kennedy. cicero roman republicanism and the conte

8/17/2019 KENNEDY. Cicero Roman Republicanism and the Conte

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Cicero, Roman Republicanism and the Contested

Meaning of Libertas

Geoff Kennedy

Durham University

Despite growing interest in neo-Roman republicanism, few republicans examine the character of Roman republi-

canism, either in its constitutional practice, its social relations or in the works of its primary defenders.This article

examines Cicero’s two systematic dialogues of political philosophy – De Re Publica and De Legibus – in order to assess

the status of liberty as ‘non-domination’ in these texts. It argues that, far from liberty as non-domination being the

operative conceptual ideal in Cicero’s republicanism, concordia along with equity as a form of proportionate equality that

depends upon the recognition of substantive differences of status and power serves as the foundation of his republican

political thought. This form of ordered liberty is offered as an alternative to the conception of liberty as a form of

‘non-domination’ that Cicero attributes to the democracies of ancient Greece and the populist project of popular

reformers such as Tiberius and Gaius Gracchus.

Keywords: republicanism; liberty; Cicero; Rome

In recent years,‘neo-republican’ scholars have articulated a republican conception of liberty

as an alternative to that of the ‘negative’ and ‘positive’ conceptions of liberty. These

contributions to political philosophy turn to the history of Roman republican political

thought as the basis of this alternative tradition.According to Quentin Skinner (1978; 1984;

1993; 1998; 2002; 2006), republican writers in Renaissance Italy such as Machiavelli sought

to recover the Roman tradition of libertas and ‘free states’. In seventeenth-century Englandneo-Roman writers inspired by Machiavelli as well as by Cicero and the Roman historians

argued that freedom is not merely freedom from external interference in the Hobbesian

sense; rather, freedom means independence from the will of others. From this perspective,

a constraint is not characterised merely in terms of coercion or interference, but rather in

terms of a persistent condition of dependence on the arbitrary will of another being.

Similarly, Philip Pettit (1997) has articulated a theory of republican liberty as a form of

‘non-domination’ as opposed to the ‘non-interference’ prized by liberals. Other republican

theorists have sought to elaborate republicanism further as an alternative to liberalism and

communitarianism in the modern world (Maynor, 2003; Viroli, 2002).

In doing so,republican theorists argue that Isaiah Berlin’s (1958) dichotomy of ‘negative’

and ‘positive’ liberty is unrepresentative of the most prominent historical articulations of theconcept of liberty. For Pettit (1997, p. 18), the ‘negative–positive distinction has served us ill

in political thought’, by perpetuating the myth that ‘there are just two ways of understand-

ing liberty’. The irony is that Berlin’s conception of negative liberty as the ‘authentic’

conception of liberty stems initially from Hobbes’ definition, which serves to depoliticise

liberty and make it compatible with absolutism. The neo-Roman conception of liberty,

however, is ‘neither the negative nor the positive liberty described by Berlin and Constant’

(Viroli, 2002, p. 40). Existing within the interstices of negative and positive liberty,

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doi: 10.1111/1467-9248.12037

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republican conceptions of freedom defy such simple classification. On the one hand,

republican liberty is clearly not a form of positive liberty; it requires neither ‘self-mastery’

nor ‘self-realisation’ in the form of political participation. As Pettit (1997) contends, the

constitutional role of the plebeian tribune established as a result of the ‘Conflict of theOrders’ was merely to intercede in the affairs that took place between the senate and

the plebs.1 It did not empower the plebs in the way that Athenian democracy empowered the

demos. On the other hand, the notion that freedom depends upon non-domination as

opposed to non-interference means that republican liberty is not the equivalent of Berlin’s

conception of negative liberty.2 For example, under Berlin’s definition, a slave could

conceivably be ‘at liberty’ in so far as his master decided not to interfere with his physical

movement. For a republican, the condition of slavery implies a form of dependence on the

will of another that results in a condition of domination – regardless of any act of

interference. On the other hand, the non-arbitrary interference of the state – in the form

of the rule of law – is considered to be both compatible with and constitutive of the liberty

of the individual in a free society. Liberty does not, in other words, reside in the ‘silence of

the laws’.

The insistence that neo-Roman liberty is not a form of positive liberty differentiates it

from conceptions of democratic self-mastery that are said to be rooted in the Athenian

tradition.3 It is to Rome, therefore, that the republican tradition traces its preferred notion

of liberty. For Pettit (1997, pp. 5–6), it is the ‘tradition associated with Cicero at the time of

the Roman Republic’, carried on through the Renaissance by Machiavelli, through to the

early modern period by Harrington and eventually to eighteenth-century England,

America and France. For Skinner (1993, p. 300),the tradition is traced back to those writers

‘whose greatest admiration had been reserved for the doomed Roman republic: Livy,

Sallust, and above all, Cicero’. Maurizio Viroli (2002, p. 105) states that the ‘classical theoryof the res publica is found in the works of Roman political authors and historians ...

especially Cicero’s De Re Publica and De Officiis’.

Despite this emphasis on the Roman aspect of republicanism, few republicans examine

the character of Roman republicanism,in its constitutional practice, its social relations or in

the works of its primary defenders. In Pettit’s text, a postscript has been appended to

elaborate on the Roman origins of his conceptualisation of liberty as non-domination.This

postscript, however,does nothing to illuminate further the realities of republican Rome, nor

does it attempt to probe deeper into the works of Roman republican writers. Rather, it

merely emphasises, to a greater degree, the intellectual debt to republican Rome.This blind

spot in the republican literature exposes it to a number of critiques: the first pertaining to

the reality of republican liberty as a form of non-domination; the second pertaining to thestatus of liberty as a form of non-domination in the works of key republican writers such

as Cicero.

