Isn't it possible that the rational voter model can be amended to account for civic virtue?
G.K. Chesterton once said “the act of defending any of the cardinal virtues has to-day all the exhilaration of a vice.” Finding our own time still more ill-disposed towards vindicating almost any virtue, I was puzzled at first to find so little exhilaration in Valentina Arena’s Libertas and the Practice of Politics in the Late Republic. This is the more unfortunate because Arena is dealing with what, to me, is the issue for the Romans: the corruption and confusion of their civic virtues between 70 and 52 B.C.
Arena’s contextualist methodology, witnessed by a heavy reliance on Quentin Skinner throughout and the epilogue’s engagement with Ludwig Wittgenstein (a major influence on Skinner), explains why we do not encounter much urgency to uncover the reasons for the demise of Roman liberty. For Wittgenstein, Skinner, and Arena, meaning depends on time and place. What is “liberty” to the Romans of 70 to 52 B.C. is not “liberty” to us today, nor even to the Romans of the 40s B.C. Thus a divide deeper than language separates the Roman from the modern. Because of this methodology, Arena denies that the Romans’ loss of their liberty has any bearing on the fight for liberty in any other, much less our own, age.
While the book’s contextualism is a limitation, it also makes this work much more valuable than the average dissertation-turned-monograph. We need not sieve through the regulation detritus of secondary scholarship, but instead are treated in the first chapter (entitled “Roman Libertas”) to a well-organized collection of primary sources, literary and material, on liberty.
Contrary to modern conceptions of liberty as an availability of choices, libertas in ancient Rome referred to a status of non-slavery. The community granted, and the law guaranteed, this status. This leads to some interesting phenomena in Roman law, from the retention of slave-status for those manumitted domini voluntate (by their master’s wish) to the servile treatment of cowardly soldiers as an acknowledgement of a status independent of the commander’s judgment. That is, there existed formal recognition that those unwilling to take up the responsibility of liberty do not, in fact, possess it. The chapter outlines the various states–freedman, bondsman, filiusfamilias, wife––that stand somewhere between slavery and the communal, familial, and civil libertas enjoyed by the paterfamilias.
The second chapter, “The Citizens’ Political Liberty,” turns to civil libertas and uncovers how it stood in late Republican Rome as the guarantee of an individual’s overall libertas. Arena outlines how libertas was protected by certain rights [iura]: 1) provocatio, the right to adjudicate a magistrate’s decision to the assembly, 2) appellatio, the right to appeal for a tribune of the plebs to interpose himself between the citizen and the arbitrary power of a magistrate, and 3) suffragium, the right to vote. Related to suffragium, the legislative power of the tribune of the plebs, whether to initiate or to block legislation, ensured that laws, rather than subjecting citizens to another’s interference, served as a means of exercising their libertas.
But this chapter overlooks ways in which these iura did not protect the individual citizen, rather than the populus, according to Arena’s standard of libertas as non-interference. Provocatio ad populum, to give it its full title, protected a citizen only against magistrates. Any decision by public courts or by assemblies against a private citizen had no process of appeal. The chapter could also benefit from a consideration of how the distribution of citizens in the comitia centuria and in the comitia plebis tributa determined the scope of an individual citizen’s libertas.
For example, if suffragium established equality in liberty among individual citizens, the conferral of a convicted citizen’s enrollment in a particular tribe to the prosecutor would have been superfluous. Furthermore, the conception of law as the iussum populi [order of the people] confines the debate over the efficacy of plebiscita to a footnote, which in turn ignores the overturning of the lex Hortensia (287 B.C.) twice in the two decades preceding the scope of Arena’s study (70-52 B.C). While the libertas of the populus clearly depends upon what Arena calls the “juridical matrix,” there is no proof that the legal understanding of populus was or can be equated with civitates in a mixed constitution such as existed in Rome.
In the third chapter, “The Liberty of the Commonwealth,” Arena turns from the individual citizen to the conception of libertas for the res publica. She finds that “an essential condition for the liberty of the commonwealth was that the people had to be the source of law.” Again, individual citizens matter not so much as the hypostatized idea of the populus.
