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Contents 2 The Origins of Republican Legal Theory 6 3 Republican Influences on the French and 10 Republicanism, Liberalism and the Law 77 11 Basic Elements of Legislative Structure 96 1

Republican Legal Theory The History, Constitution and Purposes

of Law in a Free State

M.N.S Sellers

Republican Legal Theory

Also by M.N.S Sellers

AMERICAN REPUBLICANISM: Roman Ideology in the United States Constitution

THE SACRED FIRE OF LIBERTY: Republicanism,

Liberalism and the Law

AN ETHICAL EDUCATION: Community and Morality in the

Multicultural University (editor)

THE NEW WORLD ORDER: Sovereignty, Human Rights

and the Self-Determination of Peoples (editor)

Republican Legal Theory

The History, Constitution and Purposes

of Law in a Free State

M.N.S Sellers

Regents Professor of the University System of Maryland and

Director of the Center for International and Comparative Law

School of Law

University of Baltimore

90 Tottenham Court Road, London W1T 4LP

Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages The author has asserted his right to be identified as the

author of this work in accordance with the Copyright, Designs and Patents Act 1988

First published 2003 by

PALGRAVE MACMILLAN

Houndmills, Basingstoke, Hampshire RG21 6XS and

175 Fifth Avenue, New York, N.Y 10010

Companies and representatives throughout the world

PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St Martin’s Press, LLC and of Palgrave Macmillan Ltd Macmillan® is a registered trademark in the United States, United Kingdom and other countries Palgrave is a registered trademark in the European Union and other countries

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A catalogue record for this book is available from the British Library

A catalog record for this book is available from the Library of Congress

Printed and bound in Great Britain by

Antony Rowe Ltd, Chippenham and Eastbourne

This book is dedicated to Nicholas Sellers on the occasion of his seventieth birthday

In primisque hominis est propria veri inquisitio atque investigatio.

Ergo unum debet esse omnibus propositum, ut eadem sit utilitas unius cuiusque et universorum; quam si ad se quisque rapiet, dissolvetur omnis humana consortio

M Tullius Cicero, de officiis, III.vi.26

Omnino qui rei publicae praefuturi sunt, duo Platonis praecepta teneant, unum,

ut utilitatem civium sic tueantur, ut, quaecumque agunt, ad eam referant obliti commodorum suorum, alterum, ut totum corpus rei publicae curent, ne, dum partem aliquam tuentur, reliquas deserant

M Tullius Cicero, de officiis, I.xxv.85

Contents

2 The Origins of Republican Legal Theory 6

3 Republican Influences on the French and

10 Republicanism, Liberalism and the Law 77

11 Basic Elements of Legislative Structure 96

12 History, Liberty and Comparative Law 99

13 Legal Historians and Social Change 102

14 Republican Government in the United States of America 106

15 Republican Principles in International Law 120

16 Conclusion 139

Preface

Republican legal theory is not new, not complicated and not very controversial,once it is understood; but neither is it very well known, to most lawyers andpoliticians Republican doctrines, institutions and attitudes dominate thepolitical and legal structures of North America and Western Europe, andrecently also of South America and Eastern Europe, with growing influence

in Asia and Africa, but the theoretical coherence and republican nature ofmost such political and legal advances go unremarked and unexamined.Many people do not know what republicanism is (even as they pursue it)and avoid using the word, or use it in some partisan sense, peculiar to theirown national politics and local situation This book grew out of my observationthat political liberty began with the self-consciously republican reforms ofthe seventeenth and eighteenth centuries, my belief that republican govern-ment has vastly improved the human condition since then, and my convictionthat deliberately and reflectively republican law and politics will advancethe public good more effectively once republican history and purposes arefully explained and recognized by their beneficiaries

Legal and political systems fall into two broad categories: those that workfor the common good of the people and those that do not The first are

republics in the word’s broadest sense (in that they serve the res publica),

whatever their actual constitutions Most states claim to be republics in thissense, by serving the common good, but many are not Republican legaltheory works out which laws and what constitution will serve the commongood best The broad outlines of republican government have been known(as the eighteenth-century republican John Adams observed) since “theneighing of the horse of Darius”, but seldom fully implemented The funda-mental requirements of republican government include: popular sovereignty,the rule of law, a deliberative senate, a democratic popular assembly, electedexecutives, an independent judiciary, and a general system of checks andbalances, to protect public liberty against corruption and to safeguard theequal individual rights of all citizens against each other and against thestate Together these institutions secure the republican virtues in government,which have introduced a new era of justice into politics, wherever they haveprevailed

Republican principles and virtues have advanced in recent years, but notusually under that name Republican legal theory enjoyed a brief vogue inAmerican law schools in the mid-1980s, when law professors opposed toPresident Ronald Reagan’s constitutional “originalism” seized on the UnitedStates Constitution’s republican principles as a counterweight to (what they

Preface ix

criticized as) America’s dominant “liberal” ideology But academic lawyers

of the left, who had clutched at republican doctrine to support judicialactivism and local democracy, soon found its reliance on checks and balancesand the rule of law inconvenient Academic lawyers of the right, for whomrepublicanism now evoked their opponents’ recent tactics, were happy tosee the concept dropped, as a possible threat to their market-orientedconvictions Both sides in the shallow academic culture wars hadapproached republican doctrine in the spirit of litigants, quarrying historyfor partisan advantage, without real interest in learning from the past orunderstanding republican legal theory for its own sake This discreditedrepublican ideas for many lawyers, put off by this partisanship, who mighthave benefitted from a better understanding of republican legal institutions Lawyers, like all thoughtful people, should study republican legal theoryfor two primary reasons: first, because republican principles have formedthe central institutions of Western liberal democracy, and second, becausethey provide the only true, correct, and just way of viewing the law Law

and government should serve the common good of the people The common good of the people will be found best through the checks and balances of the republican form of government All law does claim to serve justice, and

to do so, must take the common good of the people properly into account.

Most people, when given the opportunity, have embraced these truths Themarch of liberation over the past four centuries has followed this republicanpath This book will try to make the way a little clearer, by explaining whatrepublican legal doctrine is, where it came from, why it is useful, and how itmight be improved to serve the common good of the people better, withgreater liberty and justice for all

Most of the discourses that appear in this book repeat or develop remarksmade earlier in articles and public talks, some of them already published:Chapter 1 was published as “Republican philosophy of law” in C.B Gray

(ed.), The Philosophy of Law: An Encyclopedia (1999); Chapter 2 as “Republicanism (philosophical aspects)” in the International Encyclopedia of the Social and

Behavioral Sciences (2001); Chapter 3 as “The Roman republic and the French

and American revolutions” in H.I Flower (ed.), The Cambridge Companion to

the Roman Republic (2002); Chapter 4 as “Republican legal systems” in

R Dreier, C Faralli and V.S Nersessiants (eds), Law and Politics Between

Nature and History (1998); Chapter 5 as “Republican impartiality” in 11 Oxford Journal of Legal Studies (1991); Chapter 6 as “Republican authority” in

5 Canadian Journal of Law and Jurisprudence (1992); Chapter 7 as “The actual validity of law” in 37 American Journal of Jurisprudence (1992); Chapter 8 as

“Ideals of public discourse” in J Schonsheck et al (eds), Civility (2003); Chapter 10 as “Republicanism, liberalism and the law” in 86 Kentucky Law

Journal (1997); Chapter 14 as “Republican government in the United States

of America” in N de Araujo, P Messitte, E.G Northfleet and M.N.S Sellers

(eds), Liberty e Liberdade: Justice and the Courts in Brazil and the United States of

x Preface

America (2003); and Chapter 15 as “Republican principles in international

law” in 11 The Connecticut Journal of International Law (1996)

Many people have helped me in preparing this book for publication, Iwould like to thank Joyce Bauguess, Donna Frank, Barbara Jones, Gloria Joyand Martha Kahlert for typing the manuscript Luciana O’Flaherty forediting the final product, and Nadia de Araujo, Paul Cliteur, Harriet Flower,Christopher Gray, Philip Pettit, Jonathan Schonsheck, Jeremy Waldron andCarla Zoethout for reading and criticizing my work My research was funded

by the Academic Council of the United Nations System and the University

of Baltimore Educational Foundation

As ever, my greatest debts are for the patience and encouragement of mywife, Frances Stead Sellers, and of my daughter, Cora Mary Stead Sellers,sources and guardians for me of all those private goods without which thepublic good would have no value I am grateful to my uncle, Nicholas Sellers,

to whom this book is dedicated, for introducing me to the study of law Republican legal theory has set the institutions of government on a course

of progressive improvement over the last four centuries Whenever thechecks and balances of republican government have stood firm, liberty andjustice have advanced When republican forms have been absent, tyrannyand oppression have thrived The great question for lawyers as for all peopleeverywhere has always been: what laws and constitution will best securegovernment for the common good, through a just and stable administration

of justice, with equal concern and respect for all? All laws and governmentsclaim to seek this end, which is their only legitimate purpose Only thosegovernments that actually do so are republican in the best sense of theword “All Men are created equal [and] endowed by their creator with certainunalienable Rights, [and] among these are Life, Liberty, and the Pursuit ofHappiness [It is] to secure these Rights [that] Governments are institutedamong Men, deriving their just Powers from the Consent of the Governed.”Without the republican form of government, liberty and justice will never

be secure

M.N.S SellersHawthorn HallBaltimore

4 July 2002

always serve the common good or res publica of a nation’s people or citizens.