The republican understanding of Roman liberty is dependent upon the work of Chaim

Wirszubski (1960), whose analysis of the Roman conception of libertas is the primary

Roman source among all of the republican scholars mentioned above.4 Wirszubski dem-

onstrates that for the Romans liberty referred to the ‘liber’, that is, the freeman in opposition

to the slave.To be free means to be ‘capable of possessing rights of one’s own, and this is

possible only if one is not subjected to someone else’s dominium’. Liberty, therefore,

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‘consists in the capacity for the possession of rights, and the absence of subjection’

(Wirszubski, 1960, p. 1). This abstract definition of liberty as an absence of ‘dominium’

forms the basis of both Pettit’s philosophical reconstruction of republicanism and Skinner’s

historically oriented study of the neo-Roman tradition in early modern Europe. Yet Wirszubski’s analysis of republican liberty is more nuanced than its treatment at the

hands of contemporary republican theorists.While attempting to comprehend the funda-

mental principles of libertas at an abstract level, Wirszubski (1960, p. 5) contends that this

abstraction is only for analytical purposes, for ‘the nature and extent of libertas are

determined by the nature and form of the Roman constitution’. More importantly,

Wirszubski identifies a tension within the concept of libertas between the civil rights of the

citizen and the authority of the state – a tension that often privileged the maintenance of

senatorial authority within the mixed constitution against the rights of the citizen. He notes

that ‘Libertas is not so much the right to act on one’s own initiative as the freedom to

choose an “auctor” whose “auctoritas” is freely accepted’ (Wirszubski, 1960, p. 35). He

writes:

Of the two cardinal notions that Roman libertas comprised, namely the republican constitu-

tion and the rights inherent in Roman citizenship, the former, on the showing of the extant

evidence, was by far the more prominent in the presentation of libertas by politicians and

political writers at Rome during the Late Republican period. Except on such occasions as

those on which the Populares upheld the civic right of provocation against magisterial action

supported by a S. C. Ultimum, libertas as a political watchword in the struggle of factions in

Rome meant in the first place a form of government, and not the rights and liberties of the

individual citizen (Wirszubski, 1960, p. 66).

Two points need to be highlighted. First, as a concept prone to interpretation, the meaningof libertas was contested by rival political groups, notably the optimates and the populares.5

While populares and optimates may not have been well defined political groupings with

clearly articulated ideologies or political programmes,6 each faction fought the other,

claiming ‘to be the champions of libertas’ (Wirszubski, 1960, p. 31). Second, prominent

defenders of the traditional republican constitution – Cicero among them – identified with

the optimates, and tended to privilege the security of the constitution, characterised by

senatorial dominance, over the civic rights of Roman citizens.This is not a contradiction;

within the aristocratic strands of Roman republicanism there is no contradiction in

characterising the security of the state as a form of liberty, for the libertas of the cives

presupposed the libertas of the civitas. In particular, optimates and other notables in the

Roman republican tradition upheld the convention of the senatus consultum ultimum: thedeclaration by the senate that the republic ‘was in real danger and that therefore unusual

measures for its protection were justified’ (Wirszubski, 1960, p. 57). Typically, the senatus

consultum ultimum ‘pointed out the quarters from which the State was threatened, and

implied that certain citizens, having adopted a hostile attitude towards the State, should be

treated as hostes’ (Wirszubski, 1960, p. 57). Under such conditions, the liberties of the

Roman citizen – as hostis – could be suspended, and unconstitutional powers could be

employed by the senate against these domestic enemies of the republic. According to

Wirszubski (1960, p. 58), the populares ‘were apt to be the victims of such treatment’ and in

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response tended to emphasise the significance of the civic liberties implied in the notion of

Roman libertas against the prerogatives of senatorial auctoritas. In this sense, Wirszubski

(1960, p. 61) suggests that it is they – the populist enemies within the republican tradition,

with their ‘insistence on the inviolability of the provocatio as against magisterial actionsupported or instigated by the auctoritas of the Senate’ – who are the champions of Roman

freedom.

Wirszubski’s account of Roman libertas, therefore, emphasises the contested nature of

the concept and suggests that the figures most associated with the republican tradition –

for example, Cato, Brutus and Cicero – identified with the political forces that were

more apt to invoke extraordinary executive powers against the rights of Roman citizens

in the name of preserving the ‘republic’. This point is supported by the important work

done by P. A. Brunt (1988), who goes so far as to say that there existed no single

conception of Roman liberty; indeed, in order to comprehend Roman liberty we need

to understand that it meant many things to many different people: some conceptions of

libertas emphasised the negative aspects of Roman liberty while others emphasised its

positive aspects, and some conceptions of libertas emphasised the democratic aspects of

liberty while others emphasised the elitist and aristocratic aspects of liberty. 7 This con-

tested narrative raises questions over the value of optimate interpretations of libertas within

the Roman tradition that have become associated with historical figures of note within

the republican canon.

Libertas and Concordia in Cicero’s De Re RublicaFrom the perspective of the history of political thought, the notable figure in the Roman

republican tradition is Cicero, who will be the focus of the remaining analysis. Despite his

significance, there is little systematic analysis of his political thought.8

Part of the reason for this neglect is due to the fact that, with the exception of fragments surviving in the works

of political theorists like Augustine, Cicero’s De Re Publica was lost until 1820.As a result,

it would not play an important role in the development of the republican tradition typified

by the likes of Machiavelli, Harrington, Montesquieu and others within the neo-Roman

republican tradition. De Legibus, however, would have been available to early modern

republicans, and given that it was intended by Cicero to be a sequel to De Re Publica (in the

sense that it articulates the specific laws of the ideal republican constitution) it is curious

that republican scholars have neglected to analyse its place in the republican tradition.

Skinner (2002, p. 12) has referred briefly to the opening preamble of De Legibus to

emphasise Cicero’s commitment to the rule of law and the safety of the people (salus populi

suprema lex esto), but he engages in no discussion of how De Legibus was received in the earlymodern period. Finally, De Officiis, Cicero’s last systematic work, was concerned not with

liberty, but with the virtues of the good man and citizen.

In the absence of any sustained analysis of his systematic political theory, republicans have

relied on his oratory as a source of republican liberty. In terms of understanding how the

Roman ideal of libertas was interpreted and transmitted by republicans writing in the early

modern period, this makes sense. For example, Skinner’s (2002, p. 11) work on English

republicanism prior to the establishment of the Commonwealth relies largely on Cicero’s

Philippics as the source of libertas and its importance to Cicero’s republicanism:

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As Cicero’s closing remark makes clear, to enjoy de facto freedom of action is not necessarily

to enjoy liberty. If your freedom is held at the discretion of anyone else, such that you continue

to be subject to their will, then you remain a slave.To enjoy liberty, in other words, it is not

sufficient to be free from coercion or the threat of it; it is necessary to be free from the possibilityof being threatened or coerced (emphasis in original).

