Law and Justice – Roman Constitution – 10.1 The Roman Constitution
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Law and Justice – Roman Constitution – 10.1 The Roman Constitution

September 9, 2019


>>>>The idea of republicanism was the first
great contribution of the Romans to the history of law and justice. Let’s turn now to the
Roman Constitution, the way the Romans organized power in the period of the Republic. This
is the second great contribution of the Romans to the history of politics. The Roman Constitution
during the Republic has been one of the most influential political experiments in all of
human history. And to understand the Roman Constitution in this period, there’s no better
guide for us than a Greek observer named Polybius. Polybius was brought to Rome in the aftermath
of the Roman conquest of Greece. We turn now to the 2nd century BC. And as we’ll see in
future lectures, this is the period when the Roman Republic expands and becomes an empire,
when it comes to dominate the Mediterranean world as no power before it had. And Polybius
is a first-hand observer, indeed, a witness to the rise of Roman dominance. And Polybius
poses in his great work, “The Histories,” the question: Why did the Romans rise to dominance?
What was it that made the Romans the dominant power of the Mediterranean? And his answer
was the Roman Constitution, the Republican Constitution itself. Polybius would ascribe
the greatness of Rome, the success of Rome, as an imperial power to her constitutional
form. Indeed there’s no other obvious explanation for the success of the Romans. There’s no
obvious reason why this city inland on the Tiber River would come to dominate the Mediterranean.
The Italians have not dominated the Mediterranean before or since, and Polybius says it has
to do with the political structure and the political culture of the Roman Republic itself.
Polybius is a Greek. He’s brought to Rome, in fact, in the aftermath of the Roman conquest
of Greece. The Romans conquered the Greeks in the first half of the 2nd century BC and
in particular after a decisive victory in the year 168 at the Battle of Pydna. A number
of Greek aristocrats are brought as hostages, in effect as political prisoners, to the city
of Rome, where they live under house arrest to ensure that the Greeks won’t revolt against
the Roman governors in this territory. And Polybius is brought to the city of Rome itself
and is placed within the house of one of the great Roman noble families, a great military
family. And so Polybius is brought to Rome under rather peculiar conditions, rather comfortable
conditions, and during his time in Rome he would come to greatly admire Roman culture
and the Roman families that he would know in particular. Polybius was clearly educated
in the Greek philosophical tradition. He had read Plato; he had read Aristotle and as you
read Polybius’s account of the Roman Constitution, understand that you’re reading it through
the eyes of a Greek, that you’re seeing the Roman Constitution in Greek terms. Polybius
describes the Roman Constitution in terms that would’ve been familiar to Aristotle,
and in particular Polybius believes that the Roman Constitution was a mixed constitution.
He believes that there are three different forms of constitutions, just like Aristotle
had articulated in his politics. There are rule by the one, rule by the many, and rule
by the few. And there are correct and deviant forms of each of these, and Polybius clearly
believes that there’s a certain cycle that political power begins as monarchy but the
monarchy corrupts into tyranny, and tyranny is overthrown by an elite group who establishes
power and aristocracy. This aristocracy will at first rule well but will eventually corrupt
and turn into an oligarchy, a narrow elite that rules for its own interest and oppresses
the poor. This oligarchy will then be overthrown in a democratic revolution that will set up
the rule by the many and for a time this will be just, but inevitably the many will become
a mob, and democracy will descend into the mob rule until it then is overthrown by a
virtuous ruler who will again establish monarchy beginning the cycle over again. Polybius believes
that the Romans have somehow escaped or at least slowed this cycle of decadence by establishing
a mixed, and Polybius sees the genius of the Roman Republican Constitution in its mixed
character, and this is a tremendously influential idea. The idea that a constitution can have
a mixed form, that it can embody monarchical, aristocratic, and popular elements, and indeed
this is a fair description of the Roman Republican Constitution. When the Romans overthrow their
kings in 509 BC, they establish a republic under the first consuls Brutus and his colleague
Publicola. The consuls would remain the primary magistrate throughout the rest of Roman history.
And the Roman Constitution is so organized that there are a series of executives, elected
officers who hold executive power. Most importantly, the consuls themselves, always remaining two
