Andrew Lintott, Constitution of Roman Republic
How could Romans find out what was proper constitutional practice in any political situation? What were sources of law, what was the authority which sanctioned a constitutional practice? [10 mins.]
Michael curates today’s Social Science Files selection:
In his book The Constitution of the Roman Republic, published in 1999, Andrew Lintott wrote:
Chapter 1
Introduction
Nowadays, when historians study the republican constitution, it is not so much because it is the key to understanding Roman success abroad, but because they wish to evaluate Roman politics and society in this period. The fact that the constitution was, as Polybius saw, a natural growth, rather than the creation of a legislator at a specific point in time, arguably justifies us in treating it as a true reflection of forces in Roman society and of Roman ideology concerning the conduct of politics… Politics in the Republic were a game played according to complex rules. Without knowledge of these it is hard to grasp the behaviour of the contestants. Moreover, knowledge of constitutional norms may help us to choose between accounts given by ancient authorities … a proper understanding of constitutional norms is a safeguard against anachronistic political judgements based on subjective principles. … There is a further justification … Polybius' and Cicero's view of the Republic as a mixed constitution, in which, at its acme, the balance of elements produced harmony and stability, has had an important effect on Renaissance and post-Renaissance political theory. It may be, however, that recent generations have been more impressed by the myth than the reality. Without an attempt to grasp the reality, this cannot be assessed.
The fact that the Republic was a natural growth creates also the fundamental problem in analysing it. It was not a written constitution, nor was it entirely unwritten. Two questions may make the problem clearer. First, how could Romans during the Republic find out what was proper constitutional practice in any particular political situation? Secondly, what were the sources of law, i.e. what was the authority which sanctioned a given constitutional practice?
Sources of Legal Authority
By the second century BC the Romans were regularly publishing copies of statutes on bronze in public places, probably “in a position where it can be correctly read from ground level”, as the texts of the statutes themselves say, when referring to the publication of essential notices. Copies were also kept on tablets or papyrus in the treasury or its associated record-office. The purpose of publication has been much discussed recently. To what extent was it merely symbolic, to what extent genuinely intended for information? Clearly, in a certain sense it was the assertion of the law's existence. At the same time it is unlikely that the majority of the Roman people had the capacity to read, still less to understand legal texts. Nevertheless, men with skill in legal language could have understood them and told the others, and those in public office were obliged to read either the public copies on bronze or those in the treasury. …
… The authority behind a law was that of the populus Romanus or plebs Romana voting in an assembly: … “the consul lawfully asked the people, and the people lawfully resolved”. Polybius reports that the people had the right to make or rescind any law and, he implies, no other body. The authority behind a senatus consultum under the Republic was different and less absolute. The decree stated the senate's view on a question put to it, usually recommending a certain course of action to the magistrate who consulted it and perhaps to other magistrates as well. In executing the decree the magistrate enjoyed the legal and moral standing consequent on senatorial approval. Although it was dangerous to consider a decree of the senate to be a justification for overriding a law, if there was no conflict with a law, a magistrate, who executed a decree of the senate, added to it his authority as one elected by the people, and this had obvious implications for those subject to him.
A source of public law which was less defined, but essential, was tradition and precedent. Many of the fundamental rules of the constitution were not based on written statutes, for example, the annual election of two consuls, the convening of different types of assembly for different purposes, the very existence and functions of the senate. However, although these elements of the constitution were not based on specific legislation, they may well have been referred to in written laws or senatus consulta as existing institutions. They would also have been mentioned in the books of the religious colleges, especially those of the augurs, which were concerned with rules for assemblies. …
… Hence we have evidence in the late Republic for written exegesis and consolidation of unwritten constitutional tradition. In other words, there were rules which were written down but did not derive their authority from the writing in which they were recorded.
