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Cicero, Roman Republicanism and the Contested Meaning of Libertas

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1 Cicero, Roman Republicanism and the Contested

2 Meaning of Libertas
3

4 Geoff Kennedy
5 Durham University

6 Despite growing interest in neo-Roman republicanism, few republicans examine the character of Roman republi-
7 canism, either in its constitutional practice, its social relations or in the works of its primary defenders. This article
8 examines Cicero’s two systematic dialogues of political philosophy – De Re Publica and De Legibus – in order to assess
9 the status of liberty as ‘non-domination’ in these texts. It argues that, far from liberty as non-domination being the
10 operative conceptual ideal in Cicero’s republicanism, concordia along with equity as a form of proportionate equality that
11 depends upon the recognition of substantive differences of status and power serves as the foundation of his republican
12 political thought. This form of ordered liberty is offered as an alternative to the conception of liberty as a form of
13 ‘non-domination’ that Cicero attributes to the democracies of ancient Greece and the populist project of popular
14 reformers such as Tiberius and Gaius Gracchus.
15
16 Keywords: republicanism; liberty; Cicero; Rome
17

18 In recent years,‘neo-republican’ scholars have articulated a republican conception of liberty

19 as an alternative to that of the ‘negative’ and ‘positive’ conceptions of liberty. These
20 contributions to political philosophy turn to the history of Roman republican political
21 thought as the basis of this alternative tradition.According to Quentin Skinner (1978; 1984;
22 1993; 1998; 2002; 2006), republican writers in Renaissance Italy such as Machiavelli sought
23 to recover the Roman tradition of libertas and ‘free states’. In seventeenth-century England
24 neo-Roman writers inspired by Machiavelli as well as by Cicero and the Roman historians
25 argued that freedom is not merely freedom from external interference in the Hobbesian
26 sense; rather, freedom means independence from the will of others. From this perspective,
27 a constraint is not characterised merely in terms of coercion or interference, but rather in
28 terms of a persistent condition of dependence on the arbitrary will of another being.
29 Similarly, Philip Pettit (1997) has articulated a theory of republican liberty as a form of
30 ‘non-domination’ as opposed to the ‘non-interference’ prized by liberals. Other republican
31 theorists have sought to elaborate republicanism further as an alternative to liberalism and
32 communitarianism in the modern world (Maynor, 2003; Viroli, 2002).
33 In doing so, republican theorists argue that Isaiah Berlin’s (1958) dichotomy of ‘negative’
34 and ‘positive’ liberty is unrepresentative of the most prominent historical articulations of the
35 concept of liberty. For Pettit (1997, p. 18), the ‘negative–positive distinction has served us ill
36 in political thought’, by perpetuating the myth that ‘there are just two ways of understand-
37 ing liberty’. The irony is that Berlin’s conception of negative liberty as the ‘authentic’
38 conception of liberty stems initially from Hobbes’ definition, which serves to depoliticise
39 liberty and make it compatible with absolutism. The neo-Roman conception of liberty,
40 however, is ‘neither the negative nor the positive liberty described by Berlin and Constant’
41 (Viroli, 2002, p. 40). Existing within the interstices of negative and positive liberty,
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1 republican conceptions of freedom defy such simple classification. On the one hand,
2 republican liberty is clearly not a form of positive liberty; it requires neither ‘self-mastery’
3 nor ‘self-realisation’ in the form of political participation. As Pettit (1997) contends, the
4 constitutional role of the plebeian tribune established as a result of the ‘Conflict of the
5 Orders’ was merely to intercede in the affairs that took place between the senate and
6 the plebs.1 It did not empower the plebs in the way that Athenian democracy empowered the
7 demos. On the other hand, the notion that freedom depends upon non-domination as
8 opposed to non-interference means that republican liberty is not the equivalent of Berlin’s
9 conception of negative liberty.2 For example, under Berlin’s definition, a slave could
10 conceivably be ‘at liberty’ in so far as his master decided not to interfere with his physical
11 movement. For a republican, the condition of slavery implies a form of dependence on the
12 will of another that results in a condition of domination – regardless of any act of
13 interference. On the other hand, the non-arbitrary interference of the state – in the form
14 of the rule of law – is considered to be both compatible with and constitutive of the liberty
15 of the individual in a free society. Liberty does not, in other words, reside in the ‘silence of
16 the laws’.
17 The insistence that neo-Roman liberty is not a form of positive liberty differentiates it
18 from conceptions of democratic self-mastery that are said to be rooted in the Athenian
19 tradition.3 It is to Rome, therefore, that the republican tradition traces its preferred notion
20 of liberty. For Pettit (1997, pp. 5–6), it is the ‘tradition associated with Cicero at the time of
21 the Roman Republic’, carried on through the Renaissance by Machiavelli, through to the
22 early modern period by Harrington and eventually to eighteenth-century England,
23 America and France. For Skinner (1993, p. 300), the tradition is traced back to those writers
24 ‘whose greatest admiration had been reserved for the doomed Roman republic: Livy,
25 Sallust, and above all, Cicero’. Maurizio Viroli (2002, p. 105) states that the ‘classical theory
26 of the res publica is found in the works of Roman political authors and historians ...
27 especially Cicero’s De Re Publica and De Officiis’.
28 Despite this emphasis on the Roman aspect of republicanism, few republicans examine
29 the character of Roman republicanism, in its constitutional practice, its social relations or in
30 the works of its primary defenders. In Pettit’s text, a postscript has been appended to
31 elaborate on the Roman origins of his conceptualisation of liberty as non-domination.This
32 postscript, however, does nothing to illuminate further the realities of republican Rome, nor
33 does it attempt to probe deeper into the works of Roman republican writers. Rather, it
34 merely emphasises, to a greater degree, the intellectual debt to republican Rome.This blind
35 spot in the republican literature exposes it to a number of critiques: the first pertaining to
36 the reality of republican liberty as a form of non-domination; the second pertaining to the
37 status of liberty as a form of non-domination in the works of key republican writers such
38 as Cicero.
39 The republican understanding of Roman liberty is dependent upon the work of Chaim
40 Wirszubski (1960), whose analysis of the Roman conception of libertas is the primary
41 Roman source among all of the republican scholars mentioned above.4 Wirszubski dem-
42 onstrates that for the Romans liberty referred to the ‘liber’, that is, the freeman in opposition
43 to the slave. To be free means to be ‘capable of possessing rights of one’s own, and this is
44 possible only if one is not subjected to someone else’s dominium’. Liberty, therefore,
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1 ‘consists in the capacity for the possession of rights, and the absence of subjection’
2 (Wirszubski, 1960, p. 1). This abstract definition of liberty as an absence of ‘dominium’
3 forms the basis of both Pettit’s philosophical reconstruction of republicanism and Skinner’s
4 historically oriented study of the neo-Roman tradition in early modern Europe.
5 Yet Wirszubski’s analysis of republican liberty is more nuanced than its treatment at the
6 hands of contemporary republican theorists. While attempting to comprehend the funda-
7 mental principles of libertas at an abstract level, Wirszubski (1960, p. 5) contends that this
8 abstraction is only for analytical purposes, for ‘the nature and extent of libertas are
9 determined by the nature and form of the Roman constitution’. More importantly,
10 Wirszubski identifies a tension within the concept of libertas between the civil rights of the
11 citizen and the authority of the state – a tension that often privileged the maintenance of
12 senatorial authority within the mixed constitution against the rights of the citizen. He notes
13 that ‘Libertas is not so much the right to act on one’s own initiative as the freedom to
14 choose an “auctor” whose “auctoritas” is freely accepted’ (Wirszubski, 1960, p. 35). He
15 writes:

