Eric A. Posner, The Constitution of the Roman Republic

Claims about ruinations of Republics (Rome/USA) by fetishisation of separation of powers, with observations on population growth with declining patronage and elite politics as causal factors.

Dec 06, 2022

Eric A. Posner wrote:

Chapter 3

The Constitution of the Roman Republic

The constitution of the Roman Republic (509 to 27 ) was well known to the founders of the United States. They admired Roman civilization, and accepted the theory of checks and balances, which was reﬂected in the Roman constitution, but they disapproved of the way that the Roman constitution embodied that theory, believing that the Romans had put excessive constraints on the executive and spread power too thinly among the various ofﬁces and bodies. Treating the Roman constitution as a negative model, the founders designed a constitutional system that was signiﬁcantly simpler, creating, for example, a single executive branch where in Rome executive power was shared among a number of magistrates. But were the founders correct in rejecting the Roman model? The Romans, after all, ﬂourished under constitutional rule for almost ﬁve hundred years, in conditions far less auspicious to the rule of law than existed during the Enlightenment. In this essay, I use the modern political economy framework developed in economics and political science to reconstruct and evaluate the possible reasons the founders might have had for disapproving of the Roman constitution, and to ask whether that constitution was as dysfunctional as they assumed.

The modern scholarship on the Roman constitution is mainly descriptive and historical, with some speculation about how particular norms may have contributed to the prosperity and stability of the Republic, and others may have contributed to its collapse. Historians generally observe that Roman constitutional norms mediated between an upper class and the masses, and distributed executive power among multiple ofﬁces in order to forestall a return to the monarchical system that existed in the sixth century . No one has tried to analyze the Roman constitution within a modern political economy framework, however, and the purpose of this chapter is to develop such an analysis. …

The most notable feature of the Roman system from a modern perspective was the elaborate set of precautions against the accumulation of executive power in a single person. The goal was to prevent the recurrence of monarchy, but the risk of checks and balances is that they paralyze governance.

I argue that gridlock did not pose an insurmountable obstacle to effective governance during the Republic’s ﬁrst four centuries because the population was relatively small and homogenous, so political agents could bargain around the institutional checks and balances when necessary for the sake of public security.

But as conquered foreign populations streamed into the city, the population became large and heterogeneous. Most of the fabulous wealth resulting from conquest enriched the elites, not ordinary people, resulting in divergence of interests between the upper and lower classes. Governance became subject to gridlock, setting the stage for extra-constitutional behavior in the last century and eventually dictatorship. …

… [Classicists] have been cautious about speculating about the functions of the Roman constitution because of the paucity of sources. Nonetheless, they have tried to make inferences which reﬂect informal rational choice reasoning but without, as far as I can tell, any knowledge of the vast modern literature on political economy. One purpose of this chapter is to bring to bear recent ideas from one discipline on the discussions of specialists in another.

[The] Roman constitution has inﬂuenced modern political institutions. American revolutionaries (and, subsequently, French revolutionaries) were obsessed with ancient Rome. … A more ﬁne-grained understanding of the Roman constitution will contribute to our understanding of the founders’ constitutional thinking and to constitutional theory in general.

… The Roman constitution provides a fresh example, which is notable because of its stark differences from modern constitutional systems.

Before I turn to the analysis, I need to offer a number of cautions. The secondary literature contains many internal disagreements about the meaning of sources, which are themselves extremely sparse and not always to be trusted. Only the ﬁnal years of the Republic are well- documented, thanks in large part to Cicero’s private letters to his friends, and the survival of speeches and other contemporary materials. For earlier periods, historians rely mainly on Polybius, who was a foreigner with a foreign perspective and a particular ideological and philosophical agenda; Livy, who relied on earlier historical sources that are now lost and, writing in the Augustan age, needed to avoid making claims that would have displeased Augustus; and mostly ambiguous archeological evidence. Augustus, Rome’s ﬁrst emperor, and late republicans like Cicero idealized the old days and emphasized the decadence of the late republican period—Cicero to justify a return to an era supposedly dominated by the elites, Augustus to justify his own broad political program. …

… [That] Rome did have a constitution, and that Romans themselves believed themselves to have a constitution, is not open to serious doubt. That is, at least, until the last century of its existence. In addition, it is impossible to identify a single Roman constitution over the ﬁve-hundred-year period of the Roman Republic. There was signiﬁcant change and disruption throughout this period. During its last century, the Republic was in a state of nearly continuous crisis and sometimes civil war. The secondary sources that describe the Roman constitution focus on the third and second centuries , when the political order was relatively stable, while also identifying norms that persisted over time and some historical variation during other periods, especially the ﬁnal ﬁfty years. I follow them but deemphasize the historical variation, which is complex and elusive. …

… The U.S. constitution embodies a system of separation of powers, with a presidency that executes the laws, a Congress that legislates, and a judiciary that interprets the laws. Federalist structures guarantee some autonomy for states. The source of authority is the people, who can amend the constitution by following prescribed procedures. The Roman system is quite different. Most scholarly discussions divide it into three main elements: the senate, the magistrates, and the assemblies. The senate is politically important as the locus for political discussion but has mainly advisory powers in a formal sense. The magistrates have the major executive and administrative powers, but also serve as judges, and initiate legislation by summoning assemblies of the people and submitting bills to them for their approval. The people, acting in assemblies, pass bills, elect magistrates, and serve certain judicial functions. Roman provinces had no autonomy but were governed by delegates of the government. …

