I'm going to fill in some of the empty trollspace with some rambling.
One of the things I love about these crazy people threads is that they always prompt me to revisit some old friends in my bookshelf. Especially's nonsense about the Romans got me re-reading Cicero. So let's see what history's pre-eminent Roman jurist has to say about law.
Although it's much more relevant to civil code jurisdictions, some bits of Roman law can be found in the common law. This alone should make FOTLers sympathetic to the Romans, but of course FOTLer common law is some bizarre invention of their own, and actual common law is dismissed. But FOTLers could find an authoritative voice in Cicero's treatises (if they could read, of course).
Cicero, master rhetorician that he was, argued strongly for natural law. Check this out from Book II of his
Laws:
Cicero said:
What of the many deadly, the many pestilential statutes which nations put in force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly. For if ignorant and unskillful men have prescribed deadly poisons instead of healing drugs, these cannot possibly be called physician's' prescriptions; neither in a nation can a statute of any sort be called a law, even though the nation, in spite of its being a ruinous regulation, has accepted it. Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity with Nature's standard are framed those human laws which inflict punishment on the wicked but defend and protect the good.
And further:
But the Law whose nature I have explained can neither be repealed nor abrogated
Sounds like music to FOTL ears, eh? So what is Cicero doing here, exactly?
The first clue is the political context in which he is writing. This was during the aftermath of Ceasar's assassination and the clash between Republicans (Cicero) and Imperialists (Anthony) for the future of Rome. Cicero had also fairly recently returned from an extended exile brought about by revenge for his actions as consul, and a second flight from Rome during the civil war.
In other words, Cicero's
Laws is his vision of Rome restored to its republican glory, with Cicero as lawgiver and father of the restored constitution. It is a work of political advocacy. He is trying to convince, to persuade.
He is quite explicit about this in the book. Quintus asks him if the laws he proposes will be the kind that will never be repealed. Cicero says "certainly, if only they are accepted by both of you [Quintus and Atticus]". He goes on to explain that, like Plato, he must highlight the persuasive power of his laws by making a preliminary comment - a
proem - before setting them out.
So what is he trying to convince Quintus and Atticus (and Rome) of? What is Cicero's
proem, of which his speeches on natural law are a large part, a preliminary comment to? Is he arguing that Rome should be governed by natural law? No. Of course not. He's arguing that Rome should be governed by Cicero's laws, because
his laws are the true laws, in harmony with the justice that is hard-wired into the ethical, orderly, and eternal cosmos.
The bulk of the book is Cicero's list of laws for Rome. The
proem to those laws consists of his speeches about natural law.*
Natural law is a rhetorical device used by Cicero to distinguish his preferred set of political outcomes from those of the Ceasarian faction, and to confer political power to Cicero himself.
QED.
*ETA: I should mention that the substantial
proem to Cicero's
Laws is a separate prior work,
Republic. This is a deliberate imitation of Plato, who also wrote
Republic followed by
Laws.
Seems rather unfair...
