For Smith, commerce is not about consenting to contracts but individuals surfing waters highly charged with solemnities of ritual, trust, and reverence.
In his ambitious and important book, Benjamin Straumann attributes the origins of constitutional thought in the European tradition to Cicero’s writings of the fifties BC. He then traces the development of this thought through the Enlightenment to the debates that accompanied the ratification of the U.S. Constitution in the 1780s.
The later part of Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution closely parallels two other recent works, Daniel Lee’s Popular Sovereignty in Early Modern Constitutional Thought (2016) and Richard Tuck’s exceptionally lucid The Sleeping Sovereign (2016). What sets Straumann’s book apart from these is the depth of his argumentation about classical texts, his adroit reading of Marcus Tullius Cicero (106-43 BC), and his denial of “constitutionalism” as a feature of the political thought of Plato or Aristotle.
Straumann’s discussion of the influence of Greek political thought on Roman will be one of the book’s most important and controversial aspects. It is often assumed that Greek theory had a significant impact on Roman political theory, in part because the earliest discussion of the Roman constitution, one which Cicero cites in the De Republica, is Polybius’ adaptation of the theory of the alternation of constitutions (democracy/mob rule—aristocracy/oligarchy—monarchy/tyranny) to build his theory of the mixed constitution which is resistant to the otherwise inevitable transitions. Also, Cicero routinely advertises his engagement with a wide variety of Greek philosophic schools, especially the Academic descendants of Plato, who is often cited in the De Re Publica (The Republic) and the De Legibus (The Laws), two works whose titles indicate his engagement with Platonic thought.
The Athenians and Pre-Political Rights
In the author’s view, what Cicero owes to Greek thought is less important than what he does not. What is important for Straumann is that Cicero builds his model upon a “natural law” foundation which depends upon pre-political rights. This differs from Polybius, who believed that the state is founded upon the human desire for justice, “that the development of justice and the transition from rule by power and strength alone to just rule, underlines the role of humans’ natural resentment at injustice.”
The prevention of injustice is not quite the same as asserting that there are basic legal rights that have to be defended. Cicero’s ideal state differs from that of Plato because the Platonic state exists to promote virtue and the “legitimacy of government rests on the extent to which it succeeds in making the city’s citizens virtuous,” hence “there is no space for any extra- or pre-political happiness, nor for any normative claims vis-à-vis the state that are not themselves based on the rules of the polity.”
The case against fundamental Aristotelian influence is more complex. In Aristotle’s view, a state is formed when several villages unite to form a single complex community, or polis, large enough to be self-sufficient. It originates from the needs of life and continues so long as it ensures the good life and enables man to express his nature as a political animal. That said, Aristotle also holds that the polis is, by nature, prior to the individual who would not be complete or exist without it. Thus, since the natural goal of the individual is the good life, that goal can only be obtained through participation in the polis. The goal of the state is not, in Straumann’s analysis, to protect the individual’s pre-political rights.
What then of Aristotle’s understanding of a politeia, the Greek word ordinarily translated into English as “constitution”? Aristotle wrote that “a politeia is the arrangement of the magistracies in a polis, especially the highest of all. The government (politeuma) is the ruler, absolutely, of the city, the politeuma is the politeia.”
What this means, according to Straumann, is that Aristotle, lacking a concept of pre-political, inviolable rights for a constitution to protect, understands a politeia as being “merely the correct ordering of magistrates, aimed at granting political rights with the right character disposition, i.e. to the virtuous.” It would be possible quibble with this, since what it seems to me that Aristotle means is that the politeia is the correct ordering of magistrates for the ordering of a specific citizen body. (Nothing here about virtue or the good life, which is obvious from the next sentence in which Aristotle says that “just as the common people are in control in democracies, the few are, by way of contrast, in control in oligarchies, so we say that the politeia is one or the other of these.”)