… Day-to-day governance occurred through the magistrates. …

Madison, following Montesquieu, warned that breach of separation of powers was a recipe for tyranny (Federalist No. 10). But the Roman magistrates were subject to signiﬁcant checks. Their terms were short; they were elected by the people (in most cases); they had to obtain the approval of the people for certain actions such as legislation; they could be tried and punished for abuse of their ofﬁce after their term expired; and they were constantly subject to public scrutiny because they had to act publicly in most cases. They could act independently but some amount of cooperation was necessary so that they did not undermine each other’s actions; in addition, magistrates could veto actions of other magistrates of equal or lower rank as long as the vetoing magistrate was present. All of the magistracies were open to plebeians as well as patricians by the mid-Republic. …

POLITICAL ECONOMY PERSPECTIVE

… [Some] Political economy models typically simplify by treating the “government” as a single agent [government] and the “people” as a single principal [constituency], but of course these are abstractions, and these assumptions are frequently relaxed. A government consists of multiple ofﬁces and institutions, and these can be treated as separate agents; the principal might sometimes be the people or a subset of the people or an institution like a political party or a branch of government.

[Using this type of political economy language…] In the case of Rome, the initial impulse is to treat the Roman “government” as the agent, and the Roman “people” as the principal. The people control the government through the constitution which is a set of self-enforcing norms that dictate what the government can do. …

… The question of who the principal [constituency] is in the Roman Republic turns out to be more difﬁcult than it ﬁrst appears. The vast majority of people living in Rome and its territories were women (citizen women had no voting rights), conquered people who had not been given citizenship, and also slaves. It might be more accurate to say that the government was the agent of Roman citizens. But even this claim might not be sustainable. Most of the people were poorly educated and impoverished; it might be doubted whether they could wield much control over the sophisticated and vastly wealthy elites, many of whom exerted power through patronage and private guards and gangs. Still, the masses clearly inﬂuenced political outcomes. As so often happens with the upper classes, members of the senatorial elite were in many cases reluctant to engage in commercial activity, and in the late Republic, wealthy equestrians, especially those who held public contracts to collect taxes in the provinces, gained a great deal of political inﬂuence. …

… If, as is often claimed, Rome was an oligarchy, the proper assumption is that the government served as an agent for the upper class or some segment of it—the senatorial elite and wealthy equites, the optimates, or perhaps a few great families. That is the impression one gets, for example, from Cicero, who sometimes writes as though ordinary people are a hostile force that must be propitiated by the government for the sake of the nobility; at other times, however, he treats the people as the principal albeit one that does not, and should not, have any control over the agent, which is wiser than they are (Cicero, Of the Laws). On the oligarchic view, the principal [constituency] consists of the relevant oligarchy; the government maximizes the utility of its members but also must pay other members of society whatever the minimum is necessary to prevent them from engaging in civil war or causing a domestic disturbance.

The Romans themselves appeared to have yet another view of the principal: the senate and populace of Rome—the Latin acronym is SPQR. This name implies two principals—the senate and the people. These two principals are separate yet share sovereignty; compare “we the people” in the United States and the Athenian demos, which imply a single principal. One suspects that “senate” stands in for the upper class—the patrician and wealthy plebeian families that dominated Rome. Imagine, then, that two principals form a joint venture and expect the governmental agents to serve their joint interests. This again suggests a state with a form of government that lies somewhere between oligarchy and democracy.

Similar complications arise when we turn our attention to the agent [government]. It is at best a rough approximation to say that Rome had a “government”. It lacked the enormous, permanent, hierarchical bureaucracy that is the essential character of government in modern states. … As we have seen, the government comprised ofﬁcials who were not required to cooperate with each other and were not subject to the control of a single person or institution. Magistrates could not rely on a police force to keep order, and often resorted to private guards, private gangs, and even private armies. Still, it seems fair to say that over time the Roman government acted in a largely consistent and coherent way, thanks in large part to the senate and perhaps the small size of the elite.

The Roman government, like governments at all times and places, did two things: it supplied public goods and it redistributed wealth. The public goods included security against external enemies; the rewards of conquest, including loot, tribute, and taxation; suppression of rebellion; public order; the construction and maintenance of roads, sewer systems, viaducts, and other infrastructure; adjudication of private disputes; and enforcement of property and contract rights. …

ANALYSIS

The Literature on Roman Constitutionalism

In trying to explain the development of the Roman constitution, historians emphasize two themes: Romans’ fear of executive power, and the conﬂict between the elites and the masses. The fear of executive power explains the multitude of checks and balances in the Roman constitution. The conﬂict between the elites and the masses explains why certain institutions were oriented toward one group or the other.

The Republic emerged from a rebellion against a monarchical system, and Romans sought to prevent a relapse. It was for this reason that the Roman constitution established such a weak executive. Two consuls shared power with each other, and with lesser magistrates who had independent sources of power. The consuls could not make laws without popular approval; in the city of Rome they could not punish people without a trial before the people. They could serve only one-year terms, which prevented them from consolidating power and establishing permanent dictatorships. They were subject to oversight by the senate, of which the consuls themselves were members, and to interference from religious ﬁgures. These urgent constitutional efforts to check executive power lend poignancy to the collapse of republican institutions and their replacement with an absolute monarchy in the ﬁrst century .

