Valentina Arena, Libertas & Politics in the Late Roman Republic
‘Liberty’ in Rome: mechanisms and expectations of rights and protection against discretion in law and constitution during the late Republic..
In her book Libertas and the Practice of Politics in the Late Roman Republic, published in 2012, Valentina Arena wrote:
Chapter 1
… [As] far as political liberty is concerned, namely the liberty of the citizen in relation to the commonwealth, it is possible to conclude from Roman juridical texts that libertas at Rome described a status of non-domination, which allowed the individual to conduct his life according to his own wishes, at the mercy of nobody else except himself. Contrary to modern conceptions of liberty, therefore, libertas was defined in Rome in terms of the individual’s status and not in terms of actual available choices. As it does not refer to the absence of interference or of actual constraints, this definition of liberty does not deal with the availability of choice at the individual’s disposal, but rather refers to the status of the individual agent.
However, the word status, which denotes the legal position of the individual characterised by a system of juridical relations, the existence of which guarantees the individual’s security, is never applied in legal texts to designate the condition of slaves, who were deprived of all rights. Slaves were regarded as nothing, non-existent (pro nullis habentur), and this notion was articulated in expressions which denied the slaves the possession of any persona, caput or status. Their standing is consistently described as condicio servilis. Condicio usually indicates an unstable or transitory condition, characterised by the absence of those juridical guarantees of free men, exposing the slave to the arbitrary interference of his master, who was thereby in a position to act as he wished and with impunity. This condition did not necessarily imply an interference detrimental to the interest of the slave (and ultimately manumission [release from slavery] was a potential consequence of this interference) but denoted the slave’s absolute dependence on his master’s will. …
… This shared understanding of libertas in the Roman Republic found its clearest symbolic expression in two emblems: first, in the public building, the Atrium Libertatis, where the most important operations defining the condition of Roman citizenship were performed, and second, in the almost ubiquitous pilleus, the hat worn by newly freed slaves.
Within the visual context of the late Roman Republic, the triumphal pictorial art of the temple of Libertas, the image of its cult statue, the depiction of this deity on coins and the grand Atrium Libertatis in a very prominent location in the city all symbolically expressed and manifested the meaning of libertas as a widely held social value. In the first instance, these all embodied the notion of the status of libertas as opposed to that of slavery.
Chapter 2
The Citizens’ Political Liberty
In the first century BC the basic notion of libertas was conceptually defined as a status of non-slavery. It was figuratively expressed by the pilleus [the hat worn by newly freed slaves], which reinforced and propagated libertas as an ideal amongst its viewers. In juridical terms, libertas was also socially experienced as a notion which would be enshrined in the status personarum of imperial legal texts, as the status of non-subjection to the arbitrary power of somebody else, either an individual or a group. It thereby described the status of an individual who was not subjected even to the possibility (as opposed to simply the actuality) of arbitrary interference. It follows that the Roman definition of a free person was formulated in negative terms: it described the status of an individual who was not a slave, that is an individual who was not in dominio or in potestate of another person or group of persons – who did not, in other words, live at anyone else’s mercy.
This shared notion of liberty is also attested in the extant writings of the historians and political thinkers of the first century BC, such as Cicero, Sallust and Livy. These authors of course describe slavery itself by adopting the vocabulary appropriate to Roman legal discourse, referring to the condition of slaves as either the condition of subjection to a master (in potestate), or the status of prisoners of war – a condition of dependence upon the will of the enemy (in potestate hostium) that entailed deprivation of both liberty and Roman citizenship.
However, these authors also adopt legal vocabulary to describe the status of political liberty. In describing the loss of political liberty they adopted the same negative terms as those adopted in describing the loss of juridical liberty, so that the meaning of possessing or losing one’s own political liberty was analysed in terms of what it meant to fall into a condition of enslavement or servitude. Thus, Livy could state that Roman citizens should exercise their vote according to their own choice, acting as free men rather than under compulsion – that is, not in the manner of slaves; he could also claim that the conferral of a command by sole senatorial decision would have enslaved the suffragium of the people to the power of the few and reduced it in potestatem paucorum. …
… Since, in Roman juridical discourse, slavery was the status of dependence on the arbitrary will of another person or groups of persons, it follows that the Romans, conceiving political liberty by means of the metaphor of slavery, conceptualised it as a status of non-subjection to the arbitrary will of another person or group of persons, and analysed its loss in terms of falling into a condition of slavery.
