(Cross-posted at First Things)
It is, usually, far too awkward to import great figures of antiquity into current political discussions. That said, let’s give it a shot. Thinking through the definitions of conservatism, it seemed to me plausible that a conservative could perhaps make a claim to Cicero. This would assume an “imaginative,” not a historical, disposition: a divine intent in history, God-gifted immutable laws of morality, to which man has a duty to conform; order as a first requirement of good governance, achieved best by a restraint and respect for custom and tradition; variety as more desirable than systematic uniformity and liberty more desirable than equality; the honor and duty of a good life in a good community as taking precedence over individual desire; an embrace of a skepticism toward reason and abstract principle. Why Cicero? Following the Stoics, he taught that virtue and vice are distinguishable through a natural law, that there is an eternality to nature and a moral constitution to the universe, and that a “mixed government” might be advisable. Following the Pro Murena, let’s take a look.
Cicero’s reverential view of the old Roman constitution was as an enunciator of the jus naturale, the law of the universe of which the laws of man can only imperfectly manifest. The “higher” happiness is moral happiness and the causes of suffering are moral evils. I think it is possible to classify him as an “anti-rationalist” asserting that natural right is human custom conforming to divine intent. Cicero the philologist might not have objected to the description “conservative,” perhaps, as the English word is derived from the Latin “conservator,” signifying one who preserves from injury, violence, and infraction. As a figure who died for the “old Roman constitution,” those defending constitutional order have looked toward Cicero as their exemplar – to be held in esteem for devotion to the natural, moral law. Cicero might legitimately be cited in a “conservative” context because he lived in a moment when everything was “going to hell” and he was trying to preserve traditions under siege at the crashing of his own civilization. Thus he was part of the broad, humanistic, and stoic (and, later, Christian) tradition of the West – one that valued basic natural rights and was incessantly called into question by variations of utilitarian and utopian thinking. (I recognize there is much to criticize here, but this is an imaginative rendering!)
Cicero delivered the pro Murena against Cato in 63 B.C.E., in response to an extraordinary set of circumstances. This work in particular is an articulation of a philosophical approach to practice. His rhetorical challenge was sensitive and difficult in execution: defend a guilty party being prosecuted by friends and allies. Michael Leff, in a well known rhetorical analysis, writes: “He needed to make a sufficiently plausible legal defense for the jurors to vote as their prudential interests inclined them to vote. In order to succeed in this effort, he had to highlight the political implications of the case without violating the decorum of legal argument, and he had to weaken the authority of the two leading prosecutors, while, for political and personal reasons, he could not offend them deeply or permanently.” For Leff, readers “can attest to the rhetorical power of this blend,” of mixing “playful attacks against the professional and philosophical pursuits (but not the persons)” of the prosecutors, including the powerful Cato, “deadly serious emotional appeals,” and “deft maneuvering around the specific legal issues.” Yet Cicero’s appeal need not be read as “pure, unalloyed examples of rhetorical manipulation.” The content and organizing principles of the speech are not ideologist but rather, in Leff’s conclusion, “a kind of judgment specifically connected with prudence, decorum, and action where rhetorical skills are seen not just as instruments of persuasion but as equipment for living.” And so a plausible case might be made, despite the absence in ancient Rome of direct resemblances of modern Western constitutional liberty, for a “Ciceronian” support of the idea, and of the lived sentiment, of values to be faithfully commemorated. These would include tradition, guidance by accumulated wisdom, constitutionalism, and a civic republican vision of the orator as an ethical representative of the formation and endurance of a beneficial community.