Already in the age of Plato1 and Aristotle,2 reflective persons understood thecommon good of the people to be the only legitimate basis of justice,government and law.3 Few rulers since have dared to deny this fundamentaltruth, and even the most tyrannical governments have attempted, not somuch to refute republican doctrine, as to evade it Rulers often claim to bejust, and assert an obligation to obey the laws that they promulgate, with-out constructing persuasive arguments why anyone should do so The dis-courses collected in this volume consider contemporary legal questionsfrom a republican perspective, seeking to clarify which laws and rulersdeserve obedience, by considering what would constitute a just rule of law

in a legitimate commonwealth or state The questions presented do not somuch concern specific legislation or particular aspects of the public good asthey do the principles that follow from seeking a worthwhile life for all citizens.Republican legal theory considers which legal rules and procedures willrecognize and implement the common good of the people most completely.Everything else should follow from this

The Romans gave republics their name, their purpose of supportingworthwhile lives for all citizens,4 and a catalog of techniques for doing so.This republican constitution or “republican form of government”, as articu-lated by Marcus Tullius Cicero5 and Polybius,6 and imitated by their successors

in Italy, England, America and France, secured government for the commongood through the checks and balances of a mixed constitution, comprising

a sovereign people, an elected executive, a deliberative senate and a lated popular assembly The product of republican government is “liberty”,

regu-by which the Romans meant subjection to public laws made for thecommon good, and not to any other person’s private will or arbitrarypower Popular sovereignty, the deliberative senate and other fundamentals

of the republican constitution prevented the domination of citizens by any

2 Republican Legal Theory

single interest or faction in society Republicans understood justice, libertyand the common good to be essentially related concepts Justice consists inwhatever social arrangements between persons will best secure the commongood of all people Liberty is the status of persons in societies whose socialarrangements are just The common good of the citizens ultimately deter-mines all justice, liberty and the law in a fully republican state

Republican legal theory developed out of the jurisprudential and

constitu-tional legacy of the Roman res publica, as interpreted over two millennia in

Europe and North America Leading republican authors include Marcus TulliusCicero, Niccolò Machiavelli, James Harrington, Algernon Sidney, John Adamsand (more controversially) subsequent self-styled “republican” legislatorssuch as Abraham Lincoln and Charles Renouvier Many important writersoutside the republican tradition also reflect a strong republican influence,including the baron de Montesquieu, Jean-Jacques Rousseau, and ImmanuelKant These eighteenth-century authors illustrate the close connectionbetween republican ideas and the European enlightenment, leading up tothe French and American revolutions

The central concepts of republican legal theory include pursuit of thecommon good through popular sovereignty, liberty, virtue, mixed govern-

ment and the rule of law, linked by a Roman conception of libertas that

defines justice between free people as subjection to no one’s will or interest,but only to general laws approved by the people for the common or “public”good of the community

Republican theorists have usually followed Cicero’s conception of republican

laws and institutions, as set out comprehensively in his treatises de officiis (on duties), de legibus (on the laws) and de re publica (on the republic) Other

fundamental texts include the first ten books of Titus Livius on the history

of Rome, the sixth book of the Histories of Polybius, and much less

import-antly, the works of Aristotle, insofar as they anticipate and justify Romanpractices Of these authors only Cicero primarily concerned himself withlegal institutions, not just in his monographs, but also in letters and orations,

including the widely read Philippicae and speeches against Catiline Cicero

and Livy took the proper province of legislation to be the public interest or

“res publica”, protected by laws established in advance, to avert the improper influence of private self-interest Private interests (“res privata”)

also deserved protection, within their own sphere, as defined by publicdeliberation The republican tradition justified popular sovereignty as

a necessary check against self-interested factions, but only under the guidance

of an infrequently elected legislative council or “senate” Necessary components

of a “republican” constitution on the Roman model include a bicamerallegislature, standing laws and elected magistrates

Constitutional law has always been the central concern of republicanlegal theory, but several other components of the republican legal traditionhave provided judges, legislators and lawyers with standards of virtue and

The central objective for republicans since Cicero has been to revive theliberty, the principles, and the virtues of the Roman republic, while avoidingthe vices and constitutional flaws that led eventually to the tyranny of theemperors and to the tragedy of civil war Cicero had proposed the maintenance

of frequent rotation in office for executive officials, and a strengthenedsenate, to control both the magistrates and the popular assembly Macchiavelli

suggested in his Discorsi sopra la prima deca di Tito Livio that republics thrive

best in poverty and war, which unite citizens in pursuit of the commongood He concluded that wealth and leisure made Rome too corrupt to be

free Harrington agreed in his Commonwealth of Oceana (1656) and

advo-cated limits on landholding, and rotation in office, to maintain the civic

equality necessary for true republican virtue Sidney’s Discourses Concerning

Government (1698) argued that wealth would actually strengthen the republic,

and endorsed representation in the popular assembly to check the excesses

of direct democracy John Adams’ Thoughts on Government (1776) and

Defence of the Constitutions of Government of the United States of America

(1787–1788) also embraced representation, with the added check of a veto

in the chief executive James Madison writing his contribution to The

Feder-alist (1787) under the republican pseudonym of “Publius”, praised the

American republic’s central constitutional reform, which comprehensivelyexcluded direct democracy from any active role in legislation

Despite their different proposals for protecting republican liberty andvirtue, all the main authors in the republican tradition shared a basic con-ception of the constitution and legal order that they sought to revive Thisembraced pursuit of the common good through standing laws, ratified bypopular sovereignty, in a bicameral legislature of educated senate anddemocratic popular assembly, for implementation by elected magistrates.Republicans agreed that unelected kings or any other uncontrolled power inthe constitution would lead to self-interest and corruption Liberty and thecommon good depended on “mixed government” and a “balanced constitu-tion” During the age of European revolution, even many theorists whoremained reluctant to identify themselves as “republican”, neverthelessaccepted aspects of this ideology Montesquieu supported monarchy, whichmade it impossible for him to endorse or even accurately to describe repub-lican government He did, however, embrace the common good and rule of

law in De l’espirit des lois (1748), as well as balanced government, the senate,

and even a (representative) popular assembly Rousseau viewed a sovereign

4 Republican Legal Theory

popular assembly as the essential attribute of legitimate government His

discourse Du contrat social (1762) insisted, as in Rome, on the ratification of

all laws by a general vote of the people Rousseau would have restricted the

senate to a purely executive function Kant proposed in Zum ewigen Frieden

(1795) the creation of an international federation of republican states, toprovide the basis for perpetual peace

Rousseau’s identification of liberty with law, and law with the commongood, repeated the republican formula of Cicero, Machiavelli, Harrington,Sidney and even Montesquieu, who put it into a monarchial context Rousseaudiffered only in his program for realizing republican virtue Republicans,since Harrington, had endorsed representation as a technique for purifyingthe popular will Republicans, since Cicero and Polybius, had praised mixedgovernment as the best control over private passions in public life Rousseau,however, preferred the democratic formula that no law is valid without aplebiscite He attributed this idea of a unitary state to the Spartan kingLycurgus, which reflected his general preference for Spartan equality overrepublican balance – even to the extent of accepting slavery for some tomaintain the liberty and virtue of the rest Montesquieu had also admiredSpartan poverty and virtue Both authors insisted that republican puritycould survive only in small states or cantons, such as Sparta and Geneva.French unicameralism and the Terror under Maximilien Robespierre bothderived in large part from Rousseau’s fascination with the homogeneity,poverty and asceticism of Sparta This has colored the tone of French repub-licanism ever since, and marks the beginning of separate republican traditions

in France and the United States

The republican triumph in the American Civil War represented a rejection

of “Greek” democracy, with its frank reliance on slavery, and a return to theRoman rhetoric of liberty, and to Cicero’s condemnation of servitude as

a violation of natural law American republicans never feared commerce orwealth as the Spartans had, and the new American “Republican” partysought to maximize both, by reinvigorating the common good through

a widened electorate and universal rule of law The Fourteenth Amendment

to the United States Constitution protected the original Constitution’s antee of a “republican form of government” by forbidding the states to denyany person the equal protection of the laws, or to withhold citizenship andits privileges from any persons born in the United States

guar-The strongly republican nature of early American constitutionalismproduced a senate, a bicameral legislature, elected executives, balancedgovernment, popular sovereignty, and broad commitments to the “generalwelfare”, to “liberty” and to the “due process” of law Yet twentiethcentury constitutionalism developed after the Second World War towards

a procedural “liberalism” that endorsed the frank pursuit of private interest by an atomized and unreflective electorate The recent revival ofrepublican legal theory emerged in response to moral dissatisfaction with

institu-of collective objectivity, and seems to some critics to be alarmingly democratic in its reliance on the senate and judiciary Republican checksand balances intentionally frustrate the immediate will of the people, toserve their common good If private desires and personal interests were allthere is to be valued, then the public-spirited self-denial of republican virtuewould be pointlessly self-defeating

anti-Liberal fears of republicanism (and democracy) reflect liberal fears ofgovernment that go back at least as far as the English Revolution of 1688.When they are not virtuous, the people may be dangerous, and even Cicerofeared the tyranny of the mob more than the tyranny of kings Sometimes

in the wake of civil wars, monarchs promise safe and stable government.Rome settled for Augustus Caesar, England for Charles II, and France forNapoléon Bonaparte In each case subjects received guarantees from theirsovereign, which protected the private sphere while ceding public power tothe state Benjamin Constant frankly distinguished the (republican) “liberty

of the ancients”, in his discourse De la liberté des anciens comparée á celle des

modernes (1819), “for which we are no longer fit”, from the (liberal) “liberty

of the moderns”, liberty to pursue ones own private pleasures in peace.Modern liberalism emerged from the older republican tradition, when fullyrepublican law and government no longer seemed attainable

