Law and Justice – Cicero and Roman Republicanism – 12.3 Cicero and the Constitution
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Law and Justice – Cicero and Roman Republicanism – 12.3 Cicero and the Constitution


>>>>Cicero’s political thought is grounded
in his ideas about the nature of the republican Constitution. The way that Cicero thinks about
constitutional law is influenced by the Greek tradition of constitutional thought that runs
all the way back through Aristotle, even beyond. Cicero thinks that there are three kinds of
constitutions: rule by the one, rule by the few, and rule by the many. He thinks that
they are correct and deviant forms of each of those three, as we’ve seen in many different
contexts. Cicero also develops the ancient strand of thinking about mixed constitutions
— that these different types can be mixed even within an individual regime. And Cicero
outlines, in detail, how he thinks this constitutional theory is institutionalized in the Roman Republic.
Cicero, in his book “On the Republic,” recounts the constitutional history of Rome from its
very beginnings, the foundation of the city, through the monarchial period. And Cicero
in fact says that even during the monarchical period of its history, Rome already had a
sort of mixed Constitution. That there were already elements of rule by the one, obviously
in the form of the kingship, rule by the few in the form of the Senate, which the Romans
believe go back to the very first days of the city itself, and rule by the many that
they’re the institutions that allow the public itself to have a voice. But what Cicero thinks
the mixed constitution lacked in the very first days of Rome, in the monarchical period,
was balanced. Cicero’s main contribution to the history of constitutional thought is to
advance on ideas of the mixed constitution, towards an idea of a balanced constitution.
Cicero sees the establishment of the Republic, the overthrow of the monarchy in 509, in which
the Romans established a system of rule by two consuls, who were elected for annual terms
and shared power, as a great advance towards balance. But he actually sees that the Republic
continues to progress, and so he describes the institution of the 12 tables of Roman
law, the first written form of law, as a great advance towards a balanced, mixed constitution.
And Cicero sees a certain period in the early Republic as the ideal period of the Roman
Republican Constitution. In fact, Cicero thinks that the Republic of his own day has been
thrown out of balance, because Cicero thinks that the ideal constitution will have a balance
between monarchical, aristocratic, and democratic elements. And Cicero in fact thinks that the
state will be best, that the Republic will be in its ideal form, if the aristocratic
element is in power. Now Cicero thinks that there ought to be monarchical and that there
ought to be democratic elements and that these ought to be balanced with the aristocratic
element, but he ultimately sides with the aristocracy in the belief that this is where
the best wisdom, the best guide for the state will lie. And what’s interesting about Cicero’s
account is that he develops strands of this kind of thinking that are present in Aristotle,
who also thinks that aristocracy, which in the case of Aristotle’s political thought,
we said, should be considered truly a meritocracy rule by the best–the most virtuous, which
is what aristocracy really means. Cicero pulls this out but advances on it and contextualizes
it in the background of the Roman political system of his day. Now what’s different about
this the Roman aristocratic element is the Senate, and Cicero believes that these are
truly the best. But when we think about Cicero’s aristocratic element, we’re truly beginning
to talk about a real aristocracy; an aristocracy partly of birth, but most importantly of wealth,
because the Senate in Cicero’s day is dominated by men of great wealth. And so Cicero’s Constitution
is a mixed and balanced constitution that’s weighted towards the aristocracy, but very
much an aristocracy that is dominated by the wealthy elements of society. And for Cicero,
this is the ideal state of the Constitution, but already during his lifetime the Constitution
has been thrown out of balance towards democracy. And, in fact, Cicero is a critic of excess
democracy. He believes that there’s such a thing as too much democratic liberty–that
if the people have too much say, that it, in fact, inherently destabilizes the Republic.
And so Cicero is a critic of democratic elements within the Constitution. He sees them in his
own day and age as being excessive, as being too powerful. He believes that the people
are fickle that they’re not necessarily wise and in particular certain kinds of elements.