This community has as its core a mystery to the human experience, and a sense that story and imagery can persuade at least as well as logical, more strictly factual arguments. Tradition and historical appeals, in other words, could serve as a sturdy foundation in a confusing world. In defending counsel-elect Murena against electoral malpuractice, Cicero’s task to neutralize the authority of Cato and Sulpicius without earning their antipathy was dependent not upon facts but upon character. This source of argumentative material valued the character of the litigants more highly than the facts in establishing one’s case. Further, his oratory continuously appeals to traditional Roman political and social contexts. Connecting such rhetorical practice with contemporary issues in the study of rhetoric and public policy is a de-emphasis of “facts” and an emphasis of custom. The emphasis of ethos and custom positions the orator (even if indirectly given the absence of such a claim as a part of the speech) as an example to be emulated, as a living personification of a high value. From the first of the speech, Cicero seeks to establish his own claim to be the one who upholds and practices what is morally and properly Roman. “Speaking a few words on my own behalf,” Cicero states:
“Today I pray again to those same immortal gods that Murena’s acquittal may preserve him for his consulship, that your opinion given in your verdict may tally with the wishes of the Roman people expressed in their votes, and that this agreement may bring peace, calm, and tranquility and harmony to yourselves and to the people of Rome. Believing that that customary election prayer, hallowed by the auspices taken by a counsel, has the force and religious weight that the majesty of the Republic demands, I prayed too that the election over which I presided should bring to the successful candidates all good fortune and prosperity. Accordingly, gentlemen, since the immortal gods have either transferred to you their whole power or at least have allowed you to share it, I now commend to your protection the counsel whom I previously entrusted to the immortal gods. He will thus be defended by the voice of the man who declared him consul and preserve along with the office conferred upon him by the Roman people the safety of yourselves and of the whole citizen body.”
The appeal to authority of Cicero’s defense, his own and that of the Republic, is a call for a precarious community of political and social process to remain united by commonly held principles of justice. The appreciation of these principles is necessary to maintain order for the Roman commonwealth. Recognizing the prestige of Cato, “the root and core of the whole prosecution,” his speech attacked a flaw that might assist prosecutorial abuse, a commitment to an austere version of Stoic philosophy that could manifest itself as inflexible, rigid adherence to principle that renders one unable to exercise prudent judgment and adapt to changing circumstances. The systematic contrast between his agility in handling circumstances and the more inflexible positions of his opponents suggests that his rhetorical sensibility is not just a means to win cases but a kind of political virtue as well. Cicero states “wise and far-sighted jurors” have always resisted conduct similar to Cato’s condemnations:
“I do not like a prosecutor to come into court with overweening power, an excessive force, overwhelming influence or too much popularity. Let all these assets be used to deliver the innocent, protect the weak and help those in trouble; for the trail and destruction of fellow-citizens, let them be rejected. Yet it will perhaps be said that Cato would not have agreed to prosecute had he not first reached his decision upon the case. It will be creating an unjust precedent, gentlemen, and a wretched state of affairs for men on trial if the prosecutor’s judgment is to count against the defendant as presumption of guilt.”
Cicero’s implicit warning was to watch what could become of the Republic. In thinking through Cicero as an inspiration for conservatism, what it means for an orator to serve ethically begins with the setting of an example. Cato’s prosecution was something like a “systematic philosophy” and a rigid, purified ethic to the demands of “reason.” By contrast, Cicero retorts that the Roman people inhabit a different, more comfortable ethical world where duties are understood in relation to a realistic assessment of occasions and situations. Such is a political ethic conveyed through tradition and connected to a living culture. Thus traditions are living and a means for change is a means for conservation. The means for change, however, are “Ciceronian” in the resistance of turning idealism to formula and ideology and in the long-lived embodiment of sentiment. Causes of public decay were directly related to a decline of moral virtue. Cicero was not principally concerned in his rhetorical writings with the ethical formation of the private individual. He was concerned with a civic ideal whose dynamic was reflective of the republican constitution.
To extract from Cicero judgments applicable to the arguments of American conservatism and to the concerns of modern societies is to employ the imagination. But it might also be a plausible and profitable enterprise. (Books I and II of the Laws and Book III of Of the Commonwealth would also likely have a lot of material on these points.)