For an understanding of the significance of libertas in Roman republican thought, however,

the neglect of Cicero’s systematic political thought in favour of his oratory seems prob-

lematic, for it raises some concerns regarding interpretation. To what extent do we take

Cicero’s legal and political speeches as being indicative of his republican ideal regarding

liberty, the state and the individual? As Neal Wood (1988, p. 62) argues, a problem exists

pertaining to ‘the weight that should be given to the polemics of the orations vis-à-vis the

more rational argumentation of the philosophic works. In the case of contradiction, the

position of the latter should be given priority’.This reliance on the orations to the exclusion

of De Re Publica, De Legibus and De Officiis increases the tendency to give to Cicero’s

political thought ‘a greater logical consistency and coherence than they warrant’ (Wood,

1988, p. 62). For example, in De Lege Agraria, when addressing the popular assembly, Cicero

praises the ‘counsel’, the ‘wisdom’ and the ‘laws’ of the ‘able’ and ‘illustrious’ Gracchi for

strengthening parts of the republic. However, in De Officiis, he writes that the Gracchi,

‘while alive did not win the approval of good men; and now that they are dead they are

numbered among those who were justly cut down’ (Cicero, 1991, II. 43). Elsewhere in the

text, he associates the Gracchi with imprudence, profligate spending and civil discord that

weakened the republic. In terms of the republican tradition, there seems to be a potential

danger here of expecting to find in Cicero’s oratory a conception of libertas that is said to

be representative of the conceptions of liberty that are thought to be constitutive of theneo-Roman tradition being articulated in the early modern period.The point here is not

to suggest that Cicero could not have meant to reference a form of liberty that is

understood to be a form of non-domination, but rather that, considered in the context of

his systematic political treatises, such a notion of liberty was not the cornerstone of his

republicanism.

Given their republican credentials, De Re Publica and De Legibus will be the focus of the

following analysis. Upon close examination, it becomes apparent that, rather than libertas as

a form of non-domination acting as the operative conceptual ideal in Cicero’s republican-

ism, concordia, along with equity as a form of proportionate equality that depends upon the

recognition of substantive differences of status and power, and the defence of the state

against internal dissent – what Cicero referred to as cum dignitate otium – serve as thefoundation of his ‘republican’ political thought. Liberty, for Cicero, must coexist with

recognition of the dignitas of the ‘best men’ and the auctoritas of the senate.9 Dignitas refers

to the ‘esteem a worthy personality commands’, and presupposes a certain degree of

material wealth (Wirszubski, 1960, pp. 12–3). Thus, while dignitas cannot be reduced to

landownership, only those of high social standing – capable of attaining the highest offices

of the state – were capable of being recognised as men of dignitas. Given the material

foundation of statesmanship, therefore, the ‘great men’ were of the landowning class (but not

all men of the landowning class were ‘great men’).As such, liberty is better understood as

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a form of ‘ordered liberty’ characteristic of a conservative and aristocratic world view.

Liberty isolated from dignitas and auctoritas is licence or anarchy.This form of ordered liberty

is offered as an alternative to the conception of liberty as a form of non-domination or

‘masterlessness’ that Cicero attributes to the democracies of ancient Greece and thepopulism of reformers such as Tiberius and Gaius Gracchus.

Far from representing an elaborate argument in favour of liberty as a form of non-

domination, Cicero’s treatment of liberty is in fact quite ambiguous in De Re Publica. On

the one hand, he does seem to define liberty as a condition that exists in opposition to

slavery. For example, in speaking of Cyrus the Great, he states that while Cyrus may have

been among the wisest and most just of kings, such a form of state is not a desirable form

of government because in it the ‘property of the people’ ( populi res) is ‘administered at the

nod and caprice of one man’ (Cicero, 1928a, I. 44). Unfettered kingship verges on personal

rule which poses the problem of degenerating into the rule of an arbitrary individual will

(dominates), as opposed to rule in the interest of the ‘common weal’. On the other hand,

Cicero attributes a condition of liberty to Greek democracies as opposed to what he

favourably terms a ‘free state’. It is in free states that the res publica – typically translated into

‘the people’s business’, ‘the people’s property’ or ‘the people’s affairs’ and often used by

Cicero to refer to the state – is administered in accordance with the ‘common weal’. 10

Cicero therefore distinguishes the liberty of a ‘free state’ (what contemporary republicans

refer to as a ‘republic’) from the liberty of democracy.11 In presenting the democratic

argument, Cicero states that‘liberty has no dwelling-place in any State except that in which

the people’s power is the greatest’.This is not what Cicero believes, but what he argues the

proponents of democracy believe. By definition, this form of liberty is based on the

principle of an equality of rights for all citizens, for the proponents of democracy claim that

anything less ‘does not deserve the name of liberty’.‘Free states’ such as the Roman republicare not characterised as ‘democratic’ because, while citizens may vote, ‘elect commanders

and officials, are canvassed for their votes, and have bills proposed to them’,‘they have no

share in the governing power, in the deliberative function, or in the courts, over which

selected judges preside, for those privileges are granted on the basis of birth or wealth’. In

a democracy such as Rhodes or Athens, however,‘there is not one of the citizens who [may

not hold the offices of State and take an active part in the government]’ (Cicero, 1928a, I.

47). Liberty is therefore said to be most prevalent in democracies and precludes large

disparities of wealth among the citizenry. Proponents of democracy say that ostentatious

wealth – or the allowance thereof – will result in the ‘cowardly and weak giving way and

bowing down to the pride of wealth’, which paves the way for the rule of one or the few

(Cicero, 1928a, I. 48). But if the people retain their ‘rights’ and become masters of the lawsand of the courts, and retain control over matters of war, peace and ‘international agree-

ments’, as well as of ‘every citizen’s life and property’, no form of government would be

superior in freedom and happiness.12 Only such a popular government – a democracy in

line with Athens – could be considered a ‘commonwealth’, the property of the people.