Republican legal theory is deeply imbedded in modern constitutional andlegal thought through the influence of the French and American revolu-tions, and the institutions that they introduced and inspired The Westerndemocracies’ eventual success demonstrates that popular sovereignty mayseek liberty and the common good through the rule of law, checks andbalances, a deliberative senate, and a stable judiciary, without collapsinginto anarchy and corruption The major modern innovation in republicangovernment has been to introduce the principle of representation into thepopular assembly, but other techniques have often been proposed andimplemented, in pursuit of the common good Republican legal theory hastriumphed so completely in the West that its origins are largely forgotten.Most modern legal discourse is in some sense “republican”, because republicantheory is so deeply entrenched in the universal institutions of contemporaryconstitutional government Almost every generation experiences somereturn to republican first principles, and initiates its own new attempts tobuild civic community and a just legal order out of the ruins of one of theworld’s oldest and most persistent legal and political philosophies

equality of material possessions, to protect public liberty (“libertas”) and

avoid Rome’s eventual descent into popular tyranny and military despotism.Republican liberty signifies subjection to the law and to magistrates, acting

for the common good, and never to the private will or domination “dominatio”

of any private master.1

The republic

“Res publica” was the Romans’ own term for their state, its public business,

all public property, and the purposes these served The word notoriouslyevades translation, most often appearing in English as “commonwealth”, orsimply (more recently) “republic” The republican tradition took Rome as itsfirst inspiration, and specifically Rome’s political structure as it evolved afterthe fall of the kings (509 BC), until Caesar’s legions finally establishedhis principate, and subjugated the senate and the people of Rome Self-consciously “republican” political theory began in the years immediatelyfollowing Caesar’s victory, in reaction to his political innovations, and inopposition to his nephew and heir, Gaius Julius Caesar Octavianus (Augustus).Marcus Tullius Cicero and Titus Livius (Livy) constructed the first and mostinfluential comprehensively republican ideology in praise of the old institu-tions, trying to explain how and why the Roman republic had failed Both

The Origins of Republican Legal Theory 7

agreed that republican institutions collapsed when party conflict upsettraditional checks and balances between the senate, the magistrates, and thepeople of Rome

The Greek scholar Polybius had earlier described Rome’s constitutional

balance in his Histories, as it existed in his own time (about 150 BC).Polybius’ sixth book suggests that Rome’s unrivaled success depended on itspolitical mixture of monarchical, aristocratic, and democratic power, inwhich the consuls executed the laws and controlled the army, the senateproposed the laws and controlled the treasury, and the popular assembliespassed the laws and elected all magistrates Several other similar provisionsconfirmed each branch’s control over the others, so that none could actalone, but must cooperate to secure the common good, and limit eachother’s discretionary power Cicero chose the old Roman word “republic” to

translate Plato’s Greek “politeia” In his own dialogue de re publica, written

about 54 BC, Cicero defined the res publica as the property of the people or

“populus”, by which he meant, not just any collection of humans, but

a large group associated in pursuit of a shared sense of justice and their owncommon welfare.2 This famous and frequently repeated definition precededCicero’s more specific prescriptions for his own ideal republican constitution,including a balance of power between the people, the magistrates andsenate, to maintain the rule of law, so that no one serves any master but thecommon good This secures liberty, which is not to have a just king ormaster, Cicero explained, but to have no master at all.3

The republican tradition

Cicero, Livy and the memory of Polybius, supplemented by the writings of

G Sallustius Crispus (“Sallust”), L Mestrius Plutarchus (“Plutarch”), and

P Cornelius Tacitus inaugurated a republican tradition of “liberty” thatfortified principled resistance to demagogues, emperors and kings for thenext two thousand years Niccolò Machiavelli did the most to revive this

republican tradition in Italy, in his Discorsi sopra la prima deca di Tito Livio.

The resistance of the Swiss, various Italian cantons, and the UnitedProvinces of the Netherlands to imperial control added practical models forrepublican liberty, as did the constitutional and theoretical writings ofvarious English authors, in their efforts to restrain or to remove kings duringthe Civil War and “Commonwealth”, the Glorious Revolution, and theextended British controversies over American independence

British authors such as James Harrington in his Commonwealth of Oceana (1656), Algernon Sidney in his Discourses Concerning Government (1698), John Trenchard in Cato’s Letters (1720–1723) and Thomas Gordon in his translations of and Discourses on Tacitus (1728–1731) and on Sallust (1749)

provided a modern gloss on the old republican authors for Frenchand American writers and politicians in the years leading up to American

8 Republican Legal Theory

independence and the French Revolution The baron de Montesquieu in his

Causes de la grandeur des Romains et de leur décadence (1734) and De l’esprit des lois (1748), and Jean-Jacques Rousseau, in his work Contrat Social (1762), also

adopted republican vocabulary and influenced the subsequent republicantradition, particularly in France

The American John Adams in his Defence of the Constitutions of Government

of the United States of America (1787–1788), like James Madison and Alexander

Hamilton in their Federalist essays (1787–1788) clung much more closely to

the republican tradition in defending the United States constitutions thanany French author of the period This reflected the actual development ofAmerican institutions and led to a division between subsequent Anglo-American and French conceptions of republican government Many Frenchreformers came to identify republican government with the unicameral andcentralizing violence of their own revolution, despite the French nation’sreturn to Rome and to American models during France’s own restored(Third) Republic

The French and American revolutions inspired a series of would-be republicsthroughout the world, which gained political power, only to lose interest intheir old political philosophy The decline of classical education obscuredthe works of Cicero and Livy for most politicians and philosophers, andalthough republican institutions survived, “Republican” parties won elec-tions, and states used republican iconography; no one paid much attention

to their origins or meaning To some scholars and politicians republicanismimplied “democracy”, to others “the rule of law”, and to many little morethan the absence of kings, or support for revolution, no matter how it wasrealized

The republican revival

Republican political philosophy remained moribund for most of the twentiethcentury, known only to classicists and to a few historians of ideas Carefulstudies by scholars such as Hans Baron,4 Zera Fink,5 Caroline Robbins,6

J.G.A Pocock,7 Claude Nicolet,8 Gordon Wood9 and Quentin Skinner10

illuminated various periods of earlier republican enthusiasm, which maderepublican models more readily available to scholars and inspired a newinterest in republican legal theory in the period leading up to the bicentennialcelebrations of the French and American Revolutions.11

The United States Constitution institutionalized republican politicalarchitecture, with its senate, its many references to “liberty” and even afederal “guarantee” that every state in the Union would always enjoy

“a republican form of government”.12 This kept republican political principlespermanently available to modern lawyers and judges, for application tomodern cases and controversies The lawyers’ republican ideology offered

a coherent vocabulary for broader discussions about deliberation and political

The Origins of Republican Legal Theory 9

community already current among political philosophers such as JürgenHabermas13 and Michael Sandel.14 Older doctrines of liberalism had sought

to protect liberty from politics, by declaring rights against power Laterliberals, such as John Rawls,15 found themselves forced back to politics or

“political liberalism” to mediate conflicts of rights, and to constructcommon values Republican doctrine solved the problems of liberalism byproviding a meaning and a rationale for liberty, while offering politicalstructures to coordinate public reason in pursuit of the common good.Republican legal theory clarifies the constitution of justice, in pursuit of theearliest, most useful conception of liberty as “freedom from domination”.16

Liberty

The republican conception of liberty as non-domination challenges ThomasHobbes’ later equation of liberty with license, or the unfettered ability to dowhat one wants Republican liberty follows instead from Cicero’s prescriptionfor life without a master Algernon Sidney put it succinctly in a passage of

his Discourses, repeated by John Adams and many others, when he said that

liberty consists only in being subject to no man’s will, and nothing denotes

a slave but a dependence upon the will of another.17 This does not mean thelicense to do as one pleases, which leads to conflict and oppression, butrather (as Sidney explained it) equal subjection to the rule of laws made forthe common good,18 and secured by “dividing and balancing the powers ofgovernment” so that no one or few or many individuals can subvert therepublican purposes for which all governments exist.19

George Washington reiterated this fundamental dependence of liberty onthe republican form of government at his inauguration as the first president

of the United States under the new United States Constitution, when hesaid that the “preservation of the sacred fire of liberty, and the destiny of

the republican model of government, are justly considered as deeply, perhaps as finally, staked on the experiment entrusted to the hands of the

American people”.20 Livy too had insisted (and Sidney repeated) that Romanliberty began with the inauguration of republican government by LuciusBrutus in 509 BC.21 The English “Cato” concluded that the same principles