The other theme is the conﬂict between the elites and the masses— or to be more precise, the conﬂict between conservative members of the senate and their wealthy supporters (often equites) who sought to maintain the status quo and the ordinary plebeians and their occa- sional popular leaders (sometimes patricians) who sought to redistribute wealth and power to the people. The ﬁrst group came to be known as the optimates, the second as the populares. In the early centuries of the Republic, most ofﬁces were open only to patricians, but over the centuries, the patricians yielded more and more rights to the plebeians, and most ofﬁces, including the consulship, were open to plebeians. As mentioned previously, by the third century , measures passed by the plebeian assembly were binding on the entire citizen body. In the late Republic, the senatorial elite consisted of a patrician and plebeian aristocracy; families with an ancestor who served as consul were considered “noble”.

That class conﬂict was central to Roman politics is the settled wisdom among historians. The ancient sources suggest a long-term trend in favor of the people. However, how much power the senatorial elite actually yielded to the lower classes over time is the subject of considerable dispute. On the one hand, members of the senatorial elite enjoyed wealth and signiﬁcant social and institutional advantages. Patron-client relationships persisted throughout the entire period: if ordinary people depended on the nobles for subsidies, contacts, advice, and other beneﬁts, they might not have been able to exercise much political independence. It took a vast amount of wealth to conduct election campaigns (which frequently involved bribery) and hold ofﬁces. It was not just that magistrates were unpaid; they also were expected to use their own funds for the public good. A small number of noble families dominated the governing class for centuries; families main- tained their political power by entering alliances with each other, often ratiﬁed through the marriage of their children. These families also dominated the religious cults, which had a great deal of inﬂuence over political life. Plebeians wealthy enough to win ofﬁce often had the conservative outlook of the patricians. Cicero frequently gives the impression that the tribuneship and other institutions that favored the plebeians were granted to them in response to popular pressure but did not actually matter. The public was happy with the constitutional forms of political power, which could cause annoyance but not affect political outcomes in a substantial way (Cicero, The Laws 154–8).

On the other hand, the common people enjoyed the signiﬁcant advantage of numbers. And, indeed, the poorest of the plebeians exercised disproportionate inﬂuence through the threat of street violence: only a fraction of Roman citizens actually lived in Rome and those citizens were among the very poorest. The senatorial elite needed the support of the common people for a variety of reasons, including the fact that they supplied the soldiers so important for Rome’s defense and imperial glory. Both plebeian and patrician politicians rose to power by appealing to plebeian interests. Elections were meaningful; assemblies mattered. Aside from the changes in the Roman constitution that progressively favored the plebeians, signiﬁcant substantive laws were enacted that beneﬁted common people—from land reform to the distribution of free food. Patron-client relationships, bribery, and private ﬁnancing of public goods can also be reinterpreted as reﬂections of popular power. Why would elite politicians risk bankruptcy to pay off rank- and-ﬁle voters if this group lacked political power? The fact that ordinary citizens secured substantive laws that beneﬁted them, and that their efforts to secure these laws usually respected constitutional forms, suggests that the Roman political system was not a pure oligarchy. One might call it democratic republic that heavily favored an aristocracy or an oligarchy with signiﬁcant democratic elements.

The two themes—fear of executive power and the conﬂict between the elites and the masses—are closely linked in Roman history. Roman elites feared popular demagogues from their own class— individuals who could amass power by promising to redistribute wealth from the nobles to the common people and hence securing their support in the assemblies. It seems clear that this fear lay behind many of the constitutional norms. If those norms were respected, it would be impossible even for a successful general or charismatic demagogue to establish a personal dictatorship. He could not be consul for more than one year; he would have to share power with others; as a member of the senate, he had just one vote; and so forth. The problem turned out to be that constitutional traditions were not powerful enough to prevent this from happening. People could obtain power through extra-constitutional means—for example, by relying on soldiers and other supporters to threaten violence. This is what eventually happened, starting with Sulla in 82 and culminating with Caesar. But only after more than four hundred years of extraordinary political achievement. …

Selection of Government Ofﬁcials

Government agents such as magistrates may make decisions that are contrary to the public interest because they lack competence or because they have preferences that deviate from those of the principal. The Roman constitution addressed this problem in three ways: qualiﬁcation rules for ofﬁce; elections; and screening by the censors. The major qualiﬁcation rules were the age restrictions and the cursus honorum, which typically required that a person be of a certain age before occupying a magistracy, and that a person have held a lower magistracy before ascending to a higher one—though these rules were in ﬂux and frequently violated in the last century of the Republic. These rules ensured that young, inexperienced people could not hold high ofﬁce, and thus reduced the risk that an incompetent person might be elected. …

… The Roman voting system was a compromise, weighted in favor of the wealthy but permitting the masses to have inﬂuence when the wealthy were divided.

The American constitution has many fewer eligibility requirements— the most notable one is the rule that the president must be a natural born citizen and at least the age of 35. One could imagine a cursus honorum, one requiring, for example, that a person serve as governor (or senator) before becoming president, and member of the House (or mayor or alderman) before becoming governor or senator. Such a rule would reduce the risk that unqualiﬁed people reach high ofﬁce, but it would also limit democratic choice in a way that surely would be considered unacceptable.