Having rehearsed the democratic conception of liberty as a form of popular control over

the deliberative functions of the state, Cicero equates this notion of liberty with licentia or

licence.When speaking in his own voice – rather than rehearsing the democratic argument

– he relies on Plato’s caricature of the liberty found in democracies:

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It necessarily follows in such a State that liberty prevails everywhere, to such an extent that not

only are homes one and all without a master, but the vice of anarchy extends even to the

domestic animals,until finally the father fears his son,the son flouts his father,all sense of shame

disappears, and all is so absolutely free that there is no distinction between citizen and alien;the schoolmaster fears and flatters his pupils, and pupils despise their masters; youths take on

the gravity of age, and old men stoop to the games of youth, for fear they may be disliked by

their juniors and seem to them too serious. Under such conditions even the slaves come to

behave with unseemly freedom, wives have the same rights as their husbands, and in the

abundance of liberty even the dogs, the horses, and the asses are so free in their running about

that men must make way for them in the streets (Cicero, 1928a, I. 67; compare Plato, 1997,

562c–563e).

Such is the condition of liberty – licentia – in democracies that all members of the city state‘are

utterly without a master of any kind’ (Cicero, 1928a, I. 67). Such ‘excess liberty’,however,has

the paradoxical and undesirable consequence of creating the conditions for tyranny.

What is interesting about this passage is the extent to which – all embellishments aside

– it casts democratic liberty as a condition that accords a certain degree of freedom to

slaves, women and children. Democracy seems to limit the paternalistic power of the

father over the son; the patriarchal power of the husband over the wife; and even seems

to limit the arbitrary powers of dominium exercised by the dominus or despotes over the

slave. It is worth remembering that Aristotle considered these forms of association to be

non-political in the sense that they pertained to relations of power exercised between

individuals of unequal status (Aristotle, 1984a, I. 1252a24–1253a29). And given that a

political relationship is characterised by the fact of ruling and being ruled in turn, these

forms of non-political power are necessarily arbitrary.The slave is dependent upon the will

of the master; the wife is dependent upon the will of the husband; and the child isdependent upon the will of the father. In this sense, democratic liberty is characterised by

a form of independence from arbitrary power that is enjoyed even by those not consid-

ered to be citizens of the state.13

It may be said that Cicero’s characterisation of libertas as a licentious form of ‘non-

domination’ is meant to apply to democracies, and that a more moderate form of libertas is

the primary characteristic of a republican ‘mixed constitution’ that Cicero is proposing in

the text. Libertas, in other words, is still a form of ‘non-domination’ that is intrinsically

identified with the Roman republic, albeit a form of liberty that is different from that

enjoyed by the Greeks.Yet when we look at his analysis of the historical development of the

Roman republic and his defence of its principles, we see that concordia or concentus, not

libertas, is the predominant characteristic of his republicanism.14

A state, or civitas, is:

made harmonious by agreement among dissimilar elements, brought about by a fair and

reasonable blending together of the upper, middle,and lower classes, just as if they were musical

tones. What the musicians call harmony in song is concord in a State [civitate concordia], the

strongest and best bond of permanent union in any commonwealth; and such concord can

never be brought about without the aid of justice (Cicero, 1928a, II. 69).

The virtues of the mixed constitution reside in the promotion of stability and in a ‘high

degree a sort of equality, which is a thing free men can hardly do without for any

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considerable length of time’.This is because ‘there is no reason for a change when every

citizen is firmly established in his own station’ (Cicero, 1928a, II. 69).15

In this sense, concordia or concentus represents the absence of redistributive measures that

Cicero claims threatens existing social hierarchies and contributes to the instability of therepublic. In Pro Sestio, for example, Cicero (2006, p. 103) approves of noble opposition to

the agrarian law of Tiberius Gracchus on the basis that they ‘saw it as a way of stirring up

discord and judged that the commonwealth would be stripped of its defenders if the rich

were dislodged from their long-time holdings’; the grain dole of Gaius Gracchus is similarly

attacked on the grounds that it would seduce the plebs ‘from the ways of hard work and

become slothful, and they [the nobles] saw that the treasury would be drained dry’. In De

Officiis, Cicero (1991, II. 73), in another critique of Gaius’ corn dole, argues that the first

consideration of any statesman is to ‘see that everyone holds on to what is his, and that

private men are never deprived of their goods by public acts’. Nothing, for Cicero, could

be worse for the republic than an ‘equalization of goods’ due to the fact that ‘political

communities and citizenships were constituted especially so that men could hold on to

what was theirs’ (Cicero, 1991, II. 73). Consequently, those who pursue such populist

measures of redistribution ‘sap the foundations of the constitution’. As such, ‘concord ...

cannot exist when money is taken from some and bestowed upon others’ (Cicero, 1991, II.

78). It is instructive that the consul Lucius Opimius, one of the ‘eminent men’ whose exile

at the hands of the Roman people Cicero laments at the beginning of De Re Publica,

celebrated his defeat of the supporters of Gaius Marius by erecting a temple to Concordia

– the goddess of concord – in the Aventine (Ungern-Sternberg, 2004, p. 94).

Equity, in contrast and opposition to equality (aequabilitas), represents the ‘fair’ distribu-

tion of property, goods and offices on the basis of rank or dignitas.16 In this sense, equity

resembles Aristotle’s notion of proportionate equality, in which ‘giving each their due’ isoriented to the distribution of goods and offices in a manner that is ‘proportionate’ to a

citizen’s contribution to the functioning of the polis. In the Politics, Aristotle (1984a, III.

1280a7–1280a21) writes:

Thus it is thought that justice is equality; and so it is, but not for all persons, only for those that

are equal. Inequality also is thought to be just; and so it is, but not for all, only for the unequal.