Within this common framework, two political traditions, the optimate and popularis, developed divergent philosophies about how the populus was the source of law. In the tradition of the optimates (“best men”), a mixed constitution checks the dominatio of the majority while maintaining a connection between the people and their laws. In the popularis tradition, a redistribution of wealth forms the prerequisite to any popular assembly actually able to guarantee the commonwealth’s liberty. While the attempt to reconstruct the popularis political philosophy from an absence of direct sources may not convince all readers, Arena does an excellent job of highlighting the opportunism of Roman politicians who shifted between optimate and popularis rhetoric as the situation saw fit.
In the fourth chapter, “The Political Struggle in the First Century B.C.,” Arena shows how Roman politicians employed these two theories in three practical areas: 1) the imperia extraordinaria, 2) the senatus consultum ultimum, and 3) land distributions. The first and last of these the optimate tradition opposed, because a land commissioner or an extra-constitutional general threatened the delicate matrix of liberty embedded in a mixed constitution. The second, the senatus consultum ultimum, the popularis tradition opposed because it suspended provocatio, one of the rights that guaranteed the liberty of a citizen, as Arena showed in the second chapter.
The brevity of the fifth chapter, “Political Response and the Need for Legitimacy,” bespeaks the paucity of sources from which Arena can draw to construct the popularis political philosophy from optimate writings. In the main, this consists of optimate rebuttals to the popularis charge of dominatio of the populus by an oligarchy. And while it is true that where there is smoke, there is fire, this tells us very little about who started the fire or with what incendiaries.
The epilogue continues the discussion of libertas, supposedly, into the 40s B.C. Arena, however, skips over the conflicts of 52 to 45 B.C., taking up her survey of Roman libertas again in the conflict between Antony and Caesar’s assassins. Even here, the thread of her argument is lost in a lengthy discussion of Marcus Terentius Varro’s De Lingua Latina and the ways in which words change definition. This occupies the greater part of the epilogue and is a poor substitute for the amazing amount of sources from the 40s that otherwise more directly address the war for liberty.
Ultimately, Arena argues that libertas retains its meaning even when the framework for that meaning—that is, the rule of law—is dismantled because “the people” changed its conceptual framework. What this ignores is the more dramatic change in Arena’s “language-speaking community” that would explain why the definition of libertas changed in the Latin-speaking community. In October of 42 B.C., two opposing groups in the Latin-speaking community met on the plains of Philippi; for those on the losing side, the watchword was libertas.
As Arena acknowledges, the book began as a dissertation and, as many such books do, it suffers from dissertation-ese, stilted sentence construction, repetition of key ideas, the citation of superfluous authorities, a few pages where footnotes push against the main body of text. Also impeding the flow of the book are its infelicities of style and its plentiful typos. But more fundamental is the prose-anesthetizing effect of the author’s Wittgensteinian methodology, as in this abstruse passage from her epilogue:
What took place was a change in social perception: by embracing the rhetorical description of those who supported the “senatus consultum ultimum,” the speaking community legitimated actions that earlier on had attracted strong criticism.
What took place? The dissolution of the res publica. To translate, she is talking about the collaborationist gestures made by those too timid to follow the example of Cato. “Those who supported the ‘senatus consultum ultimum’” means the optimates. “The speaking community” means the populus Romanus. “Legitimated actions”? The abrogation of the law, for example, when Pompey was elected consul without a colleague in 52 B.C. or when the 19-year-old Octavian seized the same office by force in 43 B.C., or, worse, the proscriptions of the Second Triumvirate, which unlike the first, had been granted legal status.
At her finest, Arena lets Cicero speak for himself, drawing together, arranging, and making sense of all the various moments when this prolific author spoke about liberty. In many ways, then, we are to commend Arena for providing us with a sourcebook on Roman libertas. It remains to us, provided with this material, to do what the contextualist would deem impossible: namely, to survey the Roman foundations of our liberty today. Here lie cracks in the foundation that we should repair; here lies the outline for a mansion on which we narrow-minded squatters have built a hovel.