysed. Both follow formal approach to Justness, proper to legal science. Looking for model of moral perfection and dignity Cicero appeals to the findings of Quintus Mucius Scaevola (II-I BC), founder of european legal science, who revealed the nature of just in proper application of formal equality (bonum et aequum). For Roman lawyers just person was a person that was following a model of a 'vir bonus' (good man). Abstract qualities of a good man were products of law and at the same time elemenst of legal system. The very conformity to the principles of law makes a participant of legal interaction 'good man'. Abstract notion of 'aequity' (justness) was seen as a source of law. In Byzantine times 'aequity' became a quality of the Emperor, while the just nature of law was substituted by 'justness' of the ruler. Some scholars connect the abstraction of 'aequity' with this new approach and deem Roman law texts corrupted in later times. However, the autenticity of the traditional texts can be proved.

Download the essay from SSRN at the link.

The Influence of Cicero

Mortimer Newlin Stead Sellers, University of Baltimore School of Law, has published "The Influence on Marcus Tullius Cicero on Modern Legal and Political Ideas," in Ciceroniana, the Atti of Colloquium Tullianum Anni (2008). Here is the abstract.

Marcus Tullius Cicero is the father of modern law and politics. Cicero's influence was significant throughout subsequent European history, but never so much nor so directly as in the emergence of modernity and in the development of modern law and constitutional government. The early moderns became faithful apostles of Cicero's thought and ideals because their world and political circumstances were in many ways closer to those of Cicero than to those of any intervening centuries. The influence of Cicero's legal and political ideas on the modern world illustrates the decisive importance that the study of history can have on legal innovation and social change. The modern world would not have developed where it did, when it did, nor as it did were it not for the life and writings of Marcus Tullius Cicero.

Download the essay from SSRN here.