In the next section of his discussion of Greek political thought, Straumann grapples with concepts such as the “unwritten laws” (agraphoi nomoi) that govern moral behavior, and the Athenian legal action against a person for moving an illegal motion in the governing assembly (graphê paranomon). The former are vague and cannot dictate actions (the whole point of the Antigone is that appeal to agraphoi nomoi against statute gets you buried alive). The graphê paranomon is an Athenian legal process intended to stifle demagogues which can succeed by proving that a law a person has managed to get adopted violates other laws and so is illegal. Neither qualifies as a constitutionalist concept, in Straumann’s view, which is not unreasonable if one accepts that “constitutionalism” must be based upon the defense of pre-political rights.
Straumann’s case would perhaps be stronger if he had considered the fact that, in Athens, decisions about a graphê paranomon were handed down in a dikasterion (“place for justice”). Aristotle also wrote that “the judicial system (dikaiousynê), on the other hand, is an element of the state, the administration of justice (dikê) is the ordering (taxis) of political association (koinônia), the judicial system is the determinant of the just (dikaious).”
The contrast in this sentence is with the state of disorder and injustice (adikia) described in the previous sentence. Straumann argues that what Aristotle means is that justice is a product of the state, whereas another reading of this passage, differentiating between “the administration of justice” (dikaiousynê) and “the just,” dikaious, as the thing administered, implies justice’s prior existence.
Given the view that justice comes from Zeus, the most powerful of gods in foundational Greek texts such as Hesiod’s Works and Days and the Homeric poems, some consideration should be given to the possibility that if injustice preexists the state, so might its opposite constitute a pre-political right that it is the aim of a state to guarantee. Such an understanding might therefore align better with Aristotle’s statement (in the Nicomachean Ethics, which Straumann does not discuss) that there is a distinction between “political justice” and “absolute justice,” with political justice existing between free and equal people living a common life. “Absolute justice” appears to preexist the state, suggesting that in Aristotle’s view justice is not dependent upon the existence of the state.
The Romans and Popular Sovereignty
The proposition that the Greeks lacked a notion that a political system should defend pre-political rights is crucial for Straumann’s case that such “constitutionalist” doctrines originate in the late Roman Republic. This, as we have seen, is problematic. In Straumann’s treatment of the Roman evidence, two further points obtrude. The first is how Cicero sees the Roman constitution and its government; the second is whether his thought is original. As far as the first goes, Straumann is very clear that Cicero regarded the Roman citizen body as sovereign, and that the people delegated authority to govern to magistrates whom they elected. These magistrates were subordinate to the people’s will. He is right that this is what Cicero thinks.
Straumann’s reading of Cicero’s work appears to have been guided by Jean Bodin, who arguably understood Cicero a good deal better than have many contemporary classical scholars. The view that a theory of popular sovereignty was at the heart of Roman political thought stands in stark opposition to the widespread efforts on the part of Roman historians to eliminate the notion from Roman thought altogether.
Indeed, readers of Straumann who turn, for instance, to Henrik Mouritsen’s 2017 book Politics in the Roman Republic will find that many of the passages that Straumann reads so well, are ruled irrelevant to the understanding of Roman politics. Anyone seeking to understand Republican political theory (and practice) will find in Straumann a welcome relief from Mouritsen’s postulation that for “the large majority of citizens, politics probably represented a remote and separate sphere which had little bearing on their daily lives, while the minority that did take part seem to have displayed what can only be described as ‘subject’ behavior, largely conforming to the agenda set by the political class.”
Straumann sees Cicero’s distinction between ius/mos or underlying legal principle on the one hand and statute law, lex on the other, as a key ingredient in true “constitutionalism.” As early as his speech for Aulus Caecina in 68 BC, Cicero asked the jurors what would happen if the people passed a law enslaving him to another man as a way of getting them to understand that laws that are against ius will not be laws. In making this argument, he quoted a standard clause which stated si quid ius non esset rogarier, eius ea lege nihilum rogatum, “if something is passed that should not be ius, nothing of this sort in that law (lex) will be valid”—which implies the existence of a category of things contrary to the legal order and thus that lex is governed by ius.