16 Of the two cardinal notions that Roman libertas comprised, namely the republican constitu-
17 tion and the rights inherent in Roman citizenship, the former, on the showing of the extant
18 evidence, was by far the more prominent in the presentation of libertas by politicians and
19 political writers at Rome during the Late Republican period. Except on such occasions as
20 those on which the Populares upheld the civic right of provocation against magisterial action
21 supported by a S. C. Ultimum, libertas as a political watchword in the struggle of factions in
22 Rome meant in the first place a form of government, and not the rights and liberties of the
23 individual citizen (Wirszubski, 1960, p. 66).
24
25 Two points need to be highlighted. First, as a concept prone to interpretation, the meaning
26 of libertas was contested by rival political groups, notably the optimates and the populares.5
27 While populares and optimates may not have been well defined political groupings with
28 clearly articulated ideologies or political programmes,6 each faction fought the other,
29 claiming ‘to be the champions of libertas’ (Wirszubski, 1960, p. 31). Second, prominent
30 defenders of the traditional republican constitution – Cicero among them – identified with
31 the optimates, and tended to privilege the security of the constitution, characterised by
32 senatorial dominance, over the civic rights of Roman citizens.This is not a contradiction;
33 within the aristocratic strands of Roman republicanism there is no contradiction in
34 characterising the security of the state as a form of liberty, for the libertas of the cives
35 presupposed the libertas of the civitas. In particular, optimates and other notables in the
36 Roman republican tradition upheld the convention of the senatus consultum ultimum: the
37 declaration by the senate that the republic ‘was in real danger and that therefore unusual
38 measures for its protection were justified’ (Wirszubski, 1960, p. 57). Typically, the senatus
39 consultum ultimum ‘pointed out the quarters from which the State was threatened, and
40 implied that certain citizens, having adopted a hostile attitude towards the State, should be
41 treated as hostes’ (Wirszubski, 1960, p. 57). Under such conditions, the liberties of the
42 Roman citizen – as hostis – could be suspended, and unconstitutional powers could be
43 employed by the senate against these domestic enemies of the republic. According to
44 Wirszubski (1960, p. 58), the populares ‘were apt to be the victims of such treatment’ and in
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1 response tended to emphasise the significance of the civic liberties implied in the notion of
2 Roman libertas against the prerogatives of senatorial auctoritas. In this sense, Wirszubski
3 (1960, p. 61) suggests that it is they – the populist enemies within the republican tradition,
4 with their ‘insistence on the inviolability of the provocatio as against magisterial action
5 supported or instigated by the auctoritas of the Senate’ – who are the champions of Roman
6 freedom.
7 Wirszubski’s account of Roman libertas, therefore, emphasises the contested nature of
8 the concept and suggests that the figures most associated with the republican tradition –
9 for example, Cato, Brutus and Cicero – identified with the political forces that were
10 more apt to invoke extraordinary executive powers against the rights of Roman citizens
11 in the name of preserving the ‘republic’. This point is supported by the important work
12 done by P. A. Brunt (1988), who goes so far as to say that there existed no single
13 conception of Roman liberty; indeed, in order to comprehend Roman liberty we need
14 to understand that it meant many things to many different people: some conceptions of
15 libertas emphasised the negative aspects of Roman liberty while others emphasised its
16 positive aspects, and some conceptions of libertas emphasised the democratic aspects of
17 liberty while others emphasised the elitist and aristocratic aspects of liberty.7 This con-
18 tested narrative raises questions over the value of optimate interpretations of libertas within
19 the Roman tradition that have become associated with historical figures of note within
20 the republican canon.
21
22 Libertas and Concordia in Cicero’s De Re Rublica
23 From the perspective of the history of political thought, the notable figure in the Roman
24 republican tradition is Cicero, who will be the focus of the remaining analysis. Despite his
25 significance, there is little systematic analysis of his political thought.8 Part of the reason for
26 this neglect is due to the fact that, with the exception of fragments surviving in the works
27 of political theorists like Augustine, Cicero’s De Re Publica was lost until 1820. As a result,
28 it would not play an important role in the development of the republican tradition typified
29 by the likes of Machiavelli, Harrington, Montesquieu and others within the neo-Roman
30 republican tradition. De Legibus, however, would have been available to early modern
31 republicans, and given that it was intended by Cicero to be a sequel to De Re Publica (in the
32 sense that it articulates the specific laws of the ideal republican constitution) it is curious
33 that republican scholars have neglected to analyse its place in the republican tradition.
34 Skinner (2002, p. 12) has referred briefly to the opening preamble of De Legibus to
35 emphasise Cicero’s commitment to the rule of law and the safety of the people (salus populi
36 suprema lex esto), but he engages in no discussion of how De Legibus was received in the early
37 modern period. Finally, De Officiis, Cicero’s last systematic work, was concerned not with
38 liberty, but with the virtues of the good man and citizen.
39 In the absence of any sustained analysis of his systematic political theory, republicans have
40 relied on his oratory as a source of republican liberty. In terms of understanding how the
41 Roman ideal of libertas was interpreted and transmitted by republicans writing in the early
42 modern period, this makes sense. For example, Skinner’s (2002, p. 11) work on English
43 republicanism prior to the establishment of the Commonwealth relies largely on Cicero’s
44 Philippics as the source of libertas and its importance to Cicero’s republicanism:
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1 As Cicero’s closing remark makes clear, to enjoy de facto freedom of action is not necessarily
2 to enjoy liberty. If your freedom is held at the discretion of anyone else, such that you continue
3 to be subject to their will, then you remain a slave. To enjoy liberty, in other words, it is not
4 sufficient to be free from coercion or the threat of it; it is necessary to be free from the possibility
5 of being threatened or coerced (emphasis in original).
6
7 For an understanding of the significance of libertas in Roman republican thought, however,
8 the neglect of Cicero’s systematic political thought in favour of his oratory seems prob-
9 lematic, for it raises some concerns regarding interpretation. To what extent do we take
10 Cicero’s legal and political speeches as being indicative of his republican ideal regarding
11 liberty, the state and the individual? As Neal Wood (1988, p. 62) argues, a problem exists
12 pertaining to ‘the weight that should be given to the polemics of the orations vis-à-vis the
13 more rational argumentation of the philosophic works. In the case of contradiction, the
14 position of the latter should be given priority’.This reliance on the orations to the exclusion
15 of De Re Publica, De Legibus and De Officiis increases the tendency to give to Cicero’s
16 political thought ‘a greater logical consistency and coherence than they warrant’ (Wood,
17 1988, p. 62). For example, in De Lege Agraria, when addressing the popular assembly, Cicero
18 praises the ‘counsel’, the ‘wisdom’ and the ‘laws’ of the ‘able’ and ‘illustrious’ Gracchi for
19 strengthening parts of the republic. However, in De Officiis, he writes that the Gracchi,
20 ‘while alive did not win the approval of good men; and now that they are dead they are
21 numbered among those who were justly cut down’ (Cicero, 1991, II. 43). Elsewhere in the
22 text, he associates the Gracchi with imprudence, profligate spending and civil discord that
23 weakened the republic. In terms of the republican tradition, there seems to be a potential
24 danger here of expecting to find in Cicero’s oratory a conception of libertas that is said to
25 be representative of the conceptions of liberty that are thought to be constitutive of the
26 neo-Roman tradition being articulated in the early modern period.The point here is not
27 to suggest that Cicero could not have meant to reference a form of liberty that is
28 understood to be a form of non-domination, but rather that, considered in the context of
29 his systematic political treatises, such a notion of liberty was not the cornerstone of his
30 republicanism.
31 Given their republican credentials, De Re Publica and De Legibus will be the focus of the
32 following analysis. Upon close examination, it becomes apparent that, rather than libertas as
33 a form of non-domination acting as the operative conceptual ideal in Cicero’s republican-
34 ism, concordia, along with equity as a form of proportionate equality that depends upon the
35 recognition of substantive differences of status and power, and the defence of the state
36 against internal dissent – what Cicero referred to as cum dignitate otium – serve as the
37 foundation of his ‘republican’ political thought. Liberty, for Cicero, must coexist with
38 recognition of the dignitas of the ‘best men’ and the auctoritas of the senate.9 Dignitas refers
39 to the ‘esteem a worthy personality commands’, and presupposes a certain degree of
40 material wealth (Wirszubski, 1960, pp. 12–3). Thus, while dignitas cannot be reduced to
41 landownership, only those of high social standing – capable of attaining the highest offices
42 of the state – were capable of being recognised as men of dignitas. Given the material
43 foundation of statesmanship, therefore, the ‘great men’ were of the landowning class (but not
44 all men of the landowning class were ‘great men’). As such, liberty is better understood as
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1 a form of ‘ordered liberty’ characteristic of a conservative and aristocratic world view.