“of nature and reason that supported liberty at Rome, must support it hereand everywhere”, so that there should never be too much power in any-one’s hands, or “power without a balance”.22

These examples, and many others, illustrate the extent to which therepublican tradition understood “liberty” to require equal citizenship in

a republican state Trenchard and Gordon, writing as “Cato”, reminded theEnglish people that “government executed for the good of all” (and withtheir consent) “is liberty”,23 and produces “justice”.24 Adams clarified this

republican consensus in the first volume of his Defence of the Constitutions of

Government of the United States of America when he traced the republican

10 Republican Legal Theory

tradition of liberty through Aristotle, Livy, Harrington, Sidney, and RichardPrice to their common conclusion that liberty requires “equal laws” made by

“common consent” for the “general interest” or “public good” of the people.25

The common good

The fundamental republican insight that government and laws should servethe common good did not originate in Rome Most governments have madethis claim, which Cicero26 attributed to Plato Plato had argued in his

Politeia that rulers should always serve their subjects’ common interest, or

good.27 Cicero wrote his dialogues de re publica and de legibus to celebrate

and modernize Plato’s works on the state and the laws,28 supplanting Plato’simaginary constitution with more practical institutions, closely modeled onthe form of government actually established in Rome But Cicero gave Platofull credit for the insight that laws should always serve the common welfare

of the state.29 Plato condemned democracy, oligarchy, and tyranny equally

as partisan rule, maintained by violence, without the consent of the people

as a whole.30

Cicero praised Aristotle for having been, like himself, a disciple of Plato inpursuit of the republic.31 Aristotle followed Plato in believing “justice” toconsist in government for the common good and securing liberty againstthe despotism of private interests.32 Like Plato, Aristotle criticized government

in the factional interests of the one, the few or the many as tyrannical, andwrong.33 Better, he suggested, to mix oligarchy, monarchy and democracytogether, as in Sparta, to prevent any one faction from usurping the power

of the state.34 So Aristotle endorsed the sovereignty of the laws,35 to securejustice, “which means the common good of the community as a whole”.36

The arguments of Aristotle and Plato illustrate the extent to which liberty

as government for the common good, secured by checks and balances andlaws, was already a philosophical commonplace before Polybius and Cicerofirst praised the Roman republic When Cicero defined the purpose of thestate as being to create harmony from the disparate interests of all members

of society,37 he simply repeated Aristotle’s earlier commitment to help allsocial groups live happy and worthwhile lives.38 What distinguishes fullyrepublican doctrine from its Academic and Peripatetic antecedents is notcommitment to the common good (which they shared) but rather a morespecific constitutional prescription for securing the republic, through popularsovereignty, elected executives, and an independent senate, deliberating forthe public good

Popular sovereignty

Aristotle himself had conceded that just as a larger body of water will be lesseasily polluted, so many men acting together will usually be more honest

The Origins of Republican Legal Theory 11

than a few.39 Cicero went further to insist, with all Romans of every party in

his day, on the ultimate imperium populi or sovereign power of the people.

Cicero frequently repeated in his speeches to the senate and the people ofRome that without popular sovereignty, there will be no republic.40 Hedenied the possibility of liberty, unless the people hold supreme power.41

Cicero believed that a free people will elect men of virtue (“virtus”), to

pro-tect the common welfare of the state.42 He did not propose that the peopleshould execute the laws themselves,43 but rather that they should defer tothe authority of senators and magistrates, whom they themselves haveselected.44

Machiavelli credited Cicero with the insight that although the peoplemay be ignorant, they are capable of grasping truth, when good men placethe truth before them.45 He thought that this makes the people properguardians of liberty Because the people have less opportunity to usurpdominion, they will strive to free themselves, and prevent domination byothers.46 Machiavelli adopted Cicero’s maxim that the voice of the people

(vox populi) is often the voice of the God (vox dei).47 He argued that so long

as they are guided and regulated by law,48 the people will choose bettermagistrates than princes would.49 Left without regulation, the people wouldfall into confusion, and welcome tyrants to control their warring privateinterests.50

The purpose of republican popular sovereignty is not that the peopleshould govern every day, but rather, as Benjamin Rush suggested in advo-cating American “republican” institutions, that the people should selecttheir own rulers The people must exercise their power on election days, andthen defer to the magistrates that they themselves have chosen.51 JamesHarrington explained the different roles of the senate, the people, and themagistrates, through which the senators debate, the people approve, andthe magistrates execute the laws.52 The people have the authority, as ultimate

“guards of liberty”, to approve all legislation,53 but only after proposal andprevious deliberation by the senate.54

The senate

The Romans always credited their victories and all public achievements

jointly to the senate and the people of Rome (“senatus populusque

Romanus”), so long as their republic survived This Roman bicameralism

remained a central requirement of republican government in Italy and wards, when republicans continued to recognize the concurrent necessityboth of a “senate” and of a regulated popular assembly and criticized theunicameral “democracy” of some Greek city-states Cicero blamed theintemperance of the Greek assemblies for their political troubles.55 He qualified

after-the sovereignty of after-the people with after-the senate’s moral authority (auctoritas)

in pursuit of the common good.56 Harrington quoted Cicero’s oration

12 Republican Legal Theory

against Flaccus to show that democracy had ruined Greece.57 He preferred

the senatus populusque Romanus,58 because it reflected a salutary balancebetween the deliberative senate and decisive people of Rome The senatewould “divide” (or propose) laws, Harrington explained, and the peoplewould choose (or ratify) them, solving the “whole mystery of the common-wealth”, like “two silly girls” dividing a cake.59

Sidney also embraced the formula “senatus censuit, populus jussit” through

which the senate proposed and the people ratified the laws.60 Unicameraldemocracy might be suitable, he explained, in tiny towns like San Marino,

“where a hundred clowns govern a barbarous rock”,61 but the best governmentswill always be “mixed, regulated by law, and directed to the public good”.62

Montesquieu wanted a senate too, exemplifying public virtue, and elected forlife, as in Rome.63 States are ruined, he explained, when people strip the senate

of its powers.64 Even Rousseau, who supposed that the senate would be anexecutive body of elected aristocrats,65 added that nothing should be donewithout the concurrence of both the legislative and the executive powers.66

Rousseau endorsed Rome’s actual constitution, in which the people alwaysratified the laws,67 but adamantly opposed any exercise of executive power bythe people themselves, because they lack the senate’s wisdom and restraint.68

Rousseau’s change in emphasis introduced a diversion into republicanthought that profoundly influenced later republican ideas in France WhileRousseau endorsed the sovereignty of the people (like all republicans) andwanted them guided to secure the common good,69 he never specified theconstitutional provisions for doing so, and explicitly opposed mixed powers

in the legislature.70 Rousseau insisted that the people should always votedirectly and collectively to approve all legislation, without representation,

in person.71 He spoke much less of the senate than of the “general will”, andminimized the senators’ direct role in guiding the votes of the people.72

Rousseau’s Roman populism seemed to imply, or impliedly to tolerate,

a legislative unicameralism very much at odds with the older republicantradition.73 John Adams wrote his defense of the American constitutionsspecifically to counteract this attitude as it developed in France Anne RobertJacques Turgot and Gabriel Bonnot de Mably had endorsed unicamerallegislatures, to express better the will of the “nation”.74 Adams insisted thatonly “the checks and balances of republican governments” could control theministers of state,75 through “a governor, a senate, and a house of representa-tives”.76 He repeated Cicero’s and Harrington’s observation that the Greeksknew no balance, and suffered for it.77 Adams insisted on a republican senate

“consisting of all that is most noble, wealthy, and able in the nation”.78

Representation

Rousseau made less of the senate than most republican authors, and seemed

to denigrate its legislative power, while clinging to other old Roman republican

The Origins of Republican Legal Theory 13

practices, by rejecting representation in the popular assembly.79 The Roman

comitia had controlled and manipulated popular suffrage in many ways, as

Rousseau agreed that they should,80 but the people always acted directly.Every citizen had the right to vote, and no laws passed without publicapproval Rousseau denounced any statute not approved by the people asvoid and not really a “law” at all Like Rush he knew that those who electrepresentatives are only really “sovereign” on election days Rousseaudenounced representation as anti-republican, the product of weakness, andsloth.81

Anglo-American republicans admitted the novelty of representation,which they advanced to purify the voice of the people, and preserve republicandeliberation in large and populous states Adams endorsed representation,the separation of powers, and a legislative veto as modern innovations thatperfect republican government;82 Hamilton added the life tenure of judges

to representation and the separation of powers as necessary improvements

on old republican institutions;83 and James Madison repeated their arguments

to assert that only representative governments can be true republics, by

selecting more virtuous and deliberate legislators, in place of the turbulentmob.84 “The true distinction” Madison believed, between ancient and

modern republics, is “the total exclusion of the people in their collective capacity, from any share in the latter” and not (despite Rousseau) “in the total exclu-

sion of the representatives of the people from the administration of the former”.85

Rome had elected representative tribunes, but the United States shouldnever allow direct democracy of any kind

Representation allowed republics to serve large and prosperous states,where direct democracy would be impracticable Madison hoped that sizewould overcome local interests, which otherwise might have dominated thestate.86 Adams noted that even Turgot’s unicameral “nation” would have to

be representative, in the United States or France, to speak for such largepopulations.87 Harrington had endorsed representation for his republican