... If persons originally come together and form an association for the sake of property, then

they share in the state in proportion to their ownership of property.17

Those citizens who, by virtue of their noble birth, their possession of the requisite amount

of ‘external goods’ (i.e. property) and their virtuous living or ‘habituation’, contribute more

to the functioning of the polis – the ‘parts’ – will possess greater political rights than thosewho do not – and cannot – contribute as much to the functioning of the polis – the

‘conditions’. From Aristotle’s perspective, this is meant to grant a certain distribution of

political rights while maintaining the power and prestige of the aristocracy. Cicero has

something similar in mind. While legal rights – in the form of access to the law – are

distributed on the basis of equality, property and political rights are distributed on the basis

of equity. All freemen have access to the courts and therefore to the Roman Law, but only

citizens possess political rights. But even within the rubric of citizenship, those citizens of

dignitas will enjoy greater voting rights and exclusive rights to run for office. Cicero (1928a,

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II. 39) attributes to Servius Tullius the wise innovation of ensuring that the ‘greatest number

of votes belonged,not to the common people,but to the rich, and put into effect the principle

which ought always to be adhered to in the commonwealth,that the greatest number should

not have the greatest power’.18 This‘fair’distribution of honours and offices is the ‘partnership’that forms the basis of the res publica (Asmis, 2004, pp. 584–6). Concord and equity are

mutually supportive of each other, and are equally necessary for the maintenance of the

aristocratic order: the ‘balance of rights, duties, and functions, so that the magistrates have

enough power, the counsels of the eminent citizens enough influence, and the people enough

liberty’(Cicero, 1928a, II. 58).Elizabeth Asmis (2005) argues that the elements of the Roman

constitution that Cicero believes make it the best type of constitution are the principles of

cooperation based on just recognition of the rights of others and rule by wise leaders. Liberty

as ‘non-domination’ must be understood and exercised within this context of constitutional

balance. In contrast,‘popular’ government, of the kind representative of the Gracchi’s politics

(not to be confused with Cicero’s characterisation of ‘popular’ government as a Roman

alternative to democracy as outlined in De Re Publica),19 results in the establishment of an

equality (aequabilitas) that is itself inequitable (iniqua), regardless of the justice or moderation

with which popular government is ruled, because such popular government ‘allows no

distinctions in rank [ gradus dignitatis]’ (Cicero, 1928a, I. 43).

Constitutionalism and Natural Law in Cicero’s De LegibusHaving been presented with a hierarchical and authoritarian20 conception of liberty in De

Re Publica, we are left with De Legibus to fill in the blanks regarding the significance of

liberty as non-domination. However, the focal point of De Legibus is not libertas, but the

metaphysical underpinnings of the civil laws of the ideal republic: Cicero’s notions of justice

and natural law. This is Cicero at his most Platonic, for while civic laws are relative to a

particular people – incorporating both the civil law produced by legislative bodies and

customs that are the product of historical practice – natural law is universal.The essence of

the matter is that civil laws and customs that are not in conformity with natural law are not

considered to be laws at all (just as ‘pure’ constitutions are not considered to be ‘states’ as

stated in De Re Publica).What is striking about De Legibus is the extent to which Cicero

recognises the sovereign power of the popular assemblies, only to inhibit significantly their

lawmaking power by embedding the fundamental laws and principles of the Roman

republican constitution within an absolutist and unchanging conception of natural law:

What of the many deadly, the many pestilential statutes which nations put in force? These no

more deserve to be called laws than the rules of a band of robbers might pass in their assembly.For if ignorant and unskillful men have prescribed deadly poisons instead of healing drugs,

these cannot possibly be called physicians’ prescriptions; neither in a nation can a statute of any

sort be called a law, even though the nation, in spite of its being a ruinous regulation, has

accepted it (Cicero, 1928b, II. 13).

According to Cicero (1928b, II. 13),‘Law is the distinction between things just and unjust,

made in agreement with that primal and most ancient of all things, Nature; and in

conformity to Nature’s standard are framed those human laws which inflict punishment

upon the wicked but defend and protect the good’.21

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Cicero’s task is not merely to defend the laws and magistracies of the Roman republic

as it existed in the so-called ‘golden age’ between the fall of the Decemvirs and the rise of

the aristocratic factionalism that pitted optimates against populares, but to root them in an

unchanging foundation of ‘natural law’ as a means of conserving a particular politicalarrangement that is the constitutional carapace of the aristocratic rule of the ‘best men’.22

In this sense, it entails a ‘concept of a pre-political moral order that supplies the rules

incorporated’ in Cicero’s idea of constitutional government; natural law informs the ‘higher

order constitutional norms’ and ‘the limits of popular legislation and the positive legal

system’ (Straumann, 2011, p. 290).23 While this is meant to extinguish any ‘arbitrary’ power

emerging out of the popular assemblies, the ambiguous character of natural law as defined

by Cicero – in particular, its normative status pertaining to the ‘good’ and its relationship to

the defence of private property – opens up the possibility of a kind of arbitrary aristocratic

power in its own right: in so far as the constitution is unwritten, and the metaphysics of

natural law trump the civil law emanating from the popular assemblies,‘constitutionalism’

becomes a vehicle for the preservation of aristocratic power against the ‘arbitrariness’ of

popular sovereignty.

These conceptual innovations regarding the character of republican constitutionalism

were intended as a powerful defence against the use of the tribunate by populares like the

Gracchi to enact significant social reforms that would alter the balance of power in Roman

society and affect the traditional composition of republican institutions.This is significant

because Cicero (1928b, III. 24) defends the institution of the tribunate from Quintus, who

proposes its abolition, on the grounds that the power of the Roman people ‘is sometimes

milder in practice because there is a leader to control it than if there were none’.When the

senate agreed to the creation of the tribunes, argues Cicero (1928b, III. 24),‘conflict ceased,

rebellion was at an end, and a measure of compromise was discovered which made the morehumble believe that they were accorded equality with the nobility; and such a compromise

was the only salvation of the State’. In a revealing passage, Cicero states that if the tribunes

were not created as a response to plebeian discontent, either monarchy had to be

re-established,‘or else that real liberty, not a pretence of it, had to be given to the common

people’. Fortunately, the tribunate served the purpose of establishing an ordered liberty, for

‘this liberty has been granted in such a manner that the people were induced by many

excellent provisions to yield to the authority of the nobles’ (Cicero, 1928b, III. 25).