2 Liberty isolated from dignitas and auctoritas is licence or anarchy.This form of ordered liberty
3 is offered as an alternative to the conception of liberty as a form of non-domination or
4 ‘masterlessness’ that Cicero attributes to the democracies of ancient Greece and the
5 populism of reformers such as Tiberius and Gaius Gracchus.
6 Far from representing an elaborate argument in favour of liberty as a form of non-
7 domination, Cicero’s treatment of liberty is in fact quite ambiguous in De Re Publica. On
8 the one hand, he does seem to define liberty as a condition that exists in opposition to
9 slavery. For example, in speaking of Cyrus the Great, he states that while Cyrus may have
10 been among the wisest and most just of kings, such a form of state is not a desirable form
11 of government because in it the ‘property of the people’ (populi res) is ‘administered at the
12 nod and caprice of one man’ (Cicero, 1928a, I. 44). Unfettered kingship verges on personal
13 rule which poses the problem of degenerating into the rule of an arbitrary individual will
14 (dominates), as opposed to rule in the interest of the ‘common weal’. On the other hand,
15 Cicero attributes a condition of liberty to Greek democracies as opposed to what he
16 favourably terms a ‘free state’. It is in free states that the res publica – typically translated into
17 ‘the people’s business’, ‘the people’s property’ or ‘the people’s affairs’ and often used by
18 Cicero to refer to the state – is administered in accordance with the ‘common weal’.10
19 Cicero therefore distinguishes the liberty of a ‘free state’ (what contemporary republicans
20 refer to as a ‘republic’) from the liberty of democracy.11 In presenting the democratic
21 argument, Cicero states that ‘liberty has no dwelling-place in any State except that in which
22 the people’s power is the greatest’.This is not what Cicero believes, but what he argues the
23 proponents of democracy believe. By definition, this form of liberty is based on the
24 principle of an equality of rights for all citizens, for the proponents of democracy claim that
25 anything less ‘does not deserve the name of liberty’.‘Free states’ such as the Roman republic
26 are not characterised as ‘democratic’ because, while citizens may vote, ‘elect commanders
27 and officials, are canvassed for their votes, and have bills proposed to them’, ‘they have no
28 share in the governing power, in the deliberative function, or in the courts, over which
29 selected judges preside, for those privileges are granted on the basis of birth or wealth’. In
30 a democracy such as Rhodes or Athens, however,‘there is not one of the citizens who [may
31 not hold the offices of State and take an active part in the government]’ (Cicero, 1928a, I.
32 47). Liberty is therefore said to be most prevalent in democracies and precludes large
33 disparities of wealth among the citizenry. Proponents of democracy say that ostentatious
34 wealth – or the allowance thereof – will result in the ‘cowardly and weak giving way and
35 bowing down to the pride of wealth’, which paves the way for the rule of one or the few
36 (Cicero, 1928a, I. 48). But if the people retain their ‘rights’ and become masters of the laws
37 and of the courts, and retain control over matters of war, peace and ‘international agree-
38 ments’, as well as of ‘every citizen’s life and property’, no form of government would be
39 superior in freedom and happiness.12 Only such a popular government – a democracy in
40 line with Athens – could be considered a ‘commonwealth’, the property of the people.
41 Having rehearsed the democratic conception of liberty as a form of popular control over
42 the deliberative functions of the state, Cicero equates this notion of liberty with licentia or
43 licence.When speaking in his own voice – rather than rehearsing the democratic argument
44 – he relies on Plato’s caricature of the liberty found in democracies:
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1 It necessarily follows in such a State that liberty prevails everywhere, to such an extent that not
2 only are homes one and all without a master, but the vice of anarchy extends even to the
3 domestic animals, until finally the father fears his son, the son flouts his father, all sense of shame
4 disappears, and all is so absolutely free that there is no distinction between citizen and alien;
5 the schoolmaster fears and flatters his pupils, and pupils despise their masters; youths take on
6 the gravity of age, and old men stoop to the games of youth, for fear they may be disliked by
7 their juniors and seem to them too serious. Under such conditions even the slaves come to
8 behave with unseemly freedom, wives have the same rights as their husbands, and in the
9 abundance of liberty even the dogs, the horses, and the asses are so free in their running about
10 that men must make way for them in the streets (Cicero, 1928a, I. 67; compare Plato, 1997,
11 562c–563e).