“Oceana”, because the “whole nation” would be “too unwieldy” to beassembled.88 Sidney accepted representation to express the will of thepeople,89 and Montesquieu preferred it, because the people themselves arenot suited to discuss the public business, “which is one of the great draw-backs of democracy” Like Madison, Montesquieu thought it safest to shutthe people out of government, except to choose their representatives, onelection day.90

The rule of law

Rousseau’s solitary opposition to representation masked his fundamentalagreement with other republican authors that republics require the rule oflaw, made for the common good, by a regulated popular assembly.91 JohnAdams repeated this republican commitment to law, citing passages from

14 Republican Legal Theory

Sidney, Harrington, Aristotle, and Livy, who all demanded an “imperia

legum” or “empire of laws and not of men”.92 Adams and Harrington bothquoted the observations of Donato Gianotti who divided the whole history

of government into two periods The first “ending with the liberty of Rome”

was government by law (“de jure”), founded on the common good The

second “beginning with the arms of Caesar” was government by some few

men in pursuit of their private interests (“de facto”), an “empire of men and

not of laws”.93

The republican conception of law implies just laws, made by popularsovereignty, for the common good of the people Cicero insisted that such

laws must serve the public welfare “populi utilitas” not the public will “populi

voluntas”,94 because “the votes of fools” cannot alter the natural laws ofjustice.95 The purpose of republican government is to realize the best

“combination of powers in society”, as Adams put it, or whatever “form ofgovernment will compel the formation of good and equal laws, an impartialexecution, and faithful interpretation of them, so that the citizens mayconstantly enjoy the benefit of them, and be sure of their continuance”.96

Adams presented this republican formula to the convention that draftedthe United States Constitution Roman history shows (he suggested) that

“there can be no government of laws without a balance” in the magistrates,

“there can be no balance without three orders” in the legislature, and thateven three orders can never balance each other, unless they are fully separateand independent.97 Harrington identified legislation as the “reason” and

“virtue” of the commonwealth, whose liberty is the “empire of her laws”,98

Sidney died for his belief that there can be no liberty, where the king’s will islaw,99 and Adams concluded that the essence of republican governmentmust be the guarantee that “all men, rich and poor, magistrates andsubjects, officers and people, masters and servants, the first citizen and thelast, are equally subject to the laws”.100

Republican legal theory

Republican philosophy since Cicero has sought to construct a harmony ofinterests and common sense of justice among citizens through the “empire

of laws and not of men” Republican laws draw the line between liberty andlicense, in pursuit of the common good Republican theory seeks to find and

to establish good laws, by discovering the principles and basic structure that

serve the res publica best So although republican philosophy begins, as Thomas Paine put it, by making the “res publica, the public affairs, or the

public good” the object of all government, and “republican government is

no other than government established and conducted for the interest of thepublic”,101 the idea of the “republic” entails a constellation of political struc-tures to secure republican legislation, embedded in two thousand years ofrepublican tradition, derived from Rome

The Origins of Republican Legal Theory 15

The republican commitment to political institutions that protect libertychallenges the later “liberal” flight from politics after the French revolution.Former republicans such as Benjamin Constant hoped, by securing certainrights or liberties, to protect their own private liberty against the state Butrepublican philosophy recognizes the futility of “rights” without power.Republican doctrine offers a political epistemology to discover and toprotect public justice and fundamental human rights Republicans believethat without popular sovereignty, the rule of law, deliberative senators,elected executives, independent judges, a representative popular assembly,and proper checks and balances, the people cannot know or enjoy theirrights and duties to each other, or to the state

The basic desiderata of republican government may appear more (or less)important in different contexts, so that even a monarchy could seem nearly

“republican”, when limited by two independent branches in the legislature,and subject to the rule of law.102 Contemporary republican philosophersadapt republican principles to new circumstances, to protect public liberty

against improper domination (“dominium”) by private interests, or the arbitrary government (“imperium”) of the state.103 What makes such theories repub-lican is their fundamental commitment to the common good, and to the

political structures that support the res publica best Republican legal theory

is a doctrine of freedom and government, or rather of freedom through

government, to secure a shared sense of justice, in pursuit of the commongood.104 Republicans believe that there can be no justice without community,

no liberty without the law

3

Republican Influences on the French and American Revolutions

When George Washington gave his inaugural speech as the first President

of the United States under the new federal Constitution, he asserted that

“the destiny of the republican model of government” was “deeply, perhaps

finally, staked on the experiment entrusted to the hands of the American

People”.1 A new “Senate” would meet on the “Capitol” hill, overlooking the

“Tiber” (formerly “Goose Creek”) river, as in Rome,2 to restore “the sacredfire of liberty” to the western world.3 The vocabulary of eighteenth-centuryrevolution reverberated with purposeful echoes of republican Rome, aspolitical activists self-consciously assumed the Roman mantle James Madisonand Alexander Hamilton, the primary authors and advocates of the UnitedStates Constitution, wrote together pseudonymously as “Publius” to defendtheir creation,4 associating themselves with Publius Valerius Poplicola,founder and first consul of the Roman republic.5 Camille Desmoulins attributedthe French Revolution to Cicero’s ideal of Roman politics, imbibed bychildren in the schools.6 At every opportunity, American and French revolu-tionaries proclaimed their desire to re-establish the “stupendous fabrics” ofrepublican government that had fostered liberty at Rome.7

The Roman name of “republic” evoked first and above all the memory ofgovernment without kings.8 Roman authors dated their republic from thedeath of Rome’s last king, Tarquinius Superbus, and mourned its fall in theprincipate of Augustus.9 As French and American politicians came increas-ingly into conflict with their own monarchs, they found a valuable ideology

of opposition already fully formed in the Roman senatorial attitude towardCaesar and his successors The guiding principle of this republican tradition,

as remembered (for example) by Thomas Paine, was government for the

“res-publica, the public affairs, or the public good”, perceived as naturally

antithetical to monarchy and to any other form of arbitrary rule.10 Paineand other eighteenth-century republicans viewed the individual and thecollective well-being of citizens as the only legitimate purpose of government.Their rallying cry of “liberty” signified subjection to laws made for thecommon good, and to nothing and to no one else.11 Statesmen traced this

Republican Influences on the French and American Revolutions 17

principle to the frequently cited passage in Livy,12 attributing the liberty ofRome to Lucius Junius Brutus and to his introduction of elected magistratesinto Roman politics, constrained by the rule of law.13

American and French republicans thought of themselves as part of a thousand year-old tradition, originating in Rome The standard accountdivided political science between the “ancient prudence”, destroyed byCaesar and Augustus, “whereby a civil society of men is instituted and

two-preserved upon the foundation of common interest” and the “modern

prudence”, in force ever since, “by which some man, or some few men,subject a city or a nation, and rule it according to his or their private inter-ests”.14 Republicans fought to restore the ancient prudence, which ended

“with the liberty of Rome”.15 John Adams, the Massachusetts republican(and later president of the United States), credited this analysis to JamesHarrington, the English commonwealthsman,16 who attributed it to DonatoGiannotti, the Florentine exile,17 who had it from Tacitus,18 in a passagemade popular for English and American readers by Thomas Gordon19 andpassed on as a legacy of liberty from generation to generation.20 The tradition

of republican opposition to arbitrary authority in Europe had developed far

in advance of the French and American Revolutions21 and strongly enced political events centuries before new republics emerged on the scene,

influ-or nations knew them by that name.22

Thomas Hobbes perceived the threat to settled institutions in republicandoctrine and blamed the schools and universities for instigating the English

Civil War, by teaching “Cicero, and other Writers [who] have grounded their

Civill doctrine, on the opinions of the Romans, who were taught to hateMonarchy”, and to love republican government, so that “by reading of theseGreek, and Latine Authors, men from their childhood have gotten a habit(under a falseshew of Liberty,) of licentious[ly] controlling the actions oftheir Soveraigns; and again of controlling those controllers, with the effusion

of so much blood; as I think I may truly say, there was never any thing sodeerly bought, as these Western parts have bought the learning of the Greekand Latine tongues”.23 Italian, Dutch, and English reformers all appealed toRoman institutions,24 with enough success that by the early eighteenthcentury in Britain, John Trenchard and Thomas Gordon (writing as “Cato”)could claim that although the “[t]he same principles of nature and reasonthat supported liberty in Rome, must support it here and everywhere”,25

Hanoverian England was “the best republick in the world, with a prince atthe head of it”, being “a thousand degrees nearer a-kin to a commonwealth than it is to absolute monarchy”.26

“Commonwealth” was simply the English translation of “republic”, butthe short history and ultimate failure of the self-styled “Commonwealth”

of England in the seventeenth century complicated subsequent usage

Although the English commonwealth was denominated “respublica” on

Oliver Cromwell’s state seals,27 as the American Commonwealth of Pennsylvania

18 Republican Legal Theory

was styled in Latin “Respublica” in all its early law reports,28 the word

“commonwealth” came to be associated with parliamentary unicameralismduring the English Civil War, and later with Pennsylvania’s famouslyunicameral constitution of 1776.29 This made the name of “common-wealth” both “unpopular” and “odious” to many who would have preferredinstitutions more faithful to the older Roman model of “mixed” republicangovernment.30 Opponents of the Pennsylvania plan formed what theycalled the “Republican Society” to advocate the stronger checks andbalances of a more truly “republican” constitution.31

