Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution

433 Pages·2016·29.616 MB·English

by  Benjamin Straumann

Crisis and Constitutionalism

Crisis and
Constitutionalism
Roman Political Thought
from the Fall of the Republic
to the Age of Revolution
z
BENJAMIN STRAUMANN
1
1
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Library of Congress Cataloging-in-Publication Data
Names: Straumann, Benjamin, author.
Title: Crisis and constitutionalism : Roman political thought from the fall
of the republic to the age of revolution / Benjamin Straumann.
Description: New York, NY : Oxford University Press, 2016. | Includes
bibliographical references and index.
Identifiers: LCCN 2015028298 |
ISBN 978–0–19–995092–8 (hardback) | ISBN 978–0–19–995093–5 (e-book)
Subjects: LCSH: Constitutional history—Philosophy. | Roman law—Influence. |
Constitutional history—Rome. | Rome—Politics and government—265–30 b.c.
Republicanism—History. | Political science—Philosophy. |
BISAC: HISTORY / Ancient / Rome.
Classification: LCC K3161 .S767 2016 | DDC 342.37—dc23 LC record available at
http://lccn.loc.gov/2015028298
1 3 5 7 9 8 6 4 2
Printed by Sheridan, USA
In memory of my parents,
Ruth Reichstein (1933– 1989) and Bruno Straumann (1924– 2000)

Contents
Preface and Acknowledgments  ix
Introduction: The Fall of the Roman Republic and the Rise
of Constitutional Thought  1
PART I: Inchoate Constitutionalism in the Late Roman Republic 23
1. “Not Some Piece of Legislation”: The Roman Concept of Constitution  27
2. Infinite Power? Emergencies and Extraordinary Powers
in Constitutional Argument  63
3. “The Sole Bulwark of Liberty”: Constitutional Rights at Rome  118
PART II: A Hierarchy of Laws: Roman Constitutional Theory 147
4. Cicero and the Legitimacy of Political Authority  149
5. Greek vs. Roman Constitutional Thought  191
PART III: The Limits of Virtue: The Roman Contribution to
Political Thought  239
6. The Roman Republic as a Constitutional Order from the Principate
to the Renaissance  241
viii Contents
7. Neo- Roman Interlude: Machiavelli and the Anti- Constitutional
Tradition  260
8. Jean Bodin and the Fall of the Roman Republic  278
Epilogue: Constitutional Republicanism, the “Cant- Word” Virtue
and the American Founding  303
Bibliography  343
General Index    373
Index Locorum  403
Preface and Acknowledgments
Those living in political orders that are also constitutional orders tend
to take the ideas developed by Roman constitutional thought for granted.
Constitutionalism, like vaccination, perennially runs the danger of falling vic-
tim to its own success. But, as Roman writers and thinkers of the last century of
the Republic knew all too well, political orders can and do collapse. The crises
and eventual collapse of the Roman Republic were one of the pivotal moments in
European political and intellectual history. How and why did this vast, success-
ful republican political order fail? From Cicero and his contemporaries onward,
this question has attracted the interest of some of the best and most interesting
political thinkers. One influential answer, already put forward by some of the
ancients, was that luxury, corruption, and the loss of virtue were to blame. A very
different answer was lurking in Roman historiography, Polybius, and, more
explicitly, in some of Cicero’s philosophical works: the crises of the late Republic
had been of a constitutional nature and could be solved by constitutional means
alone. The idea of a constitutional order, that is to say, a political order based on
rules and institutions that are themselves not subject to the political process; are
more firmly entrenched than mere legislation; and rest on a normative justifica-
tion that is substantive, not merely procedural— this idea found resonance in the
history of political thought as a result of, and as an answer to, the crisis of the
Roman Republic.
Roman constitutional thought could build on an inchoate constitutionalism
already implicit in the Roman republican political order and its highly legalized
political negotiations. It was further developed and made explicit in Cicero’s
works, and found a very perceptive audience in all those political thinkers from
the fourteenth century onward who preferred the Roman republican order to the
Empire. The fall of the Roman Republic remained the central point of interest
for thinkers who sought constitutional remedies to problems of political order.
Jean Bodin, usually misunderstood as simply an absolutist thinker, was really a
key exponent of the tradition of Roman political thought emanating from the