12 Such is the condition of liberty – licentia – in democracies that all members of the city state ‘are
13 utterly without a master of any kind’ (Cicero, 1928a, I. 67). Such ‘excess liberty’, however, has
14 the paradoxical and undesirable consequence of creating the conditions for tyranny.
15 What is interesting about this passage is the extent to which – all embellishments aside
16 – it casts democratic liberty as a condition that accords a certain degree of freedom to
17 slaves, women and children. Democracy seems to limit the paternalistic power of the
18 father over the son; the patriarchal power of the husband over the wife; and even seems
19 to limit the arbitrary powers of dominium exercised by the dominus or despotes over the
20 slave. It is worth remembering that Aristotle considered these forms of association to be
21 non-political in the sense that they pertained to relations of power exercised between
22 individuals of unequal status (Aristotle, 1984a, I. 1252a24–1253a29). And given that a
23 political relationship is characterised by the fact of ruling and being ruled in turn, these
24 forms of non-political power are necessarily arbitrary.The slave is dependent upon the will
25 of the master; the wife is dependent upon the will of the husband; and the child is
26 dependent upon the will of the father. In this sense, democratic liberty is characterised by
27 a form of independence from arbitrary power that is enjoyed even by those not consid-
28 ered to be citizens of the state.13
29 It may be said that Cicero’s characterisation of libertas as a licentious form of ‘non-
30 domination’ is meant to apply to democracies, and that a more moderate form of libertas is
31 the primary characteristic of a republican ‘mixed constitution’ that Cicero is proposing in
32 the text. Libertas, in other words, is still a form of ‘non-domination’ that is intrinsically
33 identified with the Roman republic, albeit a form of liberty that is different from that
34 enjoyed by the Greeks.Yet when we look at his analysis of the historical development of the
35 Roman republic and his defence of its principles, we see that concordia or concentus, not
36 libertas, is the predominant characteristic of his republicanism.14 A state, or civitas, is:
37 made harmonious by agreement among dissimilar elements, brought about by a fair and
38 reasonable blending together of the upper, middle, and lower classes, just as if they were musical
39 tones. What the musicians call harmony in song is concord in a State [civitate concordia], the
40 strongest and best bond of permanent union in any commonwealth; and such concord can
41 never be brought about without the aid of justice (Cicero, 1928a, II. 69).