Constitutional tradition (instituta, mos, consuetudo) had under the Republic an enormous spectrum ranging from basic unwritten laws—ius, even if not scriptum—to what one may term mere mos, the way things happened to be done at the time. We may be reminded of the English Common Law, especially in so far as this was held to be the charter for a particular relationship between the crown, parliament, and the people. However, this parallel cannot be pressed, for one reason in particular, that, by contrast with Common Law for which a clearly defined antiquity was a necessary qualification, Roman mos was regarded as something in continuous development. …
… Jochen Bleicken has tried to create a theoretical model for the development of mos, which is usefully provocative, even if it cannot do justice to all the complexities. For him the early Republic was a period, in which lex—written law, such as the Twelve Tables—and mos were not in conflict, but were complementary aspects of an aristocratic regime based on consensus—a golden age, one might say. Mos and consuetudo described simply practice—whatever was done for whatever reason with whatever authority. We may object immediately that it is doubtful if such a golden age ever existed. Bleicken's picture of an ideal consensus, racial unity, and internal peace does not correspond well with the Romans' own conception of the early Republic. However, for the sake of argument at least, we may concede that there was a time when there was no essential conflict between written statute (lex) and unwritten tradition.
Bleicken's second stage is one in which drastic changes in law (ius) were required in order to cope with the ever more complex demands on the regime. New norms tended to be introduced by statute (lex), but, when this did not occur, recent mos came to supplement, even supplant, earlier mos. Bleicken's example is the process by which the capital trials for treason (perduellio) laid down by the Twelve Tables were supplemented by tribunician prosecutions for a fine (multa).
I myself am not sure that prosecutions by a magistrate for a fine were not envisaged in the Twelve Tables. However, what does seem to have been an important development in this field, not dependent on statute, is the regular appearance of the tribune as the prosecutor in both capital and non capital cases, which must have been the result of the evolution of the tribune into an element of the government from the fourth century onwards.
By this time mos appears as something which is separate from and hence potentially may be in conflict with lex. Moreover, in the revolutionary period which followed, when aristocratic consensus was fragile, it became the norm to deal with new needs by legislation (when this was resisted, we find legislators even requiring oaths of obedience from magistrates and senators). The consequence was that mos by contrast came to be regarded as preponderantly ancient tradition, idealized by conservatives as a counterpoise to new developments which, in their view, were rooted in corrupt statutes. This point of view lies at the heart of Tacitus' sketch of the growth of legislation in [the] Annals, where the Twelve Tables are the end of equitable law, and legislation subsequent to them is inspired by ambition and jealousy with a view to self-promotion or injury to rivals. Custom tended to become a conservative catchword in so far as it was used to describe actions in opposition to the populares, even those taken after new expedients like the senatus consultum ultimum.
It should be clear from this that the constitution of the Republic was not something fixed and clear-cut, but evolved according to the Romans' needs by more means than one. It was also inevitably controversial: there were frequently at least two positions which could be taken on major issues. What must also be evident is the most likely way that young Romans from the élite learnt about the constitution. Occasionally, they might have referred to the text of a law or senatus consultum or part of a religious commentary, but for the most part they would have learnt from the daily practice of political life and from what was said by orators on controversial issues.
A further source of education for them from the early second century BC onwards was the annals of Rome, which, even in the works of the early Roman historians (c.200 BC), contained stories of political crises, some of which seem shaped, if not invented, to explain difficult constitutional problems.
This to a great extent foreshadows how scholars since the Renaissance have studied the Republic. We read the texts of laws and decrees of the senate, we study the fragments of learned commentaries to be found in antiquarian sources, but frequently our best guide to constitutional practice is to read in ancient narratives what actually happened over a period, and, where there was conflict, to discover, as far as we can, in what terms the issues were formulated at the time.
It may be helpful to differentiate between possible approaches to the constitution of the Republic. One is an analysis of how things worked in the last two centuries of the Republic, which can be achieved by a positivistic study of political history.
A second is to trace developments from their origins in the early Republic or even before. This will inevitably have a large component of myth, as it does in our basic sources, Livy and Dionysius of Halicarnassus, both on account of the lack of sound information available to the earliest Roman annalists and because those who wrote history tended to have a contemporary political agenda.
A third approach is to theorize about the nature of the constitution. Whatever the merits of his actual achievement, Polybius deserves the credit for being the first to have actually attempted to put Roman political behaviour in a conceptual framework. Without such a framework we are likely to lose our way in a mass of data; with the aid of one we may make fruitful comparisons with other constitutions. It is significant that the best known and fundamental modern attempt to give an account of the constitution, Theodor Mommsen's Romisches Staatsrecht, is highly theoretical, in spite of the assembly of source-material in the footnotes. …
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The Source has been:
Andrew Lintott, The Constitution of the Roman Republic, Oxford University Press 1999
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