Cicero would repeat this same argument in later speeches. In the Republic, Cicero further articulated this notion by allowing that property rights preexisted the state, and that the protection of property rights was a purpose of the state. Given the importance of Cicero to the writers whom Straumann’s discusses in the last third of his book (especially Niccolo Machiavelli, Bodin, and the framers of the U.S. Constitution), the case that Cicero shaped later constitutional thought appears to be incontrovertible.
An extension of Cicero’s views on property rights is the belief that the state can defend itself against individuals who threaten its existence. The implication of this position is that a man who threatens communal property rights can be killed without appeal to due legal process. To what extent is Cicero’s view that property rights are the basis of the state, and the protection of the individual’s right to due process not, exceptional?
This issue is key to Straumann’s argument that Cicero devised modern constitutional thought on his own. Under Roman law, the right to due process was guaranteed by provocatio, the right of appeal to the people against the arbitrary action of a magistrate. Cicero’s political career was defined by his spectacular violation of due process when he presided over a meeting of the Senate on December 5, 63 BC. The Senate passed a decree allowing Cicero to execute a group of senators who had been arrested for being in treasonable communication with representatives of a Gallic tribe, encouraging a revolt intended to support the uprising, already under way, in which their colleague, Catiline, was the leading figure.
The men in question were manifestly guilty, but did that give the Senate, which was not a duly constituted law court, the right to kill them without permitting their appeal for a trial before the Roman people or one of the Roman people’s duly constituted courts (there was one specifically designated for hearing cases of treason)?
Cicero based his claim that the Senate could order the conspirators’ execution upon a decree the Senate passed a few months earlier ordering the magistrates to take actions ensuring that the state come to no harm. But what did this mean? According to one view, it meant that the Senate could order death sentences without provocatio. According to others it meant no such thing, and the issue had been argued earlier that year in a bizarre show trial where a man named Rabirius had been tried for murdering the Roman tribune Saturninus in a riot, started by Saturninus, 37 years before. The action had been halted after some theatrical posturing on both sides of the question (a speech of Cicero’s, defending Rabirius and the right of people acting under such a decree of the Senate to kill Roman citizens, survives).
Enter Julius Caesar
Cicero’s position was that provocatio is not a pre-political right. Not everyone agreed. Among those who did not agree was the era’s most successful politician, Julius Caesar, a motivating force behind Rabirius’ trial. He spoke against the execution of the Catilinarian conspirators, and later declared war to defend the rights of tribunes when the senate passed another such decree, which he, alone amongst our sources, calls the senate’s “ultimate decree.”
It is arguable that Caesar’s position that the “ultimate decree” did not give magistrates the right to kill people without a trial was also supported by another of the most important men of the era, Gnaeus Pompey. Acting under another “ultimate decree” to restore public order in 52 BC, Pompey did not order summary executions and did arrange for people involved in the disorder to stand trial.
Cicero spoke in defense of one of these men, Milo, and Straumann does a good job of discussing Cicero’s argument that there was a Roman tradition that allowed his client to kill a man who was a threat to the social order, in this case a man named Publius Clodius, who had once engineered Cicero’s exile for his actions in 63. Straumann might however have placed more stress on the fact that the jury did not accept Cicero’s argument and Milo was exiled. (The surviving speech is a vastly expanded version of the one Cicero delivered, so we can’t really know which of Cicero’s arguments the jury rejected.) Cicero was certainly not the only person talking in what Straumann regards as “constitutional” terms.
The author’s belief in the originality of Ciceronian thought may ultimately be unconvincing, and that points to a wider problem with his thesis that constitutional thought stemmed from Cicero’s response to the political crisis of the Roman Republic. As Straumann rightly observes, the debate over the suspension of provocatio under an “ultimate decree” goes back to the first use of this decree in 121, which would mean that some form of constitutional debate such as that which he outlines in the speech for Milo was current even then.