The difference can be attributed to the more ﬂuid political environment that existed in ancient times. Then, it was possible for a talented young man from a prominent family to achieve military success early in his career and amass wealth and inﬂuence while still in his twenties (or even teens). Such a person might harbor dictatorial ambitions and possess the means to achieve them, while lacking the temperament and experience for republican politics. By contrast, wealth and military glory are not straightforward paths to the presidency in the United States. Unlike in ancient Rome, no one is wealthy enough to ﬁnance whole armies ... As a result, American politics are dominated by civilian career politicians who obtain prominence through com- promise and consensus-building. Eligibility rules that emphasize age and experience are unnecessary.

Division and Limitation of Powers

Governance can be divided along two dimensions: policy domain (war, public order, games, and so forth) and type of power (legislative, executive, judicial). The U.S. founders divided the government by power—Congress has the legislative power, the president has executive power, and the judiciary has the judicial power—while also assigning some duplicative powers and imposing some restrictions on policy domain. The Roman constitution, by contrast, is divided (roughly) by policy domain. Consuls and praetors had authority over war and public security; quaestors over ﬁnances; censors over the census; aediles over public infrastructure and games; and so forth. Again, there was some overlap. But the Roman constitution did not make a fetish of separation of powers. Most of the magistrates had legislative, executive, and judicial powers: they made policy within broad legal constraints, executed it, and interpreted the law.

The Roman system had a number of advantages. First, the structure of the magistracies limited the amount of mischief that a single ofﬁceholder could do. If an incom- petent or preference-outlier is elected to an ofﬁce, he can produce problems only within his jurisdiction. Having no authority over games, an incompetent praetor cannot put on bad games. If some fraction of elected magistrates is incompetent, then the effect of distributing power over multiple magistrates is to reduce the variance of policy outcomes. By contrast, a single executive ofﬁce produces consistently good out- comes when a competent person holds the ofﬁce and consistently bad outcomes when an incompetent person holds the ofﬁce.

Second, the Roman system established relatively clear lines of authority, in this way easing the burden on the public to monitor and sanction ofﬁceholders. Because the aedile is responsible for games, the public can evaluate an aedile on the basis of the success of the games. As a result, the public learns about the abilities of the aedile, and can reward him with future ofﬁces, or sanction him by denying him future ofﬁces. A consul responsible for defense of the city will be judged on the basis of whether the defense fails or succeeds. By contrast, in the American system lines of responsibility are not always so clear. When crime increases, it is hard to know whether to blame the executive for inadequate enforcement, the legislature for insufﬁciently tough laws, or the judiciary for excessive protection of procedural rights. Thus, in the Roman system, it was easier for the people to evaluate, and hence to reward and punish, ofﬁceholders on the basis of their public acts. Third, the Roman system nonetheless did provide for checks that ensured that projects went ahead only if they had sufﬁcient political support. If a consul is tempted to enact a law that favors the elites, then a tribune or the other consul can veto it, and indeed a popular assembly can refuse to approve it. As a result, an implicit supermajoritarian rule holds: policies will be implemented only if ofﬁceholders representing a broad array of interests favors it. Supermajoritarian rules can be justiﬁed on the ground that they prevent redistributive politics while permitting government to produce public goods when decision costs are low. It is impossible to know whether supermajoritarian rules served this purpose in Rome or merely entrenched the status quo—a question to which I will return. For now, the interesting comparison is between the Roman and American systems of checking. In the American system, a branch of government cannot check another branch when that branch acts solely within its domain. So, for example, the judiciary does not try to check prosecutorial discretion. In the Roman system, such checking is possible. If the purpose of checks and balances is to ensure that a supermajoritarian element exists in policymaking, then the American system is hard to justify. There is no particular reason to limit checking to cases where the three different types of powers must come into play in order for political outcomes to be achieved.

While Madison and Montesquieu complained that the failure to separate legislative, executive, and judicial power results in “tyranny,” the usual complaint about the Roman system is that the division of powers caused gridlock (Federalist No. 10). Again, let us compare the American and the Roman system. Simplifying greatly, the American president can respond to an emergency by either drawing on existing statutory authority or obtaining a single authorization from Congress, and then taking whatever actions seem necessary, subject only to a judicial check against arbitrary arrests and similar police actions. A Roman consul could respond to an emergency without senate authorization (though senate authorization would be prudent), and could, in principle, establish policy and use coercion in order to achieve it. Yet at all times, he would need to contend with objections from the other consul and the ten tribunes, and eventually he would be required to grant people trials. It seems that, on the whole, the American executive has more freedom of action than the Roman consul did. Rules restricting consuls to one- year terms and limiting the frequency with which an individual could hold consulships and other ofﬁces further weakened the executive in the Republic by preventing talented individuals from accumulating political power.

[It has been written] that American-style separation of powers reproduces at the political level the dual monopoly problem analyzed in the industrial organization literature. Suppose the government produces a public good but charges a “price” in the form of taxes. A single government ofﬁcial would set a monopoly price; but if two government ofﬁcials must agree to the project, then the ﬁrst (akin to a supplier) will charge a monopoly price to the second (akin to a distributor) who will then treat the ﬁrst ofﬁcial’s consent as, in effect, a costly input, and pass the cost along to the taxpayer plus an additional markup reﬂecting the second ofﬁcial’s monopoly power. Because of the principle of collegiality in the Roman constitution, this problem might seem even more signiﬁcant than in the American constitution. A consul who seeks to implement a project must bribe the other consul not to veto it. However, there are two competing factors. First, the consuls were individuals and could bargain very easily with each other—much more easily than the president can bargain with Congress, which consists of two houses, each with a multitude of members. Second, the consuls typically came from the same class, and often were bound by family and clan alliances. From the standpoint of the Brennan/Hamlin model, separation of powers in Rome appears less damaging than it is in the United States. Gridlock and the other pathologies of separation of powers could be avoided through bargaining in a small, homogenous political class.