The ability to avoid this fall, and to preserve the status of political libertas, was dependent on two very important conditions:
(a) the civic status of the individual Roman citizen, and
(b) the constitutional arrangements of the commonwealth in which he lived and where varying levels of liberty corresponded to different sections of society. …
… In Rome during the Republic a person possessed political liberty in the first place by virtue of his being a civis. The status of political liberty was achieved by a matrix of rights (iura) that protected the individual citizen’s range of choices against the imposition of an alien will, thereby allowing him to conduct his life at his own volition. As [one author] has noted, the ‘Romans often associated their right or rights (ius or iura) with their libertas, or used the terms interchangeably.’
These rights constituted the institutional means by which the liberty of citizens was preserved from the domination of the ruling class, rather than from their interference. The suspension of these rights, which would have exposed Roman citizens (even at the risk of their lives) to the whim of those in power, would not necessarily have narrowed down the range of options available to them; it would, however, have put them in a condition of domination by the ruling class. …
… Citizens’ rights represented the legal bulwark that protected the status of liberty and allowed citizens to pursue their chosen ends. They functioned as the means through which Romans succeeded in conducting their lives unobstructed by magistrates or groups wielding political power, in the pursuit of their freely chosen goals.
By protecting the action of the individual from the exercise of arbitrary power, these iura allowed the individual to perform an action as a matter of right rather than grace. They guaranteed the citizens’ ability to conduct their life at their own will without being subjected to others’ whims or preferences; that is, they ultimately guaranteed the citizens’ status of liberty. In our sources, the rights to suffragium, provocatio, all the powers of the tribunes of the plebs … and the rule of law generally, are presented as the true foundations of Roman liberty.
To be precise, they were the institutional means through which the status of political liberty was established and maintained, rather than the incarnation of liberty itself, as is often claimed.
Although the gradual introduction of these rights from (according to tradition) the very early years of Rome was perceived as the result of partisan political manoeuvring, by the first century BC they had become universally accepted as the essential means of protecting citizens from arbitrary coercion or interference. Since they provided the citizens with the necessary basis to enjoy a full life, these rights can be described as the basic Roman liberties that protected the range of choices that were deemed necessary within Roman society to guarantee its citizens the enjoyment of a free life. In this conceptual framework, laws functioned as the highest protection of political liberty, since, as expression of the will of the citizen body, they provided these rights with a binding force that was equally applicable to all.
In the late Republic, while the rights to provocatio and suffragium and the legal prerogatives of the tribune of the plebs were regarded as basic Roman liberties, a notable exception was the right to ownership. Although there is no doubt that the ownership of property was essential to an independent life (that is, a life not at the mercy of someone else), nowhere in our sources does the notion of the right to property appear explicitly cited in direct connection with the value of liberty as a definitional element of Roman citizenship.
Certainly, during the Republic, the rights held under the ius civile by Roman citizens qua citizens included the right to own property. However, although it was part of the bundle of the positive legal rights held by the individual citizen, it did not define Roman citizenship. Rather than being defined by the right to property, citizenship was a precondition for the existence of that right. Basic Roman liberties provided the ability to enjoy the life of a free citizen by protecting certain choices from external domination. In the history of the Republic, their specification was frequently the result of the struggle for power by marginalised groups, but in the first century BC they had become established as a set of basic rights which identified free Roman citizens.
