The Roman Political Model: From Res Publica to Imperium

If the history of the state and of public law in the West undeniably traces its roots to Rome (Johnston 1997), it is because the Greek polis lacked the institutional capacity to organize and control an extensive territory because of the fact that its system of government and judicial structure were totally ineffective beyond the walls of the city. Thus, when the population swelled and economic resources were insufficient, the surplus of citizens abandoned their polis to found another in a new location so as to avert social conflict (Davies 1993, 24)⁴ Greece was a relatively poor territory, spurring many Greeks to emigrate to found colonies along the coasts of the Mediterranean which, once founded, did not maintain political ties with the Greek polis from which they had proceeded.⁵ Rather, they became independent for all intents and purposes and, as a result of the anarchic structure of interstate relations and the fact that international law among the polises was barely existent (Eckstein 2006, 37). Ancient Greece was never to become a great, unified state. This was to precipitate its decline at the close of the fourth century bc, in the wake of Alexander’s fleeting empire.⁶

The Roman Empire constitutes a towering landmark in the history of public law in the West because it successfully adapted its model of political and judicial organization to the circumstances of its expansion. Unlike the Greek polis, as the Romans conquered territories, they managed to incorporate them in a stable and structured manner (Briscoe 1986) into a powerful constitutional framework, centered around the Roman civitas, although this process of integration was gradual and fraught with difficulties.

It was progressive because it was successively based on provincial divisions and the development of an urban network that was the mark of a strong and self-assured imperial power reflecting the willingness of Western peoples to cooperate in the process of their own Romanization (Drinkwater 2002, 351), and which fast spread throughout the territories dominated by Rome, with newly founded colonies and native cities transformed into urbes organized according to Roman models (municipia).⁷ The integration of the new territories, however, was difficult, because it carried with it a profound shift in the system of government and administration of the Roman state; the crisis which the Roman version of the polis, the Republic, would suffer in the first century bc was a direct consequence of the Romans’ spectacular territorial expansion.⁸ This was the period of what have been called the “civil wars”, lasting for almost 60 years in the first century bc, between the dictatorship under Sulla (86 bc) culminating in Augustus’s victory over Mark Anthony at Actium (31 bc).

Augustus is a key figure in Western history for having laid down the foundations of a new form of political organization which continues to inspire and shape our Western societies. Having brought peace to a turbulent time, he is commemorated every summer in August, the month named for him. Despite wielding uncontested authority over Rome, Augustus was clever enough not to abolish the Roman Republic, seeking instead to protect it in his capacity as “first citizen” (princeps). However, Augustus would, in fact, end up paving the way for a monarchical regime as the era’s rulers would become emperors in the second century, and absolute lords during the age of the Dominate, following the reforms introduced by Diocletian (284–305 ad).

It seems that the family structure based on the gens, also constituted the basis of Roman society. The Latin word gens referred to a group of families who had, initially, lived in a area, in a given territory, and considered themselves descendants of a common ancestor, therefore, sharing certain religious practices. It is possible that at an early stage, the gens was an independent political unit. In fact, some vestiges of this primitive condition still persisted in the early days of the Republic; we know through Titus Livius that in the years 479–477 NC the gens Fabia, with the Roman Senate’s permission, led a war against the Etruscan city of Veii (Livius 2002, 2.48).¹⁰ It is impossible, however, to know what the gens’ internal organization was like during this period. Chances are that the gens was a loose association of families who chose a common chief, only to deal with emergencies. Whatever their original nature, what is certain is that in the Republican period membership in the gens was mainly devoid of legal significance, although there were exceptions. Thus, any person belonging to a gens had a right to seize the property of any other member who died without heirs. Membership in a gens also entitled one to claim the guardianship of a minor or unfit individual belonging to the same gens who did not have relatives.

In Rome, as in other Indo-European societies, it appears that the different gentes ended up comprising higher social groups, the best known being the curiae and tribus.¹¹ Unfortunately, little is known of these tribus of the archaic period, except that they were nothing at all like the local “tribus” which would appear later (Taylor 1960). Subsequently, however, in historical times, it is undeniable that said Indo-European structure was reflected in Roman society, specifically in two Republican assemblies: the comitia curiata and the comitia tributa.

Ancient peoples did not conceive the idea of delegating the power to pass laws and decide on policy issues to assemblies of elected representatives. Basically, this was because it was unnecessary, as the political and legal system was manageable directly by the citizens gathered in assemblies within the territorial limits of the old city-state. Rome was no exception. Since the beginning of the Republic, the people of Rome exercised their power through assemblies.