The Roman constitution also addressed the weakness of executive power in more direct ways. Magistrates such as consuls, proconsuls, and praetors enjoyed broadest powers when outside Rome, while on campaigns or when administering provinces. In these situations, there were relatively fewer concerns that the magistrates would abuse their powers because they had less authority over Romans (aside from soldiers, travelers, and administrators). For that reason, they could be subject to fewer limits.

In addition, magistrates could not be everywhere at once, and a magistrate could not veto the action of another magistrate unless in his presence. The constraints of time and space thus could facilitate governance, albeit only as a result of contingency. Magistrates in the same college also divided up responsibilities temporally and by domain, in this way avoiding direct conﬂict but possibly interfering with continuity of governance.

Further, the senate played an important role in coordinating the magistrates. However, the senate was not an elected body; as a result, senators, who surely reﬂected the interests of the wealthy, had an impact on policy outcomes through their inﬂuence on the assignment of roles to magistrates and their resolution of disputes between them. Finally, the Roman constitution had a safety valve in the ofﬁce of the dictator. The dictator did not have to coordinate with other magistrates; unlike the consul, the dictator did not have to contend with another person simultaneously holding the same ofﬁce. Of course, such unbridled authority could be abused. The further solution to this problem was that dictators could hold ofﬁce for only six months. Abuse was therefore time-limited. And because the dictator was selected by the consuls (after senate authorization) who were broadly responsible for the security of the Republic, the dictator would likely be a person who was experienced and enjoyed a fair amount of trust. However, even these protections may not have been enough. From the second century  through Sulla, the political class avoided reliance on dictators and instead the senate authorized a consul to take extraor- dinary actions during times of emergency. As an elected ofﬁcial, the consul may have had more trust among the public.

Term Limits

The magistrates suffered under severe term limits of, in most cases, one year. They could not run for reelection (although this tradition was not always observed), and there seemed to have been a presump- tion, on occasion disregarded, that a Roman could hold an ofﬁce he had held before only after a long interval. In the United States, most ofﬁceholders enjoy longer terms—two or more years. In the national government, only the president faces a term limit.

Scholars are generally critical of term limits because they prevent competent ofﬁceholders from staying in ofﬁce and reduce the incentive of individuals to run for ofﬁce in the ﬁrst place. In Rome, term limits may have been attractive for several reasons. First, term limits prevented consuls from acquiring monarchical powers. They had to share power over time, which meant that abusive acts undertaken during their term of ofﬁce could be reversed. Second, term limits also prevented ofﬁceholders from accumulating political capital, which would enable them to acquire excessive power. A person who held ofﬁce for only one year would be quickly forgotten. The Roman system may have worked well enough for a period of time, but its chief ﬂaw became apparent in the last century of the Republic. Because no civilian politician could amass much power through ofﬁce, and perhaps because none had strong incentives to discharge their ofﬁcial duties competently, none could stand up to the military leaders who earned glory at battle and shared loot with soldiers and civilians who supported them. Military posts were not term-limited. …

Rewarding and Sanctioning Government Ofﬁcials

… Senatorial debates, assembly meetings, and judicial proceedings were all public and seem to have been attended by a great many people. However, physical structure put limits on the extent of public monitoring. Rome had a population in the hundreds of thousands but in certain public spaces, only tens of thousands of people could have been present.

The division of powers by policy domain also lent itself to public monitoring. If the games were unsatisfactory, then everyone knew to blame the aedile with the responsibility for them. If a military campaign ended in failure, then the relevant consul or praetor could be held accountable. In addition, intense competition for political ofﬁces gave candidates with access to private information incentives to disclose such information when it harmed opponents. Finally, the requirement that citizens be out of ofﬁce for two years between magistracies ensured that the medium-term consequences of their actions could be observed before they were elected to a new ofﬁce.

But what were the rewards and sanctions, concretely? Roman politicians sought honor and wealth. Many politicians inherited a distinguished family name that imposed burdens and conferred opportunities. A family name is a form of human capital that one inherits rather than earns. Because Romans gave some deference to people from old families, a distinguished family name provided its bearer with political opportunities but also subjected him to a kind of bond. If he ended up a political failure, he disgraced his ancestors and deprived his descendants of the opportunities that he enjoyed. Maybe, these psychological factors gave Roman politicians longer time-horizons than those of American politicians.

To obtain honor, a Roman politician must contribute to the glory and prosperity of Rome. If he is an aedile, he must stage impressive games. If he is a consul, he must win military victories or keep the peace. Cicero won honor by suppressing the Catilinarian conspiracy. The highest honor was the triumph, a spectacular victory parade that enhanced the leader’s prestige among the public, which one could earn only by being a military leader. Most (but not all) military leaders had obtained the rank of consul (or praetor). But one could become a consul or praetor only if one ﬁrst was a quaestor (Pompey represents an exception to this rule). Thus, the Roman system har- nessed the thirst for military glory to more mundane civic needs such as the management of public ﬁnances.