Having supported Pompey’s reintroduction of the tribunate, and being acutely aware of

the role that the tribunes played in weakening the power of the optimates, Cicero then needs

to ensure that these offices of the people are not used in ways that diminish aristocratic

power. His conception of natural law serves this purpose. For example, in Book II, Ciceromakes reference to the role of the augur in advising the repeal of ‘wicked and unjust

statutes’ that contradict the principles of natural law.The examples are the Titian Law of

Sextus Titius (99 bce) and the Livian laws of Marcus Livius Drusus (91 bce). Both of these

examples represented agrarian and grain laws that sought to redistribute land away from the

aristocracy and alleviate the plight of the poor by fixing the cost of grain – characteristic

of the populares. Both laws were annulled by the senate on the grounds that, at least in

Cicero’s (1928b, II. 13–4) view, they were not true laws but rather resembled ‘the rules a

band of robbers might pass in their assembly’. In this sense, Cicero is ‘effectively replacing

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any distributive aspects of political justice with rectificatory ones, making the justice and

constitutionality of government dependent on its respect for existing, ultimately pre-

political property distribution and constitutionally restraining its power to redistribute’

(Straumann, 2011, p. 291).Other measures aside from Cicero’s constitutionalism are introduced as a means of

securing the authority of the aristocracy. For example, the repeal of the secret ballot is one

measure that is addressed at length in De Legibus. The secret ballot was implemented

through a series of popular reforms introduced by populist tribunes in the latter half of the

second century bce.The first stage pertained to elections for magistrates and was introduced

by Aulus Gabinius in 139; the second measure, introduced by Lucius Cassius in 137 granted

the secret ballot for elections during popular trials; the third measure, passed by Gaius

Papirius Carbo in 131, introduced the secret ballot into the popular assemblies that voted

on the legislation presented by magistrates; and finally, a secret ballot for treason trials was

introduced by Gaius Coelius in 107 bce. Such reforms were considered a significant blow

to the optimates.As Quintus remarks in De Legibus,‘everyone knows that laws which provide

a secret ballot have deprived the aristocracy of all its influence’ (Cicero, 1928b, III. 34). As

such, the repeal of the secret ballot poses a threat to the independence of lower-class voters.

Although Cicero (1928b, III. 33) does not advocate the total repeal of the secret ballot, he

undermines its strength and sanctity by stipulating that ballots ‘shall not be concealed from

citizens of high rank, and shall be free to the common people ’ (emphasis in original).This opens

the door to a kind of ‘dependency’ that republicans in the early modern period used as a

means to exclude people from attaining the franchise. During the debates at Putney Church

in England in 1647, for example, Henry Ireton urged a restriction of the franchise in order

to exclude servants and alms-takers on the grounds that they existed in a condition of

dependence on their masters. As Skinner (2006, p. 162) points out, Ireton ‘explicitly insiststhat the franchise should be confined to “free men”, and he states that by “free men” he

means those who are “not given up to the wills of others” and are thus “freed from

dependence” ’. Maximilian Petty, concurring with Ireton, accepts this exclusion, arguing

that it is due to the fact that apprentices and servants ‘depend upon the will of other men’

and are thereby ‘included in their masters’ (Petty, in Woodhouse, 1974, p. 83). By repealing

the secret ballot, Cicero (1928b, III. 38) is granting ‘freedom to the people in such a way as

to ensure that the aristocracy shall have great influence and the opportunity to use it’. In

this way, formal freedom is allowed to reside alongside the informal influence, power and

authority of the aristocracy in a way that, while not resembling a form of slavery or

‘domination’ (in the literal Latin sense of being the property of another), certainly under-

mines the notion of liberty as a form of independence.

ConclusionIn relation to the social conflicts of the late republican period, Cicero sided with the

optimates against the populares’ attempts to redress the significant social and economic

inequalities of Rome that diluted the libertas of the lower classes – the lower-order

plebeians, the proletariat and the peasantry. In his oratory, in his political theory and in his

actions as consul, he consistently branded populist reformers as security threats to the

republic.24 Such a characterisation is not simple rhetoric. As Cicero’s handling of the

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Catiline conspiracy demonstrates, and as Wirszubski’s (1960) study confirms, defenders of

republican libertas like him were content to invoke the senatus consultum ultimum to override

the rule of law in order to eliminate populist threats to senatorial auctoritas in the republican

constitution. When speaking of Roman libertas, we must take into account its contestedmeaning by situating it within the socio-political conflicts of the period. As Brunt (1988,

p. 327) writes, there is no one form of Roman liberty; and when it comes to the work of

‘republican’ writers like Cicero, we must ‘reject the assumption’ that he ‘speaks for “the

Roman” ’.

One of the problems of the ‘republican’ interpretation of liberty is that, despite its

emphasis on the significance of slavery in its definition of liberty as non-domination, it

tends to conceptualise liberty at a high level of abstraction, neglecting to take into account

its contested meaning.The republican narrative remains caught within a framework that pits

republican liberty as ‘non-domination’ against a negative liberty defined as ‘non-

interference’.Absent from this narrative is a recognition of the extent to which liberty as a

form of non-domination itself is prone to contestation by actors who would identify

themselves as ‘republicans’.This article has argued that any characterisation of Cicero as a

staunch proponent of constitutionalism and the rule of law as aspects of a conception of

liberty as ‘non-domination’ needs to take into account the fact that his notion of libertas was

subsumed to an overriding concern with concordia or concentus that privileged the mainte-

nance of senatorial auctoritas; and his constitutionalism rested upon the foundation of natural

law that represented little more than an ideological bulwark against popular social and

political change. In general, his deference to the rule of law was surpassed only by his

deference to senatorial auctoritas and his opposition to social reform.25 In a sense, Cicero’s

lengthy discussion of the purpose of his law against the secret ballot encapsulates the

grander political project of the Republic and the Laws: ‘our law grants the appearance of liberty, preserves the influence of the aristocracy, and removes the causes of dispute between

the classes’ (Cicero, 1928b, III. 39).

( Accepted : 1 October 2012)

About the Author

Geoff Kennedy is a Lecturer in Politics at the School of Government and International Affairs at Durham University.

His current research interests are in republican political thought, Marxism, neo-liberalism and seventeenth-century

English political thought. Geoff Kennedy, School of Government and International Affairs, Durham University, Al

Qasimi Building, Elvet Hill Road, Durham, County Durham DH1 3TU, UK; email: [email protected]

NotesI would like to thank Ellen Meiksins Wood and the three anonymous reviewers for their constructive feedback on various drafts of this article.