The first Roman assemblies were the comitia, electoral meetings and acts held on a mandatory basis, on specific days, by order of the magistrate in power (Wolff 1995, 39–42). All adult male citizens could participate in them. The oldest were the comitia curiata,¹² although these were not the most important, as they would be followed by the comitia centuriata,¹³ clearly of military origin, which had more relevant functions. At the end of the Republic appeared the comitia tributa,¹⁴ whose essential purview was to appoint the representatives who would ultimately form the most important Roman popular assemblies: the plebeian councils (concilia plebis), which undertook intensive legislative work during the Republican period,¹⁵ especially in the field of private law.

Upon this Indo-European basis Rome developed, between the sixth century bc and the first century ad, its own version of the polis: the Republic.

The Roman Republic was originally a city-state, akin to the Greek polis. It did not opt, though, for the democratic Athenian model, but for an aristocratic one. The great protagonist of Rome’s extraordinary success, at least until the Third Punic War (146 bc) was the Roman aristocracy. And not because it produced famous figures, but because, as a whole, it managed to maintain, until the middle of the second century bc, both a quiet dignity (gravitas), an unusually high ethical standard, great political wisdom, and a boundless tenacity in the face of adversity (Wolff 1995, 26). These factors, along with its selfless patriotism, justified and assured its undisputed leadership.

Rome was never a democracy, either in the Athenian sense or in the current one. The transition from monarchy to republic probably meant no more than the transfer of power from a king for life to some annually elected magistrates (Nicholas 1992, 3–4), a change aimed at assuaging the patricians’ fears of tyrannical governments, like that of Tarquinius Superbus.¹⁶ This transformation, however, did not alter the original thrust of Rome’s legal-public organization, nor did the plebeian movement which, though allowing this social class access to the conduct of public affairs, and leading to the emergence of institutions aimed at countering the oppression by patrician magistrates, did not alter the essentially aristocratic character of the government.¹⁷ Although in theory the Republican magistracies were open to any citizen, in practice they remained in the hands of a few families, both patrician and plebeian, whose members all had in common their status as landowners and holders of wealth, which permitted them the luxury of being able to dedicate most of their time to public affairs, without compensation. In this way, the patricians’ main activity involved their “public careers” (cursus honorum), which assured them significant social prestige, thereby practically monopolizing public offices (Lintott 2002, 144–146). Only on rare occasions did a homus novus from outside this closed circle manage to reach the highest magistracies. Cicero, belonging to the equestrian order,¹⁸ is undoubtedly the best-known exception.

This lack of democracy was particularly evident in the assemblies. Arising in theory to facilitate the people of Rome’s access to public affairs, in reality they were not democratically composed. The popular assemblies elected magistrates and passed laws, but their power was limited and they were organized in such a way that they could be controlled by the wealthy as they voted in blocks, and there was no difference in their value, regardless of how many people each actually represented (Taylor 1990, 1). Political power, then, was concentrated in the hands of the landholding class, which virtually monopolized the seats in the Senate, which is why it came to be also known as the senatorial class.¹⁹

The people only acquired a measure of political influence during the turbulent years of the civil war which shook Rome in the first century bc, though even then the masses were mere instruments in the hands of demagogues—usually aristocrats—who manipulated them (Lintott 2002, 199–207). In addition, this “revolutionary” period led to the establishment of a new form of monarchical government which seized from the masses their last remnants of power, and gradually undermined the aristocracy while increasing the burgeoning bureaucracy surrounding the emperor.

Although the Roman Republic was never democratic, it was designed to prevent power from falling into the hands of just one person. As a remedy against an individual amassing excessive political influence, the Athenians had invented collegial bodies that were replenished annually, along with the procedure of ostracism. The Romans arrived at the same result through an ingenious system of checks and balances between the various powers, which earned them the admiration of the great Greek historian Polybius (200–118 bc),²⁰ a friend to Scipio Aemilianus, the conqueror of Carthage and the most respected Roman statesman of the second century bc. The institutional system of the Roman Republic did not arise in a conscious and planned-out fashion. The virtually unlimited powers wielded by those who held the highest magistracies (magistrati)²¹ were curbed by control mechanisms, firstly by the very fact that there were several magistrates, who usually pursued careers serving the state (Cursus honorum).²² Secondly, the magistrate post was held only for 1 year, at least in Rome proper. Thirdly, because each magistracy was dual and each official was able to veto the other. Finally, the magistrates were subject to political control exercised by the Senate, the tribunes of the plebeians, and the people themselves through their assemblies, the latter control being most effective, given that the magistrate himself depended on the votes of the assembly to obtain his office.²³ It was, however, more difficult for the assemblies to control the magistrates, as it was more complicated to convoke these bodies. As a result, they proved less effective than the Senate, a stable assembly composed of the city’s dignitaries who would ultimately serve as the collective expression of the Republic and an instrument curtailing political protagonism (Lintott 2002, 86–88).