French republicanism developed its institutions under the strong influence

of Pennsylvania, in the person of Benjamin Franklin, who had presided atPennsylvania’s constitutional convention, represented the United States asambassador to France from 1776 to 1785, and secured the translation of thefirst American state constitutions into French French opinion had longadmired Pennsylvania as a modern Sparta, and its founder, William Penn, asthe new American Lycurgus.32 This contributed to a gradual divergencebetween French republicanism, which looked to Pennsylvania, to Sparta,and to the English Commonwealth for its inspiration, as much as it did toRome, and American republicanism, which looked primarily to Rome, butalso to the British Whig “republican” tradition, as it had existed after theGlorious Revolution of 1688.33 The practical results of these differingattitudes were constitutional first, contributing to French carelessness aboutthe checks and balances of republican government, and cultural second,leading to a greater French emphasis on public virtue than Americans feltwould be necessary under the republican form of government.34

The problem for would-be republicans, in America as much as in France,was that the Roman republic itself had ultimately failed Tacitus, in awell-known passage, described republican government as fragile andevanescent, easier to praise than to practice for long.35 Tacitus gave a sympatheticpresentation of the emperor Galba’s argument that the Roman Empire hadsimply become too large to continue under republican institutions, andneeded a measure of slavery to survive.36 Montesquieu made this supposition

famous in his volume De l’esprit des lois, which concluded that large republics

will inevitably become corrupt, and die into despotism.37 All modern licans had to face the problem of Rome’s failure, but various authors offereddifferent remedies, depending on their circumstances and to some extent onwhich Roman sources they read (or chose to remember) Certain revolutionariescited Livy to advocate the rule of law.38 Others followed Plutarch in theiremphasis on rural simplicity.39 Sallust had stressed the dangers of corrup-tion.40 The question facing modern republicans was which “combination ofpowers in society” would “compel the formation of good and equal laws”and “an impartial execution, and faithful interpretation of them, so thatthe citizens may constantly enjoy the benefit of them, and be sure of theircontinuance”.41

repub-Republican Influences on the French and American Revolutions 19

The importance of Rome’s republican model for French and Americanrevolutionaries lay in the courage that it gave them to contemplate govern-ment without a king, by providing politicians with a rival set of politicalinstitutions, opposed to the hereditary principle Roman republican rhetorichad stressed the importance of the common good, the corruption of kings,the authority of the senate, the balance of the constitution, and the sover-eignty of the people.42 This set the tone for public debate Agitators disputingpseudonymously in the newspapers called themselves “A Republican”,43

“Civis”,44 “Cato”,45 “Curtius”,46 “Brutus”,47 “Publius”,48 “Cincinnatus”,49

and so forth They all struck Roman poses, but what they actually foughtover in arms and disputed in print was the power and constitution of thestate The republican revolutions of the eighteenth century sought govern-ment for the common good (“republican government”), but also the consti-tution best suited to secure government for the common good (the

“republican form of government”), which led them back to republicanRome Rome’s greatest and most lasting contribution to the French andAmerican revolutions consisted not only in political principles, but also in a set

of constitutional mechanisms designed to secure republican liberty throughthe fundamental structure of the state.50

John Adams, the pre-eminent American political scientist of his era, andauthor of the Constitution of the Commonwealth of Massachusetts,51

collected in his Defence of the Constitutions of Government of the United States

of America, three volumes of examples and commentaries on the “reading

and reasoning which produced the American constitutions”.52 Adams traced

“the checks and balances of republican government” back to the “mixedgovernments” of monarchy, aristocracy, and democracy attempted “withdifferent success” in ancient Greece and Rome.53 The Greeks never masteredthe “checks and balances of free government”, ultimately to their cost,54 butAdams (citing Cicero) reviewed how the Romans had developed institutions

to protect freedom and justice through a careful balance and mixture of thedifferent powers of the state.55 The principal Roman texts cited by Adams inhis introduction to define republican government were Cicero’s endorsement

of the mixed constitution,56 his prescription for civic “harmony”, secured

by checks and balances,57 and his conclusion that republics exist first, andabove all, to serve the common good.58 Adams supplied all three texts forhis readers, both in Latin and in English paraphrase, along with two other

excerpts from Cicero’s Republic, reiterating the primacy of the common

good over democracy, and identifying the common good with justice.59“Asall the ages of the world have not produced a greater statesman and philoso-pher united in the same character” than Cicero, Adams concluded, “hisauthority should have great weight”.60

Cicero’s unrivaled authority in republican politics supported the balancing

of powers between three branches of government,61 very much in the formthat had already evolved in the British colonies of North America in the

20 Republican Legal Theory

one hundred and fifty years prior to the American Revolution.62 Americansnoticed the parallel, which strengthened their resolve to protect their oldinstitutions against British innovation.63 They also shared many of Cicero’sfundamentally patrician attitudes American politicians, such as JamesMadison, drew a sharp distinction between their “republican” pursuit of thecommon good and the “democratic” tyranny of simple majority rule.64 Thesingle greatest difference between Roman republican institutions, as Americansremembered them, and America’s own (as they hoped) more stable repub-

lican constitution, was “the total exclusion of the people in their collective capacity”

from any share in the government of the United States.65 Americans hopedthat by extending the “representative” principle already present in Rome’sconsuls and Senate to other formerly more “democratic” branches ofgovernment,66 they could introduce a “republican remedy for the diseasesmost incident to republican government”.67 The American House of Repre-sentatives would replace Rome’s popular assemblies to act, in a sense, as

a second senate, helping to defend the people “against their own temporaryerrors and delusions”.68

The sixth book of Polybius provided the classical summary of the “republicanform of government” that eighteenth-century republicans sought to perfect

by modifying the Roman constitution Polybius’ endorsement of limitedand divided power stressed a balance between monarchy, aristocracy anddemocracy.69 His modern successors proposed instead the checks andbalances, not so much of “orders” or “classes” of men as of “offices” held byotherwise equal citizens.70 The evil to be avoided was “tyranny” or theestablishment of any “unlimited power” that some one, few, or manycitizens might use to dominate the rest.71 John Adams provided translationsand a summary of Polybius’ sixth book in his collection of republicansources,72 published just in time to be used by delegates at the United StatesConstitutional Convention.73 Modern would-be republicans rememberedthe Roman consuls as having been primarily executive officers; the senatewas thought of as having been primarily responsible for finances and declar-ations of war; and the popular assemblies were understood to have held thepower of electing magistrates and approving the nation’s laws and wars.74

Latter-day republicans struggled to improve this balance in their ownconstitutions – as in the United States, where the President was the executive,75

the Senate ratified all treaties, and the House of Representatives supplantedthe Roman popular assemblies in holding final approval over all laws anddeclarations of war.76 The aim of the modern republics still remained whatmoderns thought that it had been at Rome: the maintenance of strongenough political checks and balances so that whenever any one branch ofthe government or people became too “ambitious”, the others would unite

to control it, thus keeping all public powers within their original bounds, asprescribed by the Constitution.77 The United States Constitution guarantees

a “republican form of government” to every state in the Union,78 which federal

Republican Influences on the French and American Revolutions 21

power enforces against the state governments, as occurred in the AmericanCivil War.79

French republicans never developed a stable set of political theories or

institutions as clear and coherent as those set forth in John Adams’ Defence

of the Constitutions of Government of the United States of America or James

Madison’s and Alexander Hamilton’s Federalist letters, but they drew on the

same Roman sources and came to many of the same conclusions The baron

de Montesquieu’s masterpiece, De l’esprit des lois (1748) and Jean-Jacques Rousseau’s Du contrat social (1762) both preceded the Revolution, and were

“scarcely republican” in the eyes of subsequent writers.80 Nevertheless, bothrelied heavily on Roman authorities, and profoundly influenced American(mostly Montesquieu) and French (mostly Rousseau) republican thought.Anne Robert Jacques Turgot and the Abbé Gabriel Bonnot de Mably hadboth interpreted American republicanism for French readers, without fullyendorsing the North American models Turgot proposed a single all-powerfulpublic assembly, and criticized American bicameralism.81 Mably disliked theAmerican commercial spirit, which he thought would make Americanscorrupt.82 Both men’s attitudes reflected a French sense of the “ancients”and the “moderns”, well summarized by Benjamin Constant in the wake ofthe French Revolution’s collapse into empire, when he dismissed ancient

“liberty” as having required a universal subjection to the public will,expressed collectively in large public assemblies, under the direction of

a public political virtue that modern citizens had lost and could never hope

to regain.83 Montesquieu doubted that ancient republicanism of this kindcould ever survive outside small homogenous cantons.84 Rousseau reluc-tantly agreed,85 adding that democratic assemblies of limited local populationsoffered the only realistic hope of republican liberty or political justice in thisworld.86