Another issue, again arising in the later second century BC, is that of the oath inserted into laws that bound magistrates to follow the instructions of the people in a lex. Texts of such clauses survive in a number of late second century BC legal documents preserved through inscriptions which are clear statements of a constitutional principle of popular sovereignty.
Straumann might also have considered the fact that when Rome established colonies (a centuries-old practice by Cicero’s time), it drew up charters laying out the way they were to be governed. While surviving examples of such texts from the Republican period may initially strike their readers as badly organized lists of procedures, they nonetheless reflect both the sort of thinking about how a state should run that appears in Cicero’s model constitution in Concerning Laws, and the long process through which the Roman state defined the necessary aspects of government.
Even if Straumann’s argument that Cicero invented Roman constitutionalism is suspect, this does not decisively undermine the importance of his reading of Cicero’s work or of his analysis of the way that Cicero was read later. Straumann succeeds in drawing attention to the legacy of Roman political thought, lending it an abiding importance for students of political institutions in any age.
 Aristotle, Politics 1278b9-11. ἔστι δὲ πολιτεία πόλεως τάξις τῶν τε ἄλλων ἀρχῶν καὶ μάλιστα τῆς κυρίας πάντων. κύριον μὲν γὰρ πανταχοῦ τὸ πολίτευμα τῆς πόλεως, πολίτευμα δ’ ἐστὶν ἡ πολιτεία. My translation differs slightly from the one used by Straumann in that he translates πολίτευμα δ’ ἐστὶν ἡ πολιτεία “and the government virtually is the constitution,” as I see it the Greek allows of no qualification such as “virtually.”
 Aristotle, (Politics 1253a 37-39). Straumann discusses this passage on page 210, but readers will note that his translation “[Justice] is something political (ἡ δὲ δικαιουσύνη πολιτικον)); for the administration of justice, which is the determinant of what is just, is the principle order in political society,” is rather less literal than the one offered here, which is because the meaning of Aristotle’s sentence, ἡ δὲ δικαιοσύνη πολιτικόν· ἡ γὰρ δίκη πολιτικῆς κοινωνίας τάξις ἐστίν, ἡ δὲ δικαιοσύνη τοῦ δικαίου κρίσις is not immediately self-evident. I take the noun (dikê), to mean “the administration of justice” and the participle (dikaiousynê) to means “judicial system” as it implies the action of administering justice while dikaios, which is an adjective whose essential meaning is “that which accords with dikê” is used in a substantive sense, to mean “justice.” Taxis is also difficult as the meaning I use here “ordering” is paralleled at Aristotle, Politics 1278b 10; the word may also mean “constitution” as in Aristotle Politics 1271a 40; 1272a 4; 1272b 40; 1273a 21; 1274b39. What is most important is to keep the logical order of the clauses to keep the logical order of the clauses intact rather than to invert the second and third clauses, which is what Straumann does, and to distinguish between participles and nouns, which he does not do.
 I am indebted to Professor D.D. Phillips for this point.
 For further discussion see Louise Hodgson, Res Publica and the Roman Republic: “Without Body and Form” (Oxford University Press, 2017).
 Marcus Tullius Cicero, On Behalf of Caecina, p. 96.
 Marcus Tullius Cicero, Concerning His House, pp. 77-79; On Behalf of Balbus, p. 31.
 For further discussion see two other recent books, Gregory K. Golden, Crisis Management in the Roman Republic: The Role of Political Institutions in Emergencies (Cambridge University Press, 2013) and Valentina Arena, Libertas and the Practice of Politics in the Late Roman Republic (Cambridge University Press, 2012).
 M.H. Crawford, “Roman Statutes,” Bulletin of the Institute of Classical Studies, Supplement 64 (1996), n. 7; 8; 12.
 See Crawford, “Roman Statutes,” n. 24-25.