42 The virtues of the mixed constitution reside in the promotion of stability and in a ‘high
43 degree a sort of equality, which is a thing free men can hardly do without for any
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1 considerable length of time’. This is because ‘there is no reason for a change when every
2 citizen is firmly established in his own station’ (Cicero, 1928a, II. 69).15
3 In this sense, concordia or concentus represents the absence of redistributive measures that
4 Cicero claims threatens existing social hierarchies and contributes to the instability of the
5 republic. In Pro Sestio, for example, Cicero (2006, p. 103) approves of noble opposition to
6 the agrarian law of Tiberius Gracchus on the basis that they ‘saw it as a way of stirring up
7 discord and judged that the commonwealth would be stripped of its defenders if the rich
8 were dislodged from their long-time holdings’; the grain dole of Gaius Gracchus is similarly
9 attacked on the grounds that it would seduce the plebs ‘from the ways of hard work and
10 become slothful, and they [the nobles] saw that the treasury would be drained dry’. In De
11 Officiis, Cicero (1991, II. 73), in another critique of Gaius’ corn dole, argues that the first
12 consideration of any statesman is to ‘see that everyone holds on to what is his, and that
13 private men are never deprived of their goods by public acts’. Nothing, for Cicero, could
14 be worse for the republic than an ‘equalization of goods’ due to the fact that ‘political
15 communities and citizenships were constituted especially so that men could hold on to
16 what was theirs’ (Cicero, 1991, II. 73). Consequently, those who pursue such populist
17 measures of redistribution ‘sap the foundations of the constitution’. As such, ‘concord ...
18 cannot exist when money is taken from some and bestowed upon others’ (Cicero, 1991, II.
19 78). It is instructive that the consul Lucius Opimius, one of the ‘eminent men’ whose exile
20 at the hands of the Roman people Cicero laments at the beginning of De Re Publica,
21 celebrated his defeat of the supporters of Gaius Marius by erecting a temple to Concordia
22 – the goddess of concord – in the Aventine (Ungern-Sternberg, 2004, p. 94).
23 Equity, in contrast and opposition to equality (aequabilitas), represents the ‘fair’ distribu-
24 tion of property, goods and offices on the basis of rank or dignitas.16 In this sense, equity
25 resembles Aristotle’s notion of proportionate equality, in which ‘giving each their due’ is
26 oriented to the distribution of goods and offices in a manner that is ‘proportionate’ to a
27 citizen’s contribution to the functioning of the polis. In the Politics, Aristotle (1984a, III.
28 1280a7–1280a21) writes:
29 Thus it is thought that justice is equality; and so it is, but not for all persons, only for those that
30 are equal. Inequality also is thought to be just; and so it is, but not for all, only for the unequal.
31 ... If persons originally come together and form an association for the sake of property, then
32 they share in the state in proportion to their ownership of property.17

33 Those citizens who, by virtue of their noble birth, their possession of the requisite amount
34 of ‘external goods’ (i.e. property) and their virtuous living or ‘habituation’, contribute more
35 to the functioning of the polis – the ‘parts’ – will possess greater political rights than those
36 who do not – and cannot – contribute as much to the functioning of the polis – the
37 ‘conditions’. From Aristotle’s perspective, this is meant to grant a certain distribution of
38 political rights while maintaining the power and prestige of the aristocracy. Cicero has
39 something similar in mind. While legal rights – in the form of access to the law – are
40 distributed on the basis of equality, property and political rights are distributed on the basis
41 of equity. All freemen have access to the courts and therefore to the Roman Law, but only
42 citizens possess political rights. But even within the rubric of citizenship, those citizens of
43 dignitas will enjoy greater voting rights and exclusive rights to run for office. Cicero (1928a,
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1 II. 39) attributes to Servius Tullius the wise innovation of ensuring that the ‘greatest number
2 of votes belonged, not to the common people, but to the rich, and put into effect the principle
3 which ought always to be adhered to in the commonwealth, that the greatest number should
4 not have the greatest power’.18 This ‘fair’ distribution of honours and offices is the ‘partnership’
5 that forms the basis of the res publica (Asmis, 2004, pp. 584–6). Concord and equity are
6 mutually supportive of each other, and are equally necessary for the maintenance of the
7 aristocratic order: the ‘balance of rights, duties, and functions, so that the magistrates have
8 enough power, the counsels of the eminent citizens enough influence, and the people enough
9 liberty’ (Cicero, 1928a, II. 58). Elizabeth Asmis (2005) argues that the elements of the Roman
10 constitution that Cicero believes make it the best type of constitution are the principles of
11 cooperation based on just recognition of the rights of others and rule by wise leaders. Liberty
12 as ‘non-domination’ must be understood and exercised within this context of constitutional
13 balance. In contrast,‘popular’ government, of the kind representative of the Gracchi’s politics
14 (not to be confused with Cicero’s characterisation of ‘popular’ government as a Roman
15 alternative to democracy as outlined in De Re Publica),19 results in the establishment of an
16 equality (aequabilitas) that is itself inequitable (iniqua), regardless of the justice or moderation
17 with which popular government is ruled, because such popular government ‘allows no
18 distinctions in rank [gradus dignitatis]’ (Cicero, 1928a, I. 43).
19

20 Constitutionalism and Natural Law in Cicero’s De Legibus

21 Having been presented with a hierarchical and authoritarian20 conception of liberty in De
22 Re Publica, we are left with De Legibus to fill in the blanks regarding the significance of
23 liberty as non-domination. However, the focal point of De Legibus is not libertas, but the
24 metaphysical underpinnings of the civil laws of the ideal republic: Cicero’s notions of justice
25 and natural law. This is Cicero at his most Platonic, for while civic laws are relative to a
26 particular people – incorporating both the civil law produced by legislative bodies and
27 customs that are the product of historical practice – natural law is universal.The essence of
28 the matter is that civil laws and customs that are not in conformity with natural law are not
29 considered to be laws at all (just as ‘pure’ constitutions are not considered to be ‘states’ as
30 stated in De Re Publica). What is striking about De Legibus is the extent to which Cicero
31 recognises the sovereign power of the popular assemblies, only to inhibit significantly their
32 lawmaking power by embedding the fundamental laws and principles of the Roman
33 republican constitution within an absolutist and unchanging conception of natural law:
34 What of the many deadly, the many pestilential statutes which nations put in force? These no
35 more deserve to be called laws than the rules of a band of robbers might pass in their assembly.
36 For if ignorant and unskillful men have prescribed deadly poisons instead of healing drugs,
37 these cannot possibly be called physicians’ prescriptions; neither in a nation can a statute of any
38 sort be called a law, even though the nation, in spite of its being a ruinous regulation, has
39 accepted it (Cicero, 1928b, II. 13).