Money also played an important role in Roman politics. Ofﬁceholders were not paid, and were often expected to ﬁnance projects out of their own wealth. Many ambitious politicians resorted to borrowing; if they did not repay their debts, they could be ruined. At the same time, ofﬁces presented opportunities for gain. A consul who was given com- mand of an army received a large share of the booty if he gained victory, and provincial governorships—the reward to consuls after their term of ofﬁce expired—tendered semi-legal opportunities for their occupants to enrich themselves at the expense of the governed. In these ways, high ofﬁces offered pecuniary awards as well as honors, aligning politician’s incentives to do well with the self-interest of the Roman people.

But only partially. A magistrate who borrowed in order to win an election, and could only repay those debts by winning a military victory, had strong incentives to win a military victory. But he might also plan and execute his military campaign in a way that yields the highest gain for himself rather than for Rome—for example, targeting a weak but wealthy enemy rather than a powerful enemy that posed more of a threat. Similarly, governors who milked the provinces for their own beneﬁt set the stage for civil strife in the future.

The Romans were aware of these problems. Consuls sought triumphs—the highest political honor—by winning battles, and this might cause the distortion in incentives noted above, but the senate had the authority to confer or deny them, and it could have used that authority to dissuade consuls from pursuing military victories of no value for the Roman Republic. Magistrates and governors who abused their ofﬁce could be prosecuted after the term of ofﬁce expired. However, many prosecutions were thought to be politically motivated, the result of private feuds. Thus, whether the availability of prosecution reduced rather than increased … costs depends on how impartial the judicial system was. …

… Censors could remove senators who committed crimes, became bankrupt, or violated serious moral norms. In the U.S. system, the Senate (and the House) have the responsibility for policing their members. …

Compared to the American system, Roman politicians had a great deal more at stake in politics. A successful political career resulted in fame, riches, and respect. A failed political career could result in death (at the hands of mobs and even political competitors) or exile (after a politically motivated prosecution), and certainly bankruptcy and disgrace. The high stakes must have given Roman politicians very strong incentives to perform well. However, they also had perverse consequences. Because one could be prosecuted only after leaving ofﬁce, magistrates had incentives to forestall such prosecutions by taking legal action against their enemies. …

In the United States, politics is not a life and death struggle. The low stakes ensure that power is given up voluntarily and transfers of power are peaceful. Elected ofﬁcials have weaker incentives to rig the game in the incumbent’s favor. If incentives to perform well are less strong, by the same token the incentives to challenge the constitutional system are weaker, and so political stability is greater.

The Role of the Senate

The system of independent magistrates creates a problem of coordination. If there are multiple aediles, which aedile is responsible for the games? If there are two consuls, which one will take command in the east and which will take command in the west? These are problems of coordination which are characteristic of unbundled executives. The senate helped coordinate magistrates.

Sometimes, the senate presided while magistrates drew lots. At other times, the senate directly appointed magistrates to undertake particular tasks. By issuing decrees that reﬂected general policies, the senate also provided a means for magistrates to coordinate their actions. But in the late Republic, the efforts of the senate to control the assignments of the consuls were hampered by generals who relied on laws proposed by tribunes that assigned provinces …

… The senate also played an important role in maintaining the continuity of government. Because most magistrates had one-year terms, they might have taken a short-term view toward Rome’s interests. The inﬂuence of the senate assured people that policies adopted by magistrates extended for greater than one year. …

For the senate to serve these functions, it would need to be able to control the magistrates. It had several methods for doing this. …

… In performing these functions, the senate diluted the control of the people over the magistrate through elections and popular approval of legislation. … The de facto and de jure qualiﬁcations for the senate also ensured that it was not a representative body. On the other hand, because senators were drawn from ex-magistrates, they were politicians who had in the past proven that they were acceptable to the people in elections.

Another feature of the senate was that it was a large body—generally in the neighborhood of three hundred people, or many more in the late Republic—and hence subject to all the problems of collective decision making. Senators had an incentive to free-ride on information-gathering and deliberation, and were vulnerable to agenda-setting by the magistrates, who could introduce bills or proposals and make take-it-or-leave-it offers. These factors suggest a weak and passive body. …

… The U.S. Senate is often called a millionaire’s club, but it hardly resembles the Roman senate at all. It does not serve the interests of the elites in any clear sense; it is certainly not understood to have that function, as the senate in Rome was. The United States has a single [constituency] (“we the people”) rather than a dual [constituency] (SPQR). This is surely the result of the fact that the United States does not have clearly demarcated classes; as a result, it would make little sense to give different government institutions the responsibility of advancing the interests of one class or the other.

Judicial Process

From a modern perspective, it is strange that a magistrate, who has executive and legislative power, could also serve as a judge. As judge, the magistrate would have strong incentives to favor political allies and harm political adversaries rather than respect the rule of law.

Although the details of judicial procedure in public law cases are murky, there appear to have been a number of checks on this type of behavior. It appears that magistrates never or rarely initiated the cases in which they served as judges. Cases were initiated by the senate and the popular assemblies, by different magistrates, or by provincials in the case of alleged corruption on the part of a Roman ofﬁcial. The jury was an important check as well. Not only would acquittal protect the defendant; it would also give rise to an inference that the magistrate had wasted public resources pursuing a politically vindictive case. … The law was mostly customary and the jury had a great deal of discretion to decide cases as it saw ﬁt. However, because jurors were selected from the upper classes, the system as a whole is likely to have worked in favor of the wealthier and better connected.