Rousseau’s conception of republican virtue, and his dogmatism about thenecessary corruption of large states, set an almost impossible task for Frenchrepublicans, which contributed to the excesses of Maximilien Robespierreand Jacobin Terror in France Like Livy and John Adams, Rousseau identifiedrepublican government with the rule of law, under the sovereignty of thepeople,87 when they act to secure their common good.88 Rousseau described

such public decisions as expressions of the “general will” (“la volonté

générale”).89 The people are the “sovereign” authors of the laws that bindthem,90 which makes them “free”,91 but only so long as the sovereignpeople legislate collectively in pursuit of their common good.92 Rousseaudiffered from other republicans only in his opposition to representation inthe popular assembly93 and his heightened fear of “factions”, by which hemeant any group, large or small, acting in its own private interests.94 Theseviews had significant practical implications, however, at least in France Ifall laws have to be ratified by democratic assemblies of the people,95 thenthe people must become virtuous,96 or mutually reasonable (which is the

22 Republican Legal Theory

same thing).97 Rousseau wrote of changing human nature.98 He thoughtthat good public morals would be necessary to maintain any successfulrepublican government.99 Yet the French were notoriously corrupt anddepraved.100 This made the maintenance of their virtue an extremely difficult,perhaps an impossible task, and so, with his French successors, Rousseausupposed that some peoples (perhaps including the French themselves)would simply remain unfit for republican government, without profoundreforms.101 French republicans looked upon public virtue as rare and difficult

to maintain.102 American republicans preferred to believe that by institutinggood orders, they would create good men.103

The history of republican principles in Europe in the centuries precedingthe French and American revolutions saw a series of political advances

as scholars, then clerics, courtiers, and kings, steeped in Latin learning,embraced the republican commitment to government for the commongood Some even recognized the desirability of popular sovereignty andmixed or balanced government to secure the common good, while doubtingtheir practicality, given the fallen state of European morals.104 King Charles Iclaimed that England was already a mixed and balanced government in his

answer to the XIX Propositions Made by Both House of Parliament in 1642.105

The English “Cato” said the same of England under George I,106 while avowing the thought that any fully implemented “Republick”, would be

dis-“practicable” in England’s current circumstances.107 This remained theAmerican position until 1776, after the publication of Thomas Paine’s

Common Sense, which convinced many Americans that the king’s long and

violent abuse of power108 finally made it necessary to develop the “republicanmaterials” long embedded in England’s mixed and balanced constitution.109

The French were just as hesitant until their King’s flight to Varennes in June

1791, and even then they brought him back and renounced the prospect of

a full republic.110 Politicians denied that they were republicans,111 althoughRobespierre defended the constitution proposed after Varennes as a “republicwith a king at the head of it”.112 The French introduced most of theelements of the republican form of government into their constitution in

1791, but maintained their constitutional monarchy until 10 August

1792.113

The French revolutionary model of a republic with a king at the head of itwas wholly in keeping with Rousseau’s political precepts.114 Rousseau hadalways made a strict distinction between the magistrates, who could behereditary, and the public legislative assemblies, which should include thewhole people and constitute the only legitimate sources of law.115 WhileRousseau would have preferred that elected magistrates implement thepeople’s laws,116 he accepted that sometimes a monarch might govern

“legitimately”, in accordance with laws that had already been approved inthe public assemblies.117 Both Montesquieu and Rousseau had suggestedthat some nations might be or become (as Rome had done) too large or corrupt

Republican Influences on the French and American Revolutions 23

to be ruled as republics, and that monarchs sometimes suited such statesbetter than elected magistrates, despite their well-known injustices.118 Yet,Rome had survived as a republic for many years, despite its size This offeredthe French some hope.119 They attempted various stratagems to make thepeople more virtuous, and Rousseau even considered the institution ofslavery, justified as having been the vehicle through which Spartan citizensattained the leisure to give their complete attention to the public good, and

so properly to pursue their deliberative duties in the legislature.120

The French republicanism of Rousseau and his disciples differed from itsRoman, Polybian, and later American antecedents in its greater reliance onunanimity in the public assemblies, rather than checks and balances, toguard against faction.121 While Polybius, Madison,122 Adams123 and evenMontesquieu124 wrote of using power as a check to power, and ambition tocounteract ambition, Rousseau turned to mixed government only to protectpopular sovereignty, by preventing magistrates from usurping the legislativepower of the people.125 French scholars studied the Roman comitia in detail

for ideas about how to guide public legislative debate, whether through theuse of census classes, through the exclusion of the proletariat, or by instituting

a body of censors to guard against the greed, intrigue and inconstancy of

“modern” human society.126 Montesquieu thought that many proto-republicanchecks and balances had existed already under the Roman kings.127 Thismade it easier to tolerate monarchy, even in a state that understood repub-lican liberty to be the primary object of government Learned Frenchmenthought that Roman liberty had first been lost, not through the agency ofkings, but rather when democracy invaded the diplomatic authority of thesenate, and usurped the magistrates’ executive power.128

Latin literature and the Roman ethos were not a novelty in 1789 Joseph

Addison’s Cato (1713) and Voltaire’s Brutus (1730)129 had promoted a

repub-lican sensibility in the theater Jacques-Louis David’s Oath of the Horatii

(1784) mimicked republican austerity in art Charles Willson Peale’s portrait

of William Pitt (1768) shows the prime minister in a toga, standing beside

a statue of Roman liberty (with her pilleus and vindicta), and worshiping at the sacred flame on her altar Charles Rollin’s Histoire ancienne (1730–1738) and Histoire romaine (1738–1748) fed a ravenous popular demand.130 ARoman sensibility dominated the architecture,131 sculpture,132 and rhetoric

of French, English, American, and most European public life, without veryoften embracing an openly “republican” position.133 What changed inNorth America in 1776 and France in 1792 was the public’s willingness tobelieve that republican government would be possible in modern times,with all its checks and balances, and without the hereditary principle.134

The French republic, when it finally emerged, quickly repeated five hundredyears of Roman history in a decade From a self-styled Brutus (Desmoulins)

to the pseudo-Gracchus (Babeuf) and would-be Caesar or Augustus (Bonaparte),French politicians re-enacted the evolution and eventual destruction of the

24 Republican Legal Theory

Roman republic in the blood of their own citizens, to the amazement, ation, and eventual horror of Europe The French experience seemed toconfirm all the doubts of Tacitus, Montesquieu, and Rousseau that repub-lican government could ever be recreated after Rome, or survive very long if

inspir-it was But the Uninspir-ited States did survive, and American republicans had dicted the republican failure in France.135 The French republic’s inattention

pre-to the traditional checks and balances of the republican form of ment explained that nation’s excesses, or so many surviving republicansbelieved.136 Others blamed the ingrained corruption of Frenchmen.137 LikeRome itself, France found an imperial solution to republican anarchy, ignoringchecks and balances in favor of a plebiscitary dictatorship, whose legacythreatened the republican tradition in Europe for more than a centuryafterwards.138

govern-French advocates of Roman checks and balances seemed to have had theirchance to make republican government work in the failed Constitutions of

1791, 1793, 1795, and 1799, all of which tinkered with limited magistrates,deliberative senates, and representative popular assemblies, so that Frenchgovernment seemed to move (in form at least) ever closer to the Romanmodel – beginning with a constitutional monarchy and unicameral assembly(1791), then replacing the monarch with an executive council (1793), adding

a second chamber in the legislature (1795), and finally creating “consuls”,

“tribunes” and a senate-for-life (1799) In reality, none of the French

consti-tutions ever had the chance to take hold, and the various “Sénatus-consultes” and “Proclamations des Consuls” that made Napoléon Bonaparte a consul for

life and eventually emperor, discredited Roman vocabulary for subsequentgenerations in France.139 The old republican advocates of checks andbalances, and liberty now called themselves “liberals”, and turned theirattention to individual rights.140 What later French politicians remembered

as “republican”, for good or ill, were the unicameral expressions of the

“general will” made in the manner of Jean-Jacques Rousseau by the Conventionand Constituent Assemblies,141 along with Robespierre’s vain attempts

to inculcate civic virtue, on the Spartan model, during his own briefascendancy.142

The French and American Revolutions changed subsequent conceptions

of republican government, and divided the republican tradition, by creatingtheir own inspiring republican narratives, to supersede the histories ofRome Of course, the Roman model remained, so long as students read Cicero,Sallust, Livy, and Tacitus in schools,143 but the American republic nowprovided a more contemporary example of successful republican government,without the final failure, as in Rome.144 The French republican traditionafter Robespierre differed from Roman practice mostly in disparaging thesenate.145 When France returned to bicameralism at the end of the nine-teenth century, it did so under American influence, against the grain of itsown “republican” tradition, and without reference to Rome.146

Republican Influences on the French and American Revolutions 25

The essence of republican government, as remembered by French andAmerican revolutionaries in the late eighteenth century and attributed toRome, was government for the common good, through the rule of law,under a sovereign people, guided by magistrates that they had electedthemselves The “republican form of government”, more respected in theUnited States than in France, but much-discussed in both nations, con-trolled the powers of the magistrates, the senate, and the public assemblies,

by balancing their responsibilities in the manner of republican Rome BothFrance and the United States replaced the direct democracy of the Roman

comitia with elected representative assemblies, and denigrated “democracy”

generally, as tumultuous, partisan, and ill-conceived.147 This old oppositionbetween “Roman” republicanism and “Greek” democracy diminished withtime as French politicians forgot Rousseau’s distinction between the sovereignpeople and their government.148 Americans in the Southern states alsoturned to “democracy” in the early nineteenth century as they embracedFrench speculation about the benefits of Greek slavery,149 to justify theirown slave power in the face of emerging “republican” opposition.150