40 According to Cicero (1928b, II. 13),‘Law is the distinction between things just and unjust,
41 made in agreement with that primal and most ancient of all things, Nature; and in
42 conformity to Nature’s standard are framed those human laws which inflict punishment
43 upon the wicked but defend and protect the good’.21
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 10 G E O F F K E N N E DY

1 Cicero’s task is not merely to defend the laws and magistracies of the Roman republic
2 as it existed in the so-called ‘golden age’ between the fall of the Decemvirs and the rise of
3 the aristocratic factionalism that pitted optimates against populares, but to root them in an
4 unchanging foundation of ‘natural law’ as a means of conserving a particular political
5 arrangement that is the constitutional carapace of the aristocratic rule of the ‘best men’.22
6 In this sense, it entails a ‘concept of a pre-political moral order that supplies the rules
7 incorporated’ in Cicero’s idea of constitutional government; natural law informs the ‘higher
8 order constitutional norms’ and ‘the limits of popular legislation and the positive legal
9 system’ (Straumann, 2011, p. 290).23 While this is meant to extinguish any ‘arbitrary’ power
10 emerging out of the popular assemblies, the ambiguous character of natural law as defined
11 by Cicero – in particular, its normative status pertaining to the ‘good’ and its relationship to
12 the defence of private property – opens up the possibility of a kind of arbitrary aristocratic
13 power in its own right: in so far as the constitution is unwritten, and the metaphysics of
14 natural law trump the civil law emanating from the popular assemblies, ‘constitutionalism’
15 becomes a vehicle for the preservation of aristocratic power against the ‘arbitrariness’ of
16 popular sovereignty.
17 These conceptual innovations regarding the character of republican constitutionalism
18 were intended as a powerful defence against the use of the tribunate by populares like the
19 Gracchi to enact significant social reforms that would alter the balance of power in Roman
20 society and affect the traditional composition of republican institutions. This is significant
21 because Cicero (1928b, III. 24) defends the institution of the tribunate from Quintus, who
22 proposes its abolition, on the grounds that the power of the Roman people ‘is sometimes
23 milder in practice because there is a leader to control it than if there were none’.When the
24 senate agreed to the creation of the tribunes, argues Cicero (1928b, III. 24),‘conflict ceased,
25 rebellion was at an end, and a measure of compromise was discovered which made the more
26 humble believe that they were accorded equality with the nobility; and such a compromise
27 was the only salvation of the State’. In a revealing passage, Cicero states that if the tribunes
28 were not created as a response to plebeian discontent, either monarchy had to be
29 re-established,‘or else that real liberty, not a pretence of it, had to be given to the common
30 people’. Fortunately, the tribunate served the purpose of establishing an ordered liberty, for
31 ‘this liberty has been granted in such a manner that the people were induced by many
32 excellent provisions to yield to the authority of the nobles’ (Cicero, 1928b, III. 25).
33 Having supported Pompey’s reintroduction of the tribunate, and being acutely aware of
34 the role that the tribunes played in weakening the power of the optimates, Cicero then needs
35 to ensure that these offices of the people are not used in ways that diminish aristocratic
36 power. His conception of natural law serves this purpose. For example, in Book II, Cicero
37 makes reference to the role of the augur in advising the repeal of ‘wicked and unjust
38 statutes’ that contradict the principles of natural law. The examples are the Titian Law of
39 Sextus Titius (99 bce) and the Livian laws of Marcus Livius Drusus (91 bce). Both of these
40 examples represented agrarian and grain laws that sought to redistribute land away from the
41 aristocracy and alleviate the plight of the poor by fixing the cost of grain – characteristic
42 of the populares. Both laws were annulled by the senate on the grounds that, at least in
43 Cicero’s (1928b, II. 13–4) view, they were not true laws but rather resembled ‘the rules a
44 band of robbers might pass in their assembly’. In this sense, Cicero is ‘effectively replacing
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POLITICAL STUDIES: 2013
 THE CONTESTED MEANING OF LIBERTAS 11

1 any distributive aspects of political justice with rectificatory ones, making the justice and
2 constitutionality of government dependent on its respect for existing, ultimately pre-
3 political property distribution and constitutionally restraining its power to redistribute’
4 (Straumann, 2011, p. 291).
5 Other measures aside from Cicero’s constitutionalism are introduced as a means of
6 securing the authority of the aristocracy. For example, the repeal of the secret ballot is one
7 measure that is addressed at length in De Legibus. The secret ballot was implemented
8 through a series of popular reforms introduced by populist tribunes in the latter half of the
9 second century bce.The first stage pertained to elections for magistrates and was introduced
10 by Aulus Gabinius in 139; the second measure, introduced by Lucius Cassius in 137 granted
11 the secret ballot for elections during popular trials; the third measure, passed by Gaius
12 Papirius Carbo in 131, introduced the secret ballot into the popular assemblies that voted
13 on the legislation presented by magistrates; and finally, a secret ballot for treason trials was
14 introduced by Gaius Coelius in 107 bce. Such reforms were considered a significant blow
15 to the optimates.As Quintus remarks in De Legibus,‘everyone knows that laws which provide
16 a secret ballot have deprived the aristocracy of all its influence’ (Cicero, 1928b, III. 34). As
17 such, the repeal of the secret ballot poses a threat to the independence of lower-class voters.
18 Although Cicero (1928b, III. 33) does not advocate the total repeal of the secret ballot, he
19 undermines its strength and sanctity by stipulating that ballots ‘shall not be concealed from
20 citizens of high rank, and shall be free to the common people’ (emphasis in original). This opens
21 the door to a kind of ‘dependency’ that republicans in the early modern period used as a
22 means to exclude people from attaining the franchise. During the debates at Putney Church
23 in England in 1647, for example, Henry Ireton urged a restriction of the franchise in order
24 to exclude servants and alms-takers on the grounds that they existed in a condition of
25 dependence on their masters. As Skinner (2006, p. 162) points out, Ireton ‘explicitly insists
26 that the franchise should be confined to “free men”, and he states that by “free men” he
27 means those who are “not given up to the wills of others” and are thus “freed from
28 dependence” ’. Maximilian Petty, concurring with Ireton, accepts this exclusion, arguing
29 that it is due to the fact that apprentices and servants ‘depend upon the will of other men’
30 and are thereby ‘included in their masters’ (Petty, in Woodhouse, 1974, p. 83). By repealing
31 the secret ballot, Cicero (1928b, III. 38) is granting ‘freedom to the people in such a way as
32 to ensure that the aristocracy shall have great influence and the opportunity to use it’. In
33 this way, formal freedom is allowed to reside alongside the informal influence, power and
34 authority of the aristocracy in a way that, while not resembling a form of slavery or
35 ‘domination’ (in the literal Latin sense of being the property of another), certainly under-
36 mines the notion of liberty as a form of independence.
37
38 Conclusion
39 In relation to the social conflicts of the late republican period, Cicero sided with the
40 optimates against the populares’ attempts to redress the significant social and economic
41 inequalities of Rome that diluted the libertas of the lower classes – the lower-order
42 plebeians, the proletariat and the peasantry. In his oratory, in his political theory and in his
43 actions as consul, he consistently branded populist reformers as security threats to the
44 republic.24 Such a characterisation is not simple rhetoric. As Cicero’s handling of the
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POLITICAL STUDIES: 2013
 12 G E O F F K E N N E DY