Rome’s subjugation of Italy, which can be considered to have been achieved in the year 265 bc,²⁴ and its victory over Carthage, culminating in the wars against Hannibal (219–201 bc), made it one of the greatest powers of all Antiquity. After becoming masters of the western half of the Mediterranean, the Romans headed to the East. In a period of 150 years, Rome came to dominate as far as the Euphrates and the Black Sea, with relative ease, and despite the serious internal crises plaguing the Roman state. In this way, Rome ended up taking over the entire Mediterranean basin—which in ancient times meant the entire world.

The Romans were successful at occupying these lands because, besides their military power, they had the ability to divide, weaken and conquer their enemies. In the end, Roman rule was based on an extraordinarily varied and complicated system of alliances and situations of dependence, all revolving around the city-state of Rome. The most singular fact of all, however, was not that Rome was able to conquer so much territory, but that it managed to continue to rule it in a stable manner, creating provinces and naming governors,²⁵ and that they did not hesitate to destroy the indigenous political communities they encountered, whose existence posed a threat to their rule; they did not tolerate alliances or pacts between Rome’s allies and subjects, assuring in this way that each one of the communities they annexed had legal relationships only with Rome itself, all other connections being barred. The establishment of a progressive administrative network in the provinces, consolidated as time elapsed, the control which the metropolis exerted over Rome’s provincial dominions (Ando 2010). This is particularly extraordinary when we consider how relatively few administrators were charged with overseeing the territories integrated into the Roman civitas. ²⁶

The resistance of the conquered populations was also mitigated as another operating principle of Rome’s imperial policy was to let its subjects, as far as was possible, maintain their religion and customs, in addition to an autonomous administration. This was in large part because, at least initially, the Roman city-state did not have the resources to develop a large-scale bureaucratic apparatus. Thus, Rome sent out a relatively small number of governors and procurators, who essentially saw to the regular collection of taxes and the maintenance of internal order (Burton 2002, 423). In any case, this attitude contributed decisively to making Roman domination less onerous upon the peoples they conquered, and facilitated the acceptance of Roman ways and culture, a process known as “Romanization”.²⁷

Rome also consolidated its rule through an intelligent policy of reinforcing the Empire’s borders and building a network of strategic roads and fortified posts in Italy, during the first republican era and later, at the time of the Principate, in the Empire’s frontier provinces. Thanks to all of these circumstances, Rome city-state was able to become an Empire.²⁸

The Roman state model did not evolve from aristocracy towards democracy, as happened in Athens, but from aristocracy to monarchy. This transformation was the result of a gradual process that began at the time of Julius Caesar (100–44 bc), and did not end until the reform of Diocletian (284–311 ad), when the emperors became absolute monarchs (dominus). Triggering this transformation were the civil wars (86–31 bc), whose root cause can be traced to a republican system of government and administration, which was not effectively adapted to accommodate Rome’s extraordinary territorial expansion.²⁹

The most extraordinary aspect of the process described is that the incorporation of new territories into the Roman orbit, not only led the occupied peoples to accept their integration into the Roman model of civilization, but transformed the Roman political constitution itself (Boatwright et al. 2004, 140–145). This occurred because the republican system, designed to govern and administrate the city of Rome, was inapplicable to the massive series of new territories.³⁰

This imbalance meant that, little by little, the protagonists of Roman political life ceased to be the magistrates or the assemblies, or even the Senate. Rather, power was increasingly held by the army, and particularly by the great generals, whose prestige, consideration and wealth, depended upon them incorporating new territories. The price to pay for this new state of things was the outbreak of the “civil wars”, which raged from 86 bc, with the dictatorship of Sulla, until 31 bc, when Octavian defeated Mark Antony at Actium.³¹

After Octavian’s (later to be named “Augustus”) victory, however, the Roman public system of law would never be the same, as Rome’s new leader was politically adept enough to tailor the Roman constitution to the needs of its burgeoning borders, without provoking a radical rupture with the republican regime (Flaig 2011, 67–84).