The history and institutions of the Roman republic gave French andAmerican republicans the courage and vocabulary to pursue their ownindependence nearly two millennia after Cato’s death in Utica extinguishedrepublican liberty in the ancient world.151 The French and American cry of

“liberty” was a call for the equal citizenship under law that Europeansremembered as the final legacy of Rome French and American politicianshad drawn slightly different conclusions from the civil conflicts that endedthe republic – the Americans followed Cicero in strengthening the senate,the French followed Sallust in somewhat weakening its power – but bothembraced the Roman aim (as they remembered it) of serving the commongood, through popular sovereignty, balanced representative government,and the rule of law

At the end of the American Revolution, after they had defeated the Britishking (with French help) and earned their nation’s independence, theofficers of the Continental Army returned, unpaid and unappreciated, totheir separate homes and farms Steeped in the republican ethos, they didnot revolt against their mistreatment, but took the name of “Cincinnati”,after Rome’s great general Lucius Quinctius Cincinnatus, who had alsoreturned to his plough after victory, without reward Their motto recalledtheir sacrifice, and the debt that American liberty owed to Latin education

in the schools: “omnia reliquit servare rempublicam”.152 Modern republicansfound both their morals and their constitution in the old republican legacy

of Rome

4

Republican Legal Systems

Republican legal systems are systems of law and government that embracethe basic tenets of republican legal theory, as developed by Marcus TulliusCicero, Polybius and their contemporaries, and by their various heirs andimitators in Italy, England, France, and the United States of America.1

Republicans argue that serving the public good constitutes the only soundbasis for a just legal order, and conclude that all laws in all jurisdictionsdeserve public deference only to the extent they do so The fundamentalrepublican test of a legal system’s legitimacy is whether its laws actually

advance the res publica or “common good of the people”.2 Cicero observedthat all republics must belong to separate “peoples”, by which he meant tolarge numbers of persons associated together to create a common sense ofjustice and shared public good.3 This remains the basis of republican legaltheory today Republican legal systems are whichever systems of law andjustice serve the common good of the people the best

Most legal systems claim to do so The universal assertion of all legal

systems that their subjects ought to obey the law entails an underlying claim

that the legal system itself is actually just and therefore deserves their ence.4 Republicanism takes this claim seriously, and proposes a politicaltechnique for realizing justice and the common good, through popularsovereignty, the rule of law, and political checks and balances amongelected officials These three pillars of republican government defend

obedi-“liberty” as it was understood by the republican authors who introduced the

Roman term “libertas” into modern legal thought.5 Republican liberty

requires the dominion of equal laws, made by common consent for the general

interest or public good of all citizens.6 The first two provisions guarantee thethird, and are only “republican” to the extent that they do so

Liberalism

Contemporary legal scholars sometimes oppose “republican” principles to

“liberalism”, associating the first with democracy, and the second with

Republican Legal Systems 27

human rights.7 This creates unnecessary confusion, and obscures thecontext in which both liberty and democracy entered modern legal

discourse Liberty (libertas) and popular sovereignty (imperium populi)

persisted together in the republican legacy of Rome and blossomed together

in the republican triumphs of France and the United States.8 They divergedwhen the unchecked unicameral French legislature collapsed into tyrannyand terror Liberalism first emerged as a shocked bourgeois reaction to theexcesses of the French Revolution.9

Republican liberty requires that no person be governed by any otherperson’s simple will or passion Laws, government decrees, and other coerciveactions are unjust unless justified by service to the common good.10 Thiscreates the republican distinction between liberty and license “License” isthe unconstrained ability to do what one pleases, even to the detriment ofothers “Liberty” implies constraint, in service of the common good Butearly liberals, such as Benjamin Constant, drew a false distinction betweenthe “liberty of the moderns” and the “liberty of the ancients”.11 Constantgrew disillusioned with popular sovereignty and democracy, and turned hisattention exclusively to rights Liberalism redefined liberty as the ability to

do what one wants, and sought to maximize self-gratification through thegrant of personal rights to individuals, as in the old English constitution,without accompanying political rights, as in America or Rome

The common good

Republicanism requires democracy and liberalism does not But they differless in this (“liberal democracies” exist) than in liberalism’s implicit rejec-tion of the common good All republican doctrine follows from pursuit ofthe common good, while liberalism assumes that there is no “true” publicjustice or common good to be found, only “reasonable” accommodationsbetween rival private interests.12 This is a subtle distinction Republicans do

not deny the existence of the private sphere, since recognizing the res

publica implies a res privata But republican doctrine depends on creating

a common public interest The chief end of law and society should be tomake the interests of each individual and of the whole body politic as much

as possible the same.13 Citizens who set out to find a common interest intheir shared human nature will be more likely to live in peace and justicethan citizens who do not.14

This constitutes the republican argument for pursuing the common good.Republican legal theory does not deny the pluralism of individual lives andlifestyles, or the importance of toleration and diversity Individual interestsexist, and sometimes conflict, but many important aspects of worthwhilehuman lives can only be realized collectively, in large social groups People willinevitably interact, and develop rules to govern their interactions Some sys-tems for doing so are better than others and people should seek to implement

28 Republican Legal Theory

the best available system, because even if several are equally just, there can be

no harm in seeking to find the best Human nature provides the basis fromwhich such systems must be built Sometimes people disagree about truth andjustice Long deliberations fail to produce consensus Individuals will need:first, a technique for testing their beliefs about justice and the good life;second, a technique for protecting themselves against others in pursuingjustice and the good life; and finally, a technique for obtaining the cooperation

of others in building justice and their own good lives.15 These goods are mon to all citizens Without agreement about justice, and partnership for thepublic good, individual lives will be confused, unsafe, and mired in isolation

com-Popular sovereignty

Republican legal systems since Rome have always rested on popular eignty as the first and fundamental basis of liberty and the public good.Popular sovereignty in this context consists in free votes for legislators orthe laws, in which all citizens have a voice Popular sovereignty solves theultimate republican problems of uncertainty, unsafety, and non-cooperation.Free votes of the people constitute the best technique for: (1) finding thetruth; (2) getting others to accept the truth; and (3) arranging whatevercooperation may be necessary to take the right action Popular sovereigntyoffers all three by treating every citizen as capable of perceiving moraltruths This allows individuals to defer to majority decisions without admittingerror, even when not convinced National deliberation may yield truths thatsome do not approve, but it holds out the prospect of correcting publicmistakes, and respects the reason of the citizens that it overrules.16

sover-Republicans speak of “popular sovereignty” or of the “imperium populi”

rather than of democracy because democracy savors too much of Athensand of Greek self-indulgence.17 The republican revolutions in America and

in France introduced democracy into modern legal practice, but avoided theterm “democracy” for twenty years, to maintain the distinction betweengovernment for the public good and government serving private interestsand passions Republicans embraced popular sovereignty as the best shield

of liberty and test of the common good But democracy implies voting one’sinterests, considering only what one wants, and not what would be right to

do Republicanism on the Roman model requires voting, as the ultimatecontrol on all the magistrates and laws, but only to fill offices already care-fully structured to find the common good, rather than to serve the narrowinterests of some favored segment of society

The separation of powers

How then to keep democracies honest? The separation of powers offers anobvious solution Governments should protect liberty and the common

Republican Legal Systems 29

good, but will not do so when their power is unchecked Dividing mental power, and balancing the strength of its different divisions, canprevent any one group from abusing its authority The structure of the old

govern-Roman res publica, mimicked by subsequent republican governments,

required approval of all laws by the people, but also a senate to propose thelaws, and elected magistrates to administer them Inadequate balance led todespotisms – to Caesar in Rome, to Cromwell in England, to Bonaparte inFrance and to Jackson in the United States.18 Republicans always aim toperfect the balance of government, in defense of liberty and pursuit thecommon good

Modern republics rely on representation in the popular assembly, largeelection districts, and infrequent elections to purify the public voice and tocounteract political self-interest The people never rule directly, but alwaysthrough elected officials The voters do not wield power themselves, except

on election day This prevents the main threat to republican government:corruption, which is to say any exercise of public power to serve anypurpose other than the common good and justice (which are substantiallythe same thing) The various elections, at different times, to different offices,control the popular emotions The separation of powers sets the authorities

to watch each other, so that ambition will counteract ambition in defense ofthe public good.19

The rule of law

The third traditional desideratum of republican government requires therule of law (“the empire of laws and not of men”), which protects justiceand the common good against private interests by constraining official

discretion in advance Livy endorsed this imperium legum for Rome,20 andwas followed by Harrington,21 Sidney,22 Adams,23 Madison,24 and even

Rousseau in concluding that tout gouvernement légitime est républicain.25

Republican legal systems rest on the rule of law, with the understandingthat nothing can be law without approval by the people, in pursuit of thecommon good

Republican legal systems require the rule of law because, human naturebeing what it is, any government official charged with making decisions willtend to make them in her or his own private interest If decisions areprovided for by law and made collectively in advance before specific situ-ations arise, they will more likely serve the public good than if made on thespot, by possibly self-interested participants Republican governments try tolimit official discretion and to remove temptation by enforcing known laws,and using popular sovereignty to define the scope of governmental power.The first step towards the security of real republican government is the

battle for independent judges, serving during good behavior, “quam diu se

bene gesserint”, rather than at the discretion of the executive or people.26