in number, always alternating power, holding the highest kind of power in the Roman system,
a power that’s called “imperium,” where we get our word empire. It’s an absolute power,
the power to command, the power to punish. It’s the absolute kind of power that’s wielded
by a military commander or those who are in his command. Imperium is symbolized by the
possession of the fasces, a bundle of rods that are carried by an attendant called a
“lictor,” and this is where our word fascism comes from, this kind of absolute raw power.
The consoles are in fact military commanders, they’re commanders in chief, much like our
own president has the primary duty as commander-in-chief. The Roman chief executives, the consuls, are
above all military generals and it’s important to think of the Roman magistrates in those
terms, as military officers elected two per year. The Roman Constitution has a number
of other executive offices. Beneath the consuls are a number of officers called “praetors.”
They have, as well, a kind of imperium, a strong kind of executive authority. They also
will come to gain a kind of legal authority. The Roman magistrates continue: quaestors,
aediles, a whole range of offices that are elected, in many cases annually, to hold the
highest kinds of executive power in the Roman system. And for the analysis of Polybius,
this is a kind of monarchical power, but it’s the genius of the Roman system that this power
is administered by the people themselves through the election of these officers. The Roman
Constitution also includes, Polybius says, an aristocratic element, that is an element
of rule by the best. And remember that for Aristotle an aristocracy is rule by those
who are most virtuous, those who are most worthy. It’s not necessarily a landed or an
inherited aristocracy. It is a rule by those who are truly the best, and for the Romans
the best are the Senators, the aristocratic organ of the Roman Constitution is the Senate.
The Senate, the Romans believed, was even older than the Republic itself. A senatus
is literally a body of gray-haired old men, group of experienced men. For to be in the
Roman Senate, you had to have held high office in the Roman state. You had to have military
experience. To be Roman senator also meant that you had to be a member of the Roman elite
orders. You had to be a patrician to be in the Roman Senate in the Republic. The Senate
is a body of experienced men who’ve held military command and who come from the elite and above
all the wealthy ranks of Roman society. In some sense the Senate is the dominant institution
of the Roman Republic. The Senate is where the power lies during the Republican period,
and although the Republican Constitution is a mixed constitution, the Senate is undoubtedly
its dominant organ. The Senate actually has what we would consider to be relatively limited
legal powers. The Senate can’t pass laws. The Senate can’t command armies in battle.
The Senate plays a largely advisory role to the Roman magistrates. The Senate has relatively
limited, seemingly limited legal powers. Nevertheless, it had authority. It had “auctoritas,” in
Latin. It had the respect of the magistrates, and it guided the ship of state throughout
the Roman Republic, and the Senate we should consider to be the heart of the Roman Republican
Constitution. And the Roman Republican Constitution has a popular element. It has a monarchical,
an aristocratic, and a popular element. And the popular element is institutionalized in
the form of a number of assemblies, the most important of which is the Comitia centuriata,
the Roman committee of the centuries. It is a military assembly and we can think of the
Comitia centuriata as the Roman people in their form as an Army electing their magistrates.
The assemblies broadly have two kinds of powers. They have legislative powers, they can make
what is a lex, a law, and they elect the magistrates. The people of Rome elect the magistrates of
Rome. At the same time, there’re limits to Roman democracy. Even the assemblies are not
organized on the principle of one man, one vote. They are organized in such a way that
people who have greater property have disproportionate weight in the voting schema. In fact there
are also organized so that people who are older, people of a greater age, have a disproportionate
weight in the voting system. So the Roman democratic element is not pure democracy.
It’s certainly not participatory democracy like classical Athens, and it’s certainly
not what we would consider truly democratic. It is limited only to males, only to citizens,
and it’s heavily weighted towards those who are older and those who hold property. Nevertheless
there’s truly a popular element in Roman politics that runs across the Republican period and
so Polybius is right to describe the Republican Constitution as a mixed constitution that
achieves a kind of balance between the monarchical, the aristocratic, and the popular elements.
And Polybius sees this as the genius of the Roman Constitution and sees it as the secret
to the success of the Roman people.

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