1 Catiline conspiracy demonstrates, and as Wirszubski’s (1960) study confirms, defenders of

2 republican libertas like him were content to invoke the senatus consultum ultimum to override
3 the rule of law in order to eliminate populist threats to senatorial auctoritas in the republican
4 constitution. When speaking of Roman libertas, we must take into account its contested
5 meaning by situating it within the socio-political conflicts of the period. As Brunt (1988,
6 p. 327) writes, there is no one form of Roman liberty; and when it comes to the work of
7 ‘republican’ writers like Cicero, we must ‘reject the assumption’ that he ‘speaks for “the
8 Roman” ’.
9 One of the problems of the ‘republican’ interpretation of liberty is that, despite its
10 emphasis on the significance of slavery in its definition of liberty as non-domination, it
11 tends to conceptualise liberty at a high level of abstraction, neglecting to take into account
12 its contested meaning.The republican narrative remains caught within a framework that pits
13 republican liberty as ‘non-domination’ against a negative liberty defined as ‘non-
14 interference’. Absent from this narrative is a recognition of the extent to which liberty as a
15 form of non-domination itself is prone to contestation by actors who would identify
16 themselves as ‘republicans’. This article has argued that any characterisation of Cicero as a
17 staunch proponent of constitutionalism and the rule of law as aspects of a conception of
18 liberty as ‘non-domination’ needs to take into account the fact that his notion of libertas was
19 subsumed to an overriding concern with concordia or concentus that privileged the mainte-
20 nance of senatorial auctoritas; and his constitutionalism rested upon the foundation of natural
21 law that represented little more than an ideological bulwark against popular social and
22 political change. In general, his deference to the rule of law was surpassed only by his
23 deference to senatorial auctoritas and his opposition to social reform.25 In a sense, Cicero’s
24 lengthy discussion of the purpose of his law against the secret ballot encapsulates the
25 grander political project of the Republic and the Laws: ‘our law grants the appearance of
26 liberty, preserves the influence of the aristocracy, and removes the causes of dispute between
27 the classes’ (Cicero, 1928b, III. 39).
28 (Accepted: 1 October 2012)
29
30 About the Author
31 Geoff Kennedy is a Lecturer in Politics at the School of Government and International Affairs at Durham University.
32 His current research interests are in republican political thought, Marxism, neo-liberalism and seventeenth-century
33 English political thought. Geoff Kennedy, School of Government and International Affairs, Durham University, Al
34 Qasimi Building, Elvet Hill Road, Durham, County Durham DH1 3TU, UK; email: geoff.kennedy@durham.ac.uk
35
36 Notes
37 I would like to thank Ellen Meiksins Wood and the three anonymous reviewers for their constructive feedback on various drafts of
38 this article.
39 1 For a different view of the tribunate, see Maddox, 2002; Wirszubski, 1960.
40 2 Whereas Pettit rejects Berlin’s dichotomy, Skinner (1984) initially argues that classical republicans adhered to a negative conception
41 of liberty.
42 3 Pettit is more explicit on this matter than is Skinner. It is also the case that most republicans throughout the early modern period
43 accepted the anti-democratic narrative of Athens. See Roberts, 1997.
44 4 Skinner (1998) refers to Wirszubski nine times, but of these nine references, none of them goes beyond the introductory chapter.
45 Pettit (1997) confines his references to the first chapter with the exception of one reference to page 159.
46 5 Optimates refers to the ‘best men’ who identified with and sought to preserve the dominance of senatorial authority within the
47 republican constitution. They are often characterised as conservatives in this manner given the extent to which they espoused