The most interesting aspect of Rome’s political and legal configuration was not its theoretical formulation, but how it pragmatically adapted to each time and its situation. Rome was initially a polis, featuring institutions characteristic of an Indo-European society, though certainly concretized in a sui generis manner by the Republic’s regime. Later, because of Rome’s massive expansion following its victory over Carthage in 209 bc, the republican model was flexible enough to allow for the integration of the new territories conquered. Republican institutions, however, were conceived primarily to govern the territorial scope of the civitas, and not to handle such dramatic territorial expansion. This precipitated the crisis of the republican regime in the first century bc, only resolved when Augustus laid the bases of a large centralized state (Raaflaub 2011, 62–66).

Augustus did not dare to impose a regime excessively based on his personage, given the fate of his adoptive father, Julius Caesar, assassinated in 43 bc. Rather, he formally preserved a republican regime and portrayed himself as its protector³² to prevent the resumption of civil strife.³³ In this way, he did not officially hold power, acting instead as “first citizen” (princeps), though this did not keep him from progressively shoring up his personal power, over the course of the 45 years he headed the state, which was willingly accepted by the People of Rome because his reign marked a long period of peace and stability. It is no coincidence that a month was named after him (August), and that the idea of an imperial cult was born, precisely, during this period.³⁴

From the point of view of constitutional history, the regime established by Augustus, which historians have termed a “Principate”, led to not so much a change in the republican constitutional scheme,³⁵ as a radical concentration of political power—something that Augustus achieved through his clever exploitation of the possibilities offered by Roman public law.³⁶ Thus, although in 23 bc, he relinquished the post as Consul he had held permanently since 27 bc, he retained his imperium,³⁷ or scope of power, as a proconsul, which a law in this year granted him for a period of 10 years. Thanks to successive renewals, he ended up retaining the position for life (Ferrary 2009). Moreover, shortly before his death, Augustus granted this imperium, by way of adoption, to Tiberius (14–37 ad). This proconsular imperium not only implied command of the army and, consequently, control of the imperial provinces, but in so far as it was eventually declared imperium maius, it also gave the princeps authority over the pro-magistrates (proconsuls, propretores), who governed the senatorial provinces, whose titles became increasingly nominal.

In Rome itself, Augustus assured his permanent supremacy in a more indirect but no less, effective way. After giving up a position as consul, he received tribunicia potestas for life (Wirszubski 2004, 50–51), which granted him the rights and powers of the plebeian tribunes, namely: inviolability, the right to veto, to convene the Senate, and to present bills to said tribunes. As this power was also transferred to Tiberius, it became one of the prerogatives which Roman emperors came to hold permanently.

There was, thus, no ostensible alteration of the traditional constitution. The magistracies were formally maintained, and the only new development was the concentration in the hands of Augustus of powers that no single man had ever held in Rome, and which, for the most part, Augustus exercised until the end of his days. Formally, Augustus was nothing more than the princeps (first citizen) but, in practice, his authority extended over every area of government. The popular assemblies were not abolished, but their decisions became mere ratifications of the Emperor’s wishes. In fact, they began to meet less and less frequently before disappearing late in the first century ad.

The counterweight, supported by Augustus himself, was the swelling influence of the Senate, which came to share power with the princeps, especially in the area of legislation, traditionally the purview of the assemblies—leading some legal historians to describe his regime as a “diarchy”.³⁸ At the beginning of the second century ad, the Roman jurist Gaius mentioned in his “Institutions” that, in his era, no one doubted that the Senate’s resolutions (senatus consulta) had the force of law.³⁹ Over time, however, the Senate too ended up merely doing the emperor’s bidding.⁴⁰

Augustus had managed to maintain his personal power over the Roman state, but, upon his death, the problem of his succession arose (Boatwright et al. 2004, 295). As the hereditary principle had never taken hold, successors were theoretically designated through the principle of “adoption”,⁴¹ though in reality, the keys were the army and Roman people’s fears of a return to the chaos caused by the civil wars, during the last years of the Republic. The growing power of the army was evident in the year 69 ad, when, after the death of Nero, four different generals were proclaimed emperors by their troops in various parts of the Empire. This situation, nevertheless, was resolved by one of them, Vespasian, who managed to restore order and good governance by fostering a climate of peace, which was to last more than a century.