1 For a different view of the tribunate, see Maddox, 2002; Wirszubski, 1960.2 Whereas Pettit rejects Berlin’s dichotomy, Skinner (1984) initially argues that classical republicans adhered to a negative conception

of liberty.3 Pettit is more explicit on this matter than is Skinner. It is also the case that most republicans throughout the early modern period

accepted the anti-democratic narrative of Athens. See Roberts, 1997.4 Skinner (1998) refers to Wirszubski nine times,but of these nine references,none of them goes beyond the introductory chapter.

Pettit (1997) confines his references to the first chapter with the exception of one reference to page 159.

5 Optimates refers to the ‘best men’ who identified with and sought to preserve the dominance of senatorial authority within therepublican constitution. They are often characterised as conservatives in this manner given the extent to which they espoused

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hierarchy, order and the preservation of property r ights which buttressed vast disparities of wealth and power that divided the largelandowning class (of which they were members) from everyone else in Roman society. In contrast, the populares refers toaristocratic reformers who challenged the authority of the senate in their attempts to alleviate the social problems that theybelieved to be responsible for the deterioration of the republic.

6 See Brunt, 1971; Taylor, 1962. For more recent overviews, see Robb, 2010; Ungern-Sternberg, 2004; Wiseman, 1994.7 Brunt (1988) challenges the simple dichotomy between ‘Roman’ and ‘Greek’ conceptions of liberty by pointing out that in bothRome and Greece notions of ‘freedom’ spanned a spectrum that encompassed both ‘positive’and ‘negative’conceptions of liberty;

and he rejects Constant’s unhelpful distinction between ‘ancient’ and ‘modern’ forms of liberty. Interestingly, it becomes clear through the course of the essay that most classicists – contra the tendency among political theorists – consider Greek conceptionsof freedom to privilege a ‘negative’ conception of liberty.

8 Viroli (2002) mentions Cicero five times, and one of these instances – from Pro Cluentio – is used to elaborate the Roman idealof liberty.The other references to Cicero demonstrate that liberalism’s concern for the protection of private property stems fromCicero’s De Officiis, and that Roman republicanism is compatible with civic nationalism.A remaining reference to Cicero is in facta reference to the work of Renaissance writers who shared Cicero’s belief in the ‘common good’. Maynor (2003) contains onlyfive references to Cicero but no analysis of Cicero’s work (or that of any other Roman writer).

9 For a discussion on the relationship between dignitas and auctoritas, see Wood, 1988, pp. 149–51.10 Both Wood (1988, pp. 123–8) and Asmis (2004) provide insightful discussions of Cicero’s definition of res publica and civitas as

forms of ‘state’. Both argue that for Cicero the term civitas is closer in definition to the Greek politeia, as opposed to the moreambiguous notion of a polis which may simply connote a form of urban dwelling as opposed to a form of political organisation.Wood emphasises the institutional and constitutional aspect of civitas as against the ‘normative and emotive’ term of res publica.Asmis emphasises the abstract and general nature of civitas as against the patriotic meaning of res publica. Both terms refer to‘state’

in varying degrees of abstraction. Schofield (1995) discusses the relationship between the res publica and the res populi , whichilluminates the reasoning behind Cicero’s dismissal of democracy as a corrupt form of ‘state’.

11 The term used by Cicero is a state (civitatibus) ‘where everyone is ostensibly free’ (Cicero, 1928a, I. 47).12 This last point is common among the arguments of anti-democrats. For an alternative depiction of the status of property and

individual liberty under the Greek democracies, see Edge, 2009; Wood, 1989.

13 This is not to say they had rights of democratic participation.

14 Asmis (2005) argues that Cicero’s emphasis on concord, self-restraint and justice in the Roman constitution is framed as a responseto Polybius.

15 ‘Equality’ here refers to the universal distribution of juridical rights (not political or economic rights) among the citizenry.This‘high degree’ of equality is, in comparison to Athenian democracy, the bare minimum of any condition of freedom. This

interpretation of Cicero’s usage of ‘equality’ rather than ‘equity’ is supported by Asmis (2005, p. 403).16 Wirszubski (1960, p.36) defines dignitas as a form of personal ‘worthiness’ that‘attaches to a man permanently, and devolves upon

his descendants’.17 See Aristotle, 1984b,V. 1131a22–1131b14. For an account of the ar istocratic nature of Aristotle’s conception of proportionate

equality, and its opposition to the democratic conception of numerical equality, see Wood and Wood, 1978.

18 This is not to say that wealth is the sole or even primary basis for the distribution of offices and honours.Virtue, and adherence

to the ‘gentlemanly ideal’, are also necessary. See Wood, 1988, pp. 100–4.19 Asmis (2004) demonstrates Cicero’s use of popularis and populari potestas to refer to the democratic rule of the people (as opposed

to kingship or aristocracy) and his use of res populi to refer to the ‘property of the people’that forms the popular basis of the Romanstate.

20 ‘Authoritarian’ in the sense that liberty must recognise the auctoritas of the senate and the dignitas of the ‘best men’ as opposed tothe ‘masterlessness’ of democratic liberty.

21 For a discussion of Cicero’s conception of natural law, see Asmis, 2008.

22 This interpretation finds support in Wood (1988) and Lintott (1999). Some scholars have noted that Cicero innovated on theexisting Roman constitution through the establishment of the rector civitatis or moderator rei publicae .Articulated in De Republica butabsent in De Legibus the ‘rector’ or ‘moderator’ is said to refer to a charismatic leader whose role cannot be reduced to anyconstitutionally defined office. For more on this, see Asmis, 2005; Marquez, 2011.

23 Against Asmis (2005),Straumann (2011) argues that Cicero’s legal code articulated in De Legibus represents a codification of naturallaw.

24 The exception is his moderate praise for the Gracchi in his speech against the agrarian laws made to the popular assembly (De Lege Agraria Oratio Secunda in Cicero, 1930). His most polemical treatment of the populares or ‘men of the people’ is found in ProSestius (Cicero, 2006), where he brands the populares as threats to the republic.The speech argues that the populares are not popular at all; rather,the ‘best sort of men’such as Cicero,who side with the traditional‘republican’constitution – in particular,the primaryrole granted to the senate within that constitution – are the real ‘popular’ men of the republic.