© 2013 The Author. Political Studies © 2013 Political Studies Association

POLITICAL STUDIES: 2013
 THE CONTESTED MEANING OF LIBERTAS 13

1 hierarchy, order and the preservation of property rights which buttressed vast disparities of wealth and power that divided the large
2 landowning class (of which they were members) from everyone else in Roman society. In contrast, the populares refers to
3 aristocratic reformers who challenged the authority of the senate in their attempts to alleviate the social problems that they
4 believed to be responsible for the deterioration of the republic.
5 6 See Brunt, 1971; Taylor, 1962. For more recent overviews, see Robb, 2010; Ungern-Sternberg, 2004; Wiseman, 1994.
6 7 Brunt (1988) challenges the simple dichotomy between ‘Roman’ and ‘Greek’ conceptions of liberty by pointing out that in both
7 Rome and Greece notions of ‘freedom’ spanned a spectrum that encompassed both ‘positive’ and ‘negative’ conceptions of liberty;
8 and he rejects Constant’s unhelpful distinction between ‘ancient’ and ‘modern’ forms of liberty. Interestingly, it becomes clear
9 through the course of the essay that most classicists – contra the tendency among political theorists – consider Greek conceptions
10 of freedom to privilege a ‘negative’ conception of liberty.
11 8 Viroli (2002) mentions Cicero five times, and one of these instances – from Pro Cluentio – is used to elaborate the Roman ideal
12 of liberty.The other references to Cicero demonstrate that liberalism’s concern for the protection of private property stems from
13 Cicero’s De Officiis, and that Roman republicanism is compatible with civic nationalism.A remaining reference to Cicero is in fact
14 a reference to the work of Renaissance writers who shared Cicero’s belief in the ‘common good’. Maynor (2003) contains only
15 five references to Cicero but no analysis of Cicero’s work (or that of any other Roman writer).
16 9 For a discussion on the relationship between dignitas and auctoritas, see Wood, 1988, pp. 149–51.
17 10 Both Wood (1988, pp. 123–8) and Asmis (2004) provide insightful discussions of Cicero’s definition of res publica and civitas as
18 forms of ‘state’. Both argue that for Cicero the term civitas is closer in definition to the Greek politeia, as opposed to the more
19 ambiguous notion of a polis which may simply connote a form of urban dwelling as opposed to a form of political organisation.
20 Wood emphasises the institutional and constitutional aspect of civitas as against the ‘normative and emotive’ term of res publica.
21 Asmis emphasises the abstract and general nature of civitas as against the patriotic meaning of res publica. Both terms refer to ‘state’
22 in varying degrees of abstraction. Schofield (1995) discusses the relationship between the res publica and the res populi, which
23 illuminates the reasoning behind Cicero’s dismissal of democracy as a corrupt form of ‘state’.
24 11 The term used by Cicero is a state (civitatibus) ‘where everyone is ostensibly free’ (Cicero, 1928a, I. 47).
25 12 This last point is common among the arguments of anti-democrats. For an alternative depiction of the status of property and
26 individual liberty under the Greek democracies, see Edge, 2009; Wood, 1989.
27 13 This is not to say they had rights of democratic participation.
28 14 Asmis (2005) argues that Cicero’s emphasis on concord, self-restraint and justice in the Roman constitution is framed as a response
29 to Polybius.
30 15 ‘Equality’ here refers to the universal distribution of juridical rights (not political or economic rights) among the citizenry.This
31 ‘high degree’ of equality is, in comparison to Athenian democracy, the bare minimum of any condition of freedom. This
32 interpretation of Cicero’s usage of ‘equality’ rather than ‘equity’ is supported by Asmis (2005, p. 403).
33 16 Wirszubski (1960, p. 36) defines dignitas as a form of personal ‘worthiness’ that ‘attaches to a man permanently, and devolves upon
34 his descendants’.
35 17 See Aristotle, 1984b,V. 1131a22–1131b14. For an account of the aristocratic nature of Aristotle’s conception of proportionate
36 equality, and its opposition to the democratic conception of numerical equality, see Wood and Wood, 1978.
37 18 This is not to say that wealth is the sole or even primary basis for the distribution of offices and honours.Virtue, and adherence
38 to the ‘gentlemanly ideal’, are also necessary. See Wood, 1988, pp. 100–4.
39 19 Asmis (2004) demonstrates Cicero’s use of popularis and populari potestas to refer to the democratic rule of the people (as opposed
40 to kingship or aristocracy) and his use of res populi to refer to the ‘property of the people’ that forms the popular basis of the Roman
41 state.
42 20 ‘Authoritarian’ in the sense that liberty must recognise the auctoritas of the senate and the dignitas of the ‘best men’ as opposed to
43 the ‘masterlessness’ of democratic liberty.
44 21 For a discussion of Cicero’s conception of natural law, see Asmis, 2008.
45 22 This interpretation finds support in Wood (1988) and Lintott (1999). Some scholars have noted that Cicero innovated on the
46 existing Roman constitution through the establishment of the rector civitatis or moderator rei publicae.Articulated in De Republica but
47 absent in De Legibus the ‘rector’ or ‘moderator’ is said to refer to a charismatic leader whose role cannot be reduced to any
48 constitutionally defined office. For more on this, see Asmis, 2005; Marquez, 2011.
49 23 Against Asmis (2005), Straumann (2011) argues that Cicero’s legal code articulated in De Legibus represents a codification of natural
50 law.
51 24 The exception is his moderate praise for the Gracchi in his speech against the agrarian laws made to the popular assembly (De
52 Lege Agraria Oratio Secunda in Cicero, 1930). His most polemical treatment of the populares or ‘men of the people’ is found in Pro
53 Sestius (Cicero, 2006), where he brands the populares as threats to the republic.The speech argues that the populares are not popular
54 at all; rather, the ‘best sort of men’ such as Cicero, who side with the traditional ‘republican’ constitution – in particular, the primary
55 role granted to the senate within that constitution – are the real ‘popular’ men of the republic.
56 25 Any political change Cicero articulated in the Republic and the Laws was, according to Lintott (1999, pp. 214–32), an anachronistic
57 reassertion of optimate principles designed to reinforce aristocratic power.
58
59 1
bs_bs_query
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64 Asmis, E. (2004) ‘The State as a Partnership: Cicero’s Definition of Res Publica in His Work On the State’, History of Political
65 Thought, 25 (4), 569–99.
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POLITICAL STUDIES: 2013
 14 G E O F F K E N N E DY

1 Asmis, E. (2005) ‘A New Kind of Model: Cicero’s Roman Constitution in “De Republica” ’, American Journal of Philology,
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this would normally be on the first page).

7. Drawing Markups Tools – for drawing shapes, lines and freeform

annotations on proofs and commenting on these marks.
Allows shapes, lines and freeform annotations to be drawn on proofs and for
comment to be made on these marks..

How to use it
 Click on one of the shapes in the Drawing
Markups section.
 Click on the proof at the relevant point and
draw the selected shape with the cursor.
 To add a comment to the drawn shape,
move the cursor over the shape until an
arrowhead appears.
 Double click on the shape and type any
text in the red box that appears.

For further information on how to annotate proofs, click on the Help menu to reveal a list of further options:

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