In the long term, the constitutional position of the princeps resulted in the transformation of the Roman state into a monarchy. The comitia were not abolished, but their functions vanished. Popular legislation was supplanted by Senatorial legislation.⁴² During the Republican period the Senate was, technically, never more than an advisory body consulted by magistrates, as since Sulla its acceptance and action were required for the execution of its resolutions. The advice of the Senate, initially lacked the legal authority which could be bestowed by a popular assembly, but as Rome expanded, assemblies faded and the senatus consulta gained legislative force almost by default. However, no measure was ever promulgated formally investing the senatus consulta with legal authority (Talbert 1984, 432). The Senate’s influence would ultimately dwindle, as supreme control passed to the emperor, even in the city of Rome itself. During the second century the Senate’s approval of the legislation which the emperor brought before it would become a mere formality. In fact, during the last stage of the Principate, the senatus consulta were foregone conclusions, and their importance was limited to the speeches the Emperor gave to the Senate to formally request them.⁴³ The consuls and the praetors, although in theory retaining the prerogatives of their offices and their imperium, eventually became mere administrative implementers of the emperor’s will, as well.⁴⁴

In fact, all these important political changes led to the emergence of the huge administrative apparatus necessary to govern the Empire. It is interesting that most of the emperors of the second century, the apex of the Roman Empire, were themselves of provincial birth (Rostovtzeff 1998, 118).⁴⁵ Thus, alongside the traditional magistracies new imperial officials appeared during the time of Hadrian (117–138 ad), most of them from the equestrian class, responsible only to the emperor, and whose function was to administer the Empire based on bureaucratic criteria and according to imperial instructions.⁴⁶ These new officers not only increasingly eclipsed the traditional magistracies, but gave rise to the emergence of a new financial administration, which depended upon the imperial treasury (fiscus Caesaris). This “set of assets” constituted, in principle, the Emperor’s private fortune, making him and his administration effectively unaccountable to the Senate. Over time, however, the fiscus ended up being considered the authentic “patrimony of the Empire” because, although the government continued to turn to the old republican Treasury (aerarium), this came to be of secondary importance (Jones 1950).

The crisis affecting the Roman Empire beginning in the third century, profoundly transformed its legal organization. The emperor was no longer the Republic’s protector and princeps, but gradually became the sole repository of power. The Republic finally gave way to absolute monarchy. To avoid the disintegration of the Empire the emperors reacted by securing and bolstering their absolute power, and replacing the old magistracies with a huge bureaucratic network utterly dependent upon the emperor.

The last stage of the Roman Empire, in the historiography, is expressively referred to as the “Dominate”, so named because under this regime the last vestiges of the republican constitution disappeared and the figure of the emperor was regarded in a new way, shifting from first citizen (princeps) to dominus, that is: lord and master, an Eastern-style oriental monarch, rarely appearing in public, despite having a large court. He also took on status as a divine ruler; after the formal endorsement of Christianity, the emperor came to be considered a ruler by the grace of God, and came to be exalted through a series of very strict court ceremonies (Rees 2004, 46–56), inspired by the Near Eastern monarchies and which symbolized the people’s total submission to his power. Wearing special clothes and a distinctive crown, all visitors were to express obeisance before him. As a sacred figure, even the most important dignitaries were expected to prostrate themselves in his presence.⁵⁰

The emperor wielded all power, exercising it through a body of officials beholden to him alone. The Senate, lost even the appearance of legislative power, and became little more than the city council of Rome proper (Jones 1990, 329–333). In the other cities of the Empire, the senates also became aristocratic assemblies which, at best, managed to defend the privileges of their class, but generally had little influence on weighty political matters.

Under the Dominate, there continued to be consuls, praetors, quaestors and senators, in both the old and the new Rome (Constantinople). However, the title of consul had been reduced to but an honor, albeit one of great prestige, often adopted by the emperor himself. The year was still named for the two consuls, one of whom was appointed by the emperor of the West, and the other by the emperor of the East. The praetors and quaestors became, however, officials appointed by the emperor. The central government, in any case, fell under the exclusive purview of the emperor and his bureaucratic apparatus, to the point that the court and central administration travelled with the emperor (Liebeschuetz 2002, 457).⁵¹