The ancient Greeks, besides giving us democracy, also had a long tradition of constitutional founding fathers: Solon gave laws to the Athenians, Lycurgus to the Spartans. The Romans, on the other hand, had to wait for the modern era for their own constitution, most concisely laid out, at least for English speakers, in Lintott’s The Constitution of the Roman Republic. But even if the Romans had no constitution before Lintott gave them one, does it also follow that they had no ability to think in terms we would recognize as “constitutional”? The question is thorny. In Crisis and Constitutionalism, Benjamin Straumann argues that the Romans did in fact have a pronounced sense of “inchoate constitutionalism,” which we can recognize as long as we can move away from the formal trappings of the modern constitution, like writtenness, judicial review and guarantees of certain rights. Instead, Roman constitutionalism consisted in particular of the entrenchment of certain rules, laws and customs, creating a hierarchy of laws, at the very apex of which was the “fundamental constitutional role of the sovereignty of the Roman people” (36-7). This alone, of all the leges and iura of the republic, could not be changed, not even by the populus itself.
For Straumann, Roman constitutional development is inextricably tied to historical circumstances, specifically the increasing resort to emergency measures in the late republic, and the consequent “increasing importance of private individuals with extraordinary powers” (147). These emergency measures ran the gamut from Tiberius Gracchus’ deposition of the tribune Octavius, through Sulla’s dictatorship to the senatus consultum ultimum, but together they provided a strong impetus for Cicero and others to recognize the need for a “higher order set of rules, i.e. constitutional order, and set them on a search for the rights and norms that would form its substance” (147). The resulting ideas, which come down to us mostly through Cicero’s political works, rely therefore on the ius-lex distinction, which Cicero refined into a distinction between a political and pre-political state of constitutional evolution. The late republic, as Cicero saw it, descended into a pre-political state of lawlessness; the answer, therefore, was to reinforce and institutionalize the constitutional order.
In itself, this is an appealing idea, not least because Straumann insists on taking seriously the expressions of contemporary Romans on the crises of the republic. So too is the idea that the constitution became the focal point of a “growing body of writing” focused on the crisis of the republic in constitutional terms. In times of trouble, it stands to reason that people turn to question and explore the basic rules of the political game, as events from #indyref to Brexit and the recent US election have shown. Nor does constitutional thinking seem an implausible term by which to describe or understand the crisis of the republic: in the cases of Tiberius Gracchus’s tribunate, Sulla’s dictatorship, or Caesar’s autocracy, the questions our sources pose are in large part ones of institutional process, legitimacy, and decorum; in other words, they are all questions about what could be accommodated within the rubric “res publica.”
The division of the book is step-laddered, with its three parts addressing, respectively, the evidence for constitutional thought in the late republic, the body of theory that arises from the crisis, and finally the reception, or more precisely, continuation of that thought in early modern Europe (the epilogue touches on the US as well). This means that the three parts will attract slightly different audiences: Roman historians will find the first section most intriguing, political philosophers will find their métier in the second, and reception scholars will find the last part most congenial to their interests. As such, Crisis and Constitutionalism, makes a comprehensive and compelling contribution to the study of late republican politics and offers a fresh angle from which to explain the relentless systematization efforts of the Augustan age.
Some crucial issues, however, have not been suitably resolved. Perhaps the primary one is the problem of rhetoric. Straumann laudably takes the Romans at their word, but the book is sometimes too happy to assume that performance, intention, and reception are all consistent. For instance, Straumann suggests that resistance to Tiberius Gracchus was based not on the agrarian law, but on his deposition of Octavius, which rendered obsolete the constitutional limitations of what the assemblies could rightfully decide on. Underlying this line of argument, however, is the assumption that the Romans collectively either knew the right answer or actively tried to work it out, whereas in fact as a society they seemed to embrace the state of flux that dominated the political discourse: the Gracchi were both villains and heroes, depending on whom you asked, when, and in what context. Likewise, Opimius’ acquittal may have been due to the constitutional arguments brought by Carbo, as Straumann argues (59), but it may have also been due to Opimius’ clout, or bribery, or other reasons now lost to the record. In other words, while it is important to take the Romans seriously when they observe things about their own culture, we cannot ignore the common finding that internal observers can either miss a point of interest altogether, or describe the problem in terms which they find persuasive or flattering or simply more interesting than the alternative. Caution is all the more important when the internal observer is Cicero, a man of compelling voice and prodigious output, but nevertheless only one man, and not necessarily the voice of a generation at that, however much he shapes our view of the republic.