Popular Sovereignty

Rome had a mixed system of representative and direct democracy. People voted for magistrates, who conducted the government’s business; but they also voted on bills proposed by the magistrates. The system is in many ways appealing. The people appoint [government] agents to draft and propose bills but retain the right to veto bills that are contrary to their interests.

The U.S. founders rejected direct democracy in favor of a system of representative democracy, where people vote for representatives who both propose and vote on bills. Such a system would appear to increase [government] costs; why then was it selected?

There are a number of problems with the Roman system. First, the direct democracy component of it did not really eliminate [government] costs. Magistrates still had agenda-setting power, enabling them to propose bills that the public preferred to the status quo but not to any number of possible alternative bills. A small and collegial body, by contrast, can set up rules to mitigate agenda-setting. Second, most Romans were illiterate, and the bills had to be read to them. It is hard to believe that the public was able to understand complex laws, which means that magistrates could not propose complex but important laws or (more likely) that people voted on laws the details of which they did not understand. … Third, people could not be, and were not, compelled to attend assemblies. This probably meant that only people with low oppor- tunity costs or a special interest in proposed bills attended assemblies. These people were not necessarily representative of the population as a whole, which means that many laws were enacted that served special interests rather than the public interest. …

The Fall of the Roman Republic

Republican institutions decayed over the last century . A series of dictatorships interspersed with civil war and periods of renewed assertion by the senate ﬁnally ended in 27 , when Octavian was granted the title of Augustus. Although the senate continued to exist, as did many of the constitutional forms, Augustus had immense political power as a result of his wealth, his control of armies, and his popularity. Over time, he and his successors would receive de jure recognition of their imperial authority.

Many of the ancients blamed the collapse of the Roman Republic on decadence and the corruption of public morals that resulted from the vast wealth that ﬂowed into Rome from its conquests. Sallust and some modern historians point to changes in military organization. In the earlier Republic, soldiers were recruited from among propertied farmers; in the later Republic, commanders (beginning with Marius) recruited them from the proletariat (Sallust, Jug. 86.2). Thanks to the immense rewards from a successful military campaign, soldiers transferred their loyalty from the Republic to particular military commanders such as Marius, Sulla, Pompey, and Caesar. Polybius and Machiavelli believed that the Roman constitution had lost its “balance” between monarchical, aristocratic, and popular elements as a result of the expansion of the power of the plebeians. In the same spirit, Montesquieu argued that Roman conquests resulted in an inﬂux of defeated populations, who did not share the interests of the Romans. Modern historians concur that Rome’s conquest of foreign countries enriched the wealthy while generating a larger class of poor people who were absorbed into the state; the tensions between these classes eventually could not be contained in a republican system.

The historical debate was dominated by the image of the balanced constitution introduced by Polybius, who himself drew on themes in Plato, Aristotle, and other philosophers. But there are two problems with the idea of the balanced constitution. First, it draws on an old notion that society is divided into classes that pursue their class interests rather than the modern notion that society simply consists of individuals who pursue their self-interest. Polybius imagined an aristocracy (“the few”) and the common people (“the many”), and an inherent struggle between them over social resources. This is certainly not an accurate picture of society today; it is not a good starting point for political analysis even for the ancient world. People then as now had individual projects and ambitions. They lived in a class system but there is no evidence that the classes acted as uniﬁed agents. The classes were relatively ﬂuid. Many plebeians joined the ruling class, becoming “nobles,” a more comprehensive group of wealthy and inﬂuential people than the “patricians.” Many patricians sought political power by offering leadership to the plebes. Second, the idea of balance is ambiguous. Putting aside the extreme cases of absolute monarchy and mob rule, one cannot evaluate the “balance” of a constitution because the different elements do not have “weights” that can be compared along a common metric. When the U.S. Senate became popularly elected, the many gained at the expense of the few, but did the constitution become unbalanced as a result or just more perfectly balanced? Such a question is impossible to answer. Polybius believed that the Roman constitution became “unbalanced,” as the senate lost power to popular assemblies, but one could just as easily argue that the constitution became more balanced as otherwise the senate was not adequately checked.

The better approach is to think about constitutions in terms of whether they generate good political outcomes—order, security, prosperity, and the like. The U.S. founders, although captivated by the ancient notion of balance, did make arguments along these lines. They rejected the Roman elements of direct democracy, which resulted in sometimes hysterical and inconsistent political outcomes, and favored the senate, which is portrayed as a sober deliberative body. Hamilton criticized the division of the executive between two consuls because it led to conﬂict. Madison criticized the concentration of separate legislative, executive, and judicial powers in individual magistrates because it led to “tyranny”.