One of these was the citizens’ right to provocatio. This protected the life and the person of a citizen against the coercive powers of Roman magistrates. The citizen in trouble made a cry for help to the people, ‘provoco ad populum’, which, although in archaic Rome it may have functioned as a more generic measure employed to rally support round a threatened individual, in the later Republic came to be regarded as a guarantee against execution without trial and, after the lex Porcia, against flogging. …
… The right of provocatio as enshrined in these laws was accordingly presented as the guardian and bulwark of Roman libertas. As the plebiscitum Duillianum asserts, all magistracies had to be subject to the right of provocatio; the death penalty was reserved for those who attempted to set up an magistracy that would be exempted from this right, since such an action was tantamount to the establishment of tyranny. …
… However, the right to provocatio was not in itself sufficient to guarantee a status of non-dependence on the arbitrary power of magistrates. Citizens who thought themselves to have been wronged could also avail themselves of the right of appellatio to a tribune. The tribune, protected by his sacrosanctity, which allowed him to interpose his own person to obstruct the actions of magistrates, was entitled to succour any citizen who appealed to him. By virtue of this right, citizens could not be denied access to the tribunes, who were stationed in easy reach by the Basilica Porcia (near the comitium and the curia), were prescribed by legislation not to be absent from Rome for a whole day, and were not even allowed to shut the door of their house in day- or night-time for the entire duration of their office. Ultimately, however, this right rested on the tribunes’ decision whether to intercede in support of the appellant, so as to benefit the latter by exercise of their auxilium. A tribune could deem it inappropriate to intervene in the citizen’s favour. … The citizen’s right was appellatio, whereas auxilium was the tribune’s right. …
[Conclusions of Chapter 2]
… Thus,` laws enacted by the whole citizenry and expressing the common good were a means to create a status of liberty for Roman citizens and for the Roman commonwealth. It follows that the rule of law should always be upheld if the status of liberty was to be maintained. If this was not the case, the citizens would be exposed to the discretionary powers of those in command, and thereby placed effectively in a condition of servitude. …
… [When] a breach is made in the rule of law, liberty will depend on the virtus, the moral qualities, of the leaders, and individual citizens will find themselves subject to the discretionary powers of their rulers.
Against the oppression of blameless citizens by prevailing factions, Roman ancestors devised the laws of provocatio, which, according to Caesar, guaranteed the citizens’ liberty from the coercive behaviour of a magistrate, and, by preventing any one faction from prevailing, preserved the liberty of the commonwealth from the subjection to the will of only one section of the community.
To preserve a state of liberty laws should be upheld. However, in order to do so, it was essential that laws were also known to everyone or, at least that knowledge of them was potentially available to everyone who wished to have it. Their application should not exclusively be left to those in power, from whose discretion the power of interpretation and manipulation had to be removed. …
… Conceptually elaborated as the antonym of the metaphor of slavery, Roman political liberty corresponded to the status of the citizen sui iuris. This status, characterised by the absence of the possibility of being arbitrarily interfered with in the exercise of one’s own choice, was commonly understood as the basic meaning of liberty, established by the possession of civil and political rights, and guaranteed by the rule of law. The juridical matrix composed by the right to provocatio, the right to suffragium and the legal prerogatives of the tribune of the plebs, expressed in the laws, allowed Roman citizens to conduct their lives according to their own wishes and without experiencing subjection to the whims or preferences of others.
By the late Republic no one claimed that the right of provocatio should be dispensed with, or that the tribunate of the plebs, despite all the troubles for which it might have been considered responsible in the commonwealth, should be abolished tout court. Both legal and institutional bastions of Roman liberty were even preserved in Cicero’s ideal code which, by his own admission, was conceived as the legal and institutional framework of the best res publica.
These institutions were so ingrained in the Roman political culture of the Republic that, by the first century BC, they were perceived as essential to the preservation of citizens’ liberty. Therefore, the disputes about their role, when they occurred, were ultimately concerned with the limitations that should be applied to these rights and institutions, but not with their very existence.
In practice, however, this legal and institutional matrix was not sufficient on its own to protect the citizen’s liberty, since, in the reality of the dynamics of power relations, the actual protection of an individual’s liberty would require more than simply the establishment of a magistracy or the enactment of laws, however powerful and well thought-out they might be. In order to protect fully the citizen’s liberty, alongside certain institutional arrangements, it was necessary, for example, to implement an actual distribution of political power, that empowered the weakest sections of society, limited the elite’s supremacy, widened access to knowledge and fostered the free exercise of public opinion.
However, although in the so-called ‘struggle of the orders’ the plebeians are also represented as fighting for these forms of protection, they are not presented as part of those basic rights essential to the establishment of the citizens’ status of libertas.
In the Roman society of the late Republic, the actual redistribution of power, the creation of an informed public opinion or the diffusion of knowledge were conceived of as important means of strengthening and preserving the citizens’ status of liberty, but, however essential, were not counted amongst Roman basic liberties.
In the late Republic, the Romans agreed that, in order to be free, two important conditions should be met: first, all citizens should be equally endowed on the same basis with the same basic liberties, and second, that the constitutional arrangements of the commonwealth in which they lived should be of such a nature as to enable the commonwealth to be in the position neither to exercise any form of domination over its citizens, nor to be itself dominated by any external power. …
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The Source has been:
Valentina Arena, Libertas and the Practice of Politics in the Late Roman Republic, Cambridge University Press 2012
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