The second issue is chronology. Straumann suggests that the constitutional “normative yardstick” (62) developed out of the crises of the late republic, as questions of legitimacy, emergency powers, and the “constitutional locus of sovereignty” acquired “an urgency unheard of before 133 B.C. or after Actium” (63)—and there is much truth to this. However, it is also the case that while we know very little about the middle republic in comparison to the better documented period after 133 B.C.; what we do know suggests that the problems of the late republic were built into the system almost from its foundation. People like Scipio Africanus and Flamininus stretched the limits of what Roman society was willing to tolerate, and while they were more or less successfully brought back to the fold, the difference between them and Sulla, Caesar, or Pompey was in degree and not in kind. The system of aristocratic competition demanded that individuals amass ever-growing personal and political fortunes, and historical circumstances gave them the opportunities to transform political clout into a cult of personality. With Hannibal at the gates, Rome suspended temporal limits on the magistracies, and with Hannibal gone and empire acquired, it cemented the extension of office into law and practice. Earlier still in Roman history, the class tensions of the struggle of the orders resulted in constitutional clashes just as urgent for those who participated, even if they did not, like Cicero, leave behind a body of scholarship.
One of the book’s great strengths is its chronological sweep, running from Aristotle to the Enlightenment and back again. However, despite the focus on reception, each of the sections stands almost in isolation, with little by way of sign-posting to explain how the parts connect either to each other or to the argument as a whole. This is frustrating for two reasons. First, Straumann does such a good job of introducing a new canon of thinkers on the crisis of the republic that one wants more by way of introduction. Second, in a book so heavily devoted to the interplay of historical and constitutional developments, more could have been made of the comparison between Greece and Rome (there is hardly any mention of the jurists to parallel the graphe paranomon, though note p. 47 on forensic argument’s function as a “bridge for constitutional thought to cross from political thoughts into the institutional reality…”), or of the Romans’ own tradition of republican virtue (antiquis moribus, etc.), which Straumann seeks to displace as a dominant explanatory paradigm.
This is a dense book, and generally well-written. An inconsistency about using Latin or texts in translation, however, will frustrate many readers: for example, when terminological problems are discussed (as in the discussion of ius on p. 61), and likewise the decision to use a 1606 Latin translation of Jean Bodin in chapter 8. There are instances of over-writing, especially in chapter 2, where the argument is perhaps the most difficult to construct. Some are born of over-precision: “late in the last third of the second century B.C.” (74) surely could have done without the last third, while calling the decemviri “the so-called Ten Men” (75) turns caution into comedy. Conversely, other places might have done with more precision: saying that the SCU was not meant to curtail anyone’s right of appeal (93) seems naïve in light of what actually happened; whatever the senate meant, Roman citizens died without due process, much less the right of appeal. And when discussing Cicero’s De Republica and De Legibus, to suggest that “Scipio’s historical Roman republic is the ideal, not a mere second best” and can be re-established, ignores the fact that Cicero makes his Scipio concede that monarchy is in fact the best form of constitution. Finally, to suggest that the assemblies, constituted as the populus Romanus, could not legally render obsolete fundamental constitutional precepts ignores the lessons of the twentieth century, which have shown clearly that assemblies and parliaments are more than capable of voting themselves out of power. Nor, as the Roman example itself shows, do the assemblies even need to vote themselves out of existence to be rendered null and void: elections in the assemblies continued under the emperors, long after de facto sovereignty had moved to the Palatine and princeps.
The case for constitutional thought in Rome is a tricky one to make, but for all the pitfalls it is worth making. The change Rome underwent between the birth of Cicero and the death of Augustus was profound and irrevocable, and the question of whether the republic fell or was pushed to its death remains a perennial favorite at the end of surveys of republican history, and for good reason. To that end, this book articulates much evidence pertinent to this complicated question, and offers a useful terminology with which to describe its components. Scholars looking for a selective survey of constitutional thought in classical and early modern Europe will likewise find much of value in it. Most importantly, the timing of Straumann’s intervention could hardly have been better. Shorn of its subtitle, Crisis and Constitutionalism could refer to a remarkably wide range of developments across the globe, developments that attest to the continued relevance of Roman political thought today.