In Cicero’s political thought we see a very strong idealization of the farmer we see in
Cicero’s political thought a certain kind of idealization of the small farmer. This
will become fundamental to the ideology of republicanism throughout the rest of its history,
and as we’ll see it’s very strong in later periods, including the early American Republic
when people like Thomas Jefferson were strong advocates a the kind of republicanism that
was centered on the ideal of a citizen farmer. People like Cicero believe that farmers make
good citizens, that they have a kind of independence–that they don’t depend on others for their wages,
for their pay. That the kind of lifestyle that’s required by agriculture cultivates
in the individual, a kind of responsibility, a kind of outlook and attitude that makes
someone a good citizen. And so Cicero sees this as a kind of ideal for the ordinary man,
but he’s certainly skeptical about urban masses and certain kinds of elements of society that
depend for their pay upon wages, and that aren’t independent small farmers. And so there’s
a kind of image of society that’s inherent in Cicero’s constitutional outlook. And Cicero’s
constitutional thought is important in two other respects. One is his attitude toward
property, and its relationship to the origins of the state itself. Cicero in a way synthesizes
two different strands of political thought that had existed since the days of Plato and
Aristotle. One is the idea that somehow the state is a convention, a compact that people
create to maximize their utility or well-being, and the other is that the state is natural.
Cicero tries to break down this dualism and to say that the state is in fact natural insofar
as people are naturally social creatures. Just like Aristotle says man is a political
animal, Cicero believes that humans are naturally sociable, that they want to live in societies.
And Cicero at the same time believes that the purpose of the state is fundamentally
tied to the protection of property. Cicero is a great defender of the rights of private
property, and in this sense, he’s conditioned by his place in the Roman aristocracy as someone
who’s wealthy, has enormous landholdings, and commercial interests. Cicero, when he
thinks of property, lives in a very different kind of society than say Aristotle had, which
is still a relatively traditional agricultural society. The society that Cicero inhabits
is a commercialized society. In fact Rome in the 1st century BC is probably already
by that time the wealthiest, the most prosperous, the most commercialized society that the world
had ever seen. And so when Cicero thinks of property he’s thinking more fundamentally
of all kinds of property: landed and commercial. And he’s a great defender of private property,
and believes that the purpose of the state is to protect property rights in individuals,
that this is the one of the most fundamental purposes of law is to provide an orderly system
of property rights and transactions. And so Cicero as a political and constitutional thinker
cuts through this old dualism between property and convention on the one hand, and natural
sociability on the other, to see human society as an outgrowth of our natural instincts but
also a way of devising a set of rules that protect private property interests. Cicero’s
thinking about constitutions in politics is original and important in a second way. Cicero
synthesizes the Stoic idea that people have a common humanity, and a kind of common dignity–but
at the same time he also believes that there is a wide spectrum of human difference. Now
we’ve seen for instance going back through Aristotle’s political thought, that people
have different levels of value, that not everybody is equal. Not all people are equally meritorious.
Some people are better than others. Cicero develops an way of thinking about this kind
of problem. He says that people have two different personae. That there’s one kind of common
human persona in which every individual, simply by virtue of their being a human being, is
entitled to a certain amount of dignity, a certain kind of respect–that all people are
moral rational creatures who deserve a certain kind of political respect simply on those
grounds. At the same time, people have their individual personae, that they have their
own developed, individual, embedded social personae that they are who they are as an
individual–and that on this account, individuals are of different worth that some people are
better than others. And it’s a very powerful way of thinking about common humanity and
individual difference. Cicero says that people have an inherent moral dignity as human beings
but that they have different levels of dignity, of dignitas, simply by virtue of who and what
they are based on their merits. And in fact Cicero believes that because people are unequal,
they deserve different kinds of rights and privileges. And Cicero’s constitutional system
imagines that the Roman aristocrats represent the better part of society, that they represent
those who are more worthy, that they’re of higher value, higher dignity and because of
that, they deserve greater power. They deserve greater rights and privileges within the Roman
Republican Constitution. And so Cicero’s political thought in which the Roman Senate should be
supreme, should have a kind of authority that is foremost within the system of a balanced
constitution, imagines that this is based upon merit–that some people are better than
others. Now whether that’s the case or not we might highly doubt, but nevertheless, there’s
at least a a rationalization, a way of explaining this that resonates deeply in terms of the
philosophical tradition.

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