The conventional wisdom beginning with Polybius is that the Roman constitution failed because the public obtained too much power. It foolishly marginalized the senate—the only continuous deliberative body—and put its faith in demagogues and tyrants. However, the opposite view seems more plausible. The senate refused to acknowledge that a de facto shift in political power had occurred as a result of the expansion of the population, and insisted on maintaining its de jure privileges rather than yielding constitutional power to the people, except in small grudging squibs. The elites became vastly wealthier during the time period as a result of conquest, which produced an inﬂux of valuable goods including slaves that accrued mostly to the upper class. The increase in the number of slaves both increased the value of farmland, which was mostly held by the elites, and reduced the value of free labor, resulting in the reduction of wages and employment. Meanwhile, many Roman soldiers lost their farms as a result of war, political disruption, and their long tenure in the ﬁeld. All this exacerbated the conﬂict between the lower and upper classes. In addition, the senate kept the magistrates weak because it feared that powerful magistrates would redistribute wealth to the people; but in the process it also failed to give magistrates the power to keep order and prosecute wars in an efﬁcient manner. All of this gave rise to a demand for powerful ﬁgures who would serve the interests of the masses and engage in efﬁcient governance. A number of individuals saw the opportunity to obtain power by appealing to the masses and adopting redistributive programs. These included Tiberius and Gaius Gracchus from roughly 133 to 121 ; Gaius Marius, who was consul seven times between 107 and 86 ; Lucius Sergius Catilina and Publius Clodius Pulcher in succeeding years; Pompey; and ﬁnally Julius Caesar, who was consul in 59 and then dictator from 49 to his assassination in 44 . It seems apparent that, backed by soldiers and common people, these individuals had political power that greatly exceeded the constitutional authority that they could obtain. Because the senate and other vested interests blocked peaceful constitutional change, constitutional change occurred through violence.

The transition to absolute monarchy is treated as a tragic failure of self-government, but it should also be kept in mind that the monarchy ended the civil wars, kept the peace, and initiated a new era of conquest and prosperity for the Romans. It may well be the case that monarchy was the better constitutional form for the times—for a much larger and more diverse Rome than existed in the ﬁrst few centuries of the Republic. After all, monarchy would be the dominant constitutional form for large states for the next two millennia, so it is likely that it had signiﬁcant advantages over the republican form of government in that era. It seems likely that as Rome became more populous and heterogeneous, the cumbersome republican system could not arrange transfers from policy winners to policy losers whenever the government created a new public good. Too many veto points blocked the way. A dictator can more easily arrange for transfers, and can stay in power as long as he makes sufﬁcient transfers to the policy losers. The major cost of dictatorship— that the dictator favors a clique of supporters—may have been tolerable when the alternative was either gridlock or anarchy and civil war. Maintaining order requires constant vigilance, and ﬂexibility that allows one to redeploy resources whenever a new threat arises. The Republic did not have a powerful enough executive once it exceeded a certain size; by dividing executive power among multiple ofﬁces and institutions, it created a system that was too cumbersome to react to new threats as they arose.

CONCLUSION: LESSONS FOR THE U.S. CONSTITUTION

The founders of the U.S. constitution were deeply knowledgeable about the constitution of the Roman Republic and heavily inﬂuenced by it. They accepted Polybius’ view that if a constitution is not balanced, the political system will degenerate into tyranny or mob rule, but they rejected the particular checks and balances of the Roman constitution. Instead, they were persuaded by Montesquieu, and their own experiences with the state governments, that the better approach was to divide the government into legislative, executive, and judicial branches that had the power to check each other and the institutional motivation to maintain their authority.

With the beneﬁt of centuries of research not available to the founders, one might worry that the founders took the checks and balances of the Roman constitution too literally. Many historians attribute the success of the Romans to the relatively coherent class of elites, who had a common worldview (emphasizing conquest and imperial expansion) and could buy off the masses through patron-client relationships and occasional redistributive laws and political institutions. The key to success, then, was a small, homogenous population—where everyone in the political class knew each other, and everyone could observe what everyone else was doing as they were doing it, at least within the conﬁnes of Rome. It was the expansion of the population after the Social Wars that ﬁnally destroyed Republican Rome and necessitated the replacement of Republican institutions with the dictatorship.

Madison, inﬂuenced by Montesquieu’s skepticism about large republics, worried about this problem; federalism was supposed to be the solution. And indeed state constitutions did not fetishize the separation of powers as the national constitution did. Over time, the independence of the judiciary diminished in the states—judicial terms in nearly all states have been relatively short, and electoral systems in most states kept judges in check—and party politics overcame institutional checks and balances. So an institutionally weak national government sat atop institutionally powerful state governments.

But in the twentieth century federalism eroded in the United States under the pressure of scale economies that favor a national market and national security. Separation of powers at the national level also yielded to a system dominated by the executive who controls a vast bureaucracy, and is weakly checked by a largely reactive Congress, and a deferential judiciary. So one might see a parallel development in Rome and the United States: a formal system of checks and balances that may have worked adequately early on, but that produced gridlock as the population expanded, with the result that political agents worked around and undermined the original constitutional structure. In Rome, this process occurred through a series of constitutional crises that culminated in the establishment of a permanent monarchy. In the United States, however, the process was more gradual, and dictatorship seems no more likely today that an at any time in the past. Fortunately, we have advantages that the Romans lacked—notably, a free press; a wealthy, literate, and educated citizenry; a robust party system; and a widely respected norm of political equality that extends throughout the entire population. These hard-won cultural endowments have taken up the slack left by the relaxation of the archaic system of checks and balances we inherited from the Romans. [END]

The Source:

Eric A. Posner*, ‘The Constitution of the Roman Republic’, in Roman Law and Economics: Institutions and Organizations, Volume I, Oxford University Press 2020

*Not a Social Science Files subscriber

Evolutions of social order from the earliest humans to the present day and future machine age.