25 Any political change Cicero articulated in the Republic and the Laws was, according to Lintott (1999, pp.214–32), an anachronisticreassertion of optimate principles designed to reinforce aristocratic power.

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Princeton University Press, pp. ••–••.Aristotle (1984b)‘Nichomachean Ethics’, in J. Barnes (ed.), CompleteWorks of Aristotle,Volume 2: The Revised OxfordTranslation.

Princeton NJ: Princeton University Press, pp. ••–••.Asmis, E. (2004) ‘The State as a Partnership: Cicero’s Definition of Res Publica in His Work On the State ’, History of Political

Thought , 25 (4), 569–99.

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Asmis, E. (2008) ‘Cicero on Natural Law and the Laws of the State’, Classical Antiquity, 27 (1), 1–33.Berlin, I. (1958) Two Concepts of Liberty. Oxford: Clarendon Press.

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pp. ••–••.Cicero, M.T. (1928a) De Re Publica, Loeb Library edition. Cambridge MA: Harvard University Press.Cicero, M.T. (1928b) De Legibus, Loeb Library edition. Cambridge MA: Harvard University Press.Cicero, M.T. (1930) Orations. De Lege Agraria, trans. J. H. Freese, Loeb Library edition. Cambridge MA: Harvard University

Press.Cicero, M.T. (1991) On Duties, ed. M.T. Griffin and E. M. Atkins. Cambridge: Cambridge University Press.Cicero, M.T. (2006) Pro Sestio, trans. R. A. Kaster. Oxford: Clarendon Press.Edge, M. (2009) ‘Athens and the Spectrum of Liberty’, History of Political Thought , 30 (1), 1–45.Lintott, A. (1999) The Constitution of the Roman Republic . Oxford: Oxford University Press.Maddox, G. (2002) ‘The Limits of Neo-Roman Liberty’, History of Political Thought , 23 (3), 418–31.Marquez, X. (2011) ‘Cicero and the Stability of States’, History of Political Thought , 32 (3), 397–423.Maynor, J.W. (2003) Republicanism in the Modern World . Cambridge: Polity Press.Pettit, P. (1997) Republicanism:A Theory of Freedom and Government . Oxford: Oxford University Press.Plato (1997) ‘Republic’, in J. M. Cooper and D. S. Hutchinson (eds), Plato: Complete Works. Indianapolis IN: Hackett

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Skinner, Q. (1993) ‘Machiavelli’s Discorsi and the Pre-humanist Origins of Republican Ideas’, in G. Bock, Q. Skinner andM. Viroli (eds), Machiavelli and Republicanism. Cambridge MA: Cambridge University Press, pp. ••–••.

Skinner, Q. (1998) Liberty before Liberalism. Cambridge MA: Cambridge University Press.Skinner, Q. (2002) ‘Classical Liberty and the Coming of the English Civil War’, in M. van Gelderen and Q. Skinner (eds),

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Skinner, Q. (2006) ‘Rethinking Political Liberty’, History Workshop Journal , 61 (1), 156–70.Straumann, B. (2011) ‘Constitutional Thought in the Late Roman Republic’, History of Political Thought , 32 (2), 280–92.Taylor, L. R. (1962) ‘Forerunners of the Gracchi’, Journal of Roman Studies, 52 (1–2), 19–27.Ungern-Sternberg, J. (2004) ‘The Crisis of the Republic’, in H. I. Flower (ed.), The Cambridge Companion to the Roman

Republic . Cambridge MA: Cambridge University Press, pp. ••–••.Viroli, M. (2002) Republicanism. New York: Hill and Wang.Wirszubski,C. (1960) Libertas as a Political Idea at Rome during the Late Republic and Early Principate . Cambridge MA: Cambridge

University Press.Wiseman, T. P. (1994) ‘The Senate and the Populares, 69–60 BC’, in J. A. Cook and A. Lintott (eds), The Cambridge Ancient

History:The Last Age of the Roman Republic, 146–43 BC. Cambridge MA: Cambridge University Press, pp. ••–••.Wood, E. M. (1989) Peasant-Citizen and Slave:The Foundations of Athenian Democracy. London: Verso.Wood, E. M. and Wood, N. (1978) Class Ideology and Ancient Political Theory: Socrates, Plato, and Aristotle in Social Context .

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Click on the Add note to text icon in the


Type instruction on what should be changed

regarding the text into the yellow box that

a ears.

4. Add sticky note Tool – for making notes at

specific points in the text.

Marks a point in the proof where a comment

needs to be highlighted.

How to use it

Click on the Add sticky note icon in the


Click at the point in the proof where the comment

should be inserted.

Type the comment into the yellow box that

appears.

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USING e-ANNOTATION TOOLS FOR ELECTRONIC PROOF CORRECTION

For further information on how to annotate proofs, click on the Help menu to reveal a list of further options:

5. Attach File Tool – for inserting large amounts of

text or replacement figures.

Inserts an icon linking to the attached file in the

appropriate pace in the text.

How to use it

Click on the Attach File icon in the Annotations

section.

Click on the proof to where you’d like the attached

file to be linked.

Select the file to be attached from your computer

or network.

Select the colour and type of icon that will appear

in the proof. Click OK.

6. Add stamp Tool – for approving a proof if no

corrections are required.

Inserts a selected stamp onto an appropriate

place in the proof.

How to use it

Click on the Add stamp icon in the Annotations

section.

Select the stamp you want to use. (The Approved

stamp is usually available directly in the menu that

appears).

Click on the proof where you’d like the stamp to

appear. (Where a proof is to be approved as it is,

this would normally be on the first page).

7. Drawing Markups Tools – for drawing shapes, lines and freeform

annotations on proofs and commenting on these marks. Allows shapes, lines and freeform annotations to be drawn on proofs and for

comment to be made on these marks..

How to use it

Click on one of the shapes in the Drawing

Markups section.

Click on the proof at the relevant point and

draw the selected shape with the cursor.

To add a comment to the drawn shape,

move the cursor over the shape until an

arrowhead appears.

Double click on the shape and type any

text in the red box that appears.

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