By DAVID DYZENHAUS
Review of Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution, by Benjamin Straumann
New York: Oxford University Press, 2016
Salus populi suprema lex esto—the safety of the people is the supreme law. If Cicero’s maxim is correct, even constitutionally entrenched rights afford us only a limited protection against the state. When the safety of the people is under threat in an emergency situation, the law that governs is not the law of legally entrenched rights, but a judgment by some powerful office holder, for example, the president, about what it takes to secure the safety of the people. Rights are therefore neither inalienable nor illimitable since some body or person—in Cicero’s time the consuls—may legitimately strip people of their rights or severely limit their rights in at least one kind of situation, the situation of an emergency.
Cicero’s maxim has thus provided a kind of anchor over the centuries for theories of government that assert that in times of political stress we should not count on the law and the constitution to save us. All that we can rely on is the virtuous character of those who have the power to decide the existential questions that arise. The kind of reason that goes into their decisions is different in kind from the exercise of justification in which courts and other legal institutions engage. It is, as the European tradition puts it “reason of state”, or as the Anglophone tradition terms it, an exercise of prerogative—a kind of judgment that takes place outside of the legal order, which may involve acting illegally according to the law of the time, and which is not amenable to being scrutinized or second-guessed by the ordinary institutions of government, including the judiciary. Thus from Machiavelli (1469-1527) to Carl Schmitt, the twentieth century German fascist theorist of sovereignty and emergency, it has been argued by thinkers in these traditions that in times of crisis what matters is not the legal and constitutional order, but the decision of the leader.
In Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution, Benjamin Straumann argues that Cicero’s maxim has long been misinterpreted. Cicero did not mean that the maxim placed consuls above the law. Rather, he offered a supreme principle that governed their conduct in accordance with the law. For the consuls remained subject to law in at least the sense that they were subject to fundamental or constitutional law, which is law that meets two conditions. First, it is more entrenched than other rules and so less “susceptible to change.” Second, it consists of rules that are politically important, that is, of “great substantive importance in that they govern the institutions through which political power is exercised.”
Straumann’s point is not confined to getting Cicero right. Rather, the correct interpretation of the maxim is key in his book to understanding the institution of emergency dictatorship within the Roman legal order as subject to law, as we say today subject to the rule of law. And since the maxim is taken to stand for the truism that in times of emergency one or other political authority within the state structure may legitimately act unconstrained by law, the correct understanding helps to make a wider point about political and legal order in general. The safety of the people may not be legitimately secured by acting outside of law. Indeed, the argument may be pushed even further. It is not only that the safety of the people may not be legitimately secured by acting outside of law, but also that the safety of the people simply cannot be secured by acting outside of law since for Cicero “the people” is a quintessentially juridical concept.
Straumann’s study shows that central to the Roman constitutionalist mode of responding to crises was the preservation of, first, the institution of provocatio—the citizens’ right of appeal against decisions which affected them negatively by those who held high office—and, second, of the principal legislative institutions of the state and their modes of lawmaking. Such preservation was seen as a matter of the higher order constitutional or natural law that expressed the normative core of the republican idea of “the people” of a political and legal order.
In addition, Straumann sketches the trajectory of these ideas through Jean Bodin (1530-1596) and Thomas Hobbes (1588-1679) to the present. Key to this trajectory is the sense in which Bodin and Hobbes conceived the absolute authority of the sovereign. The idea that the sovereign wields absolute authority has led to an association of both thinkers with authoritarianism, a political ideology in which the individual has an unconditional obligation of obedience to the laws of the political sovereign who happens to hold power in his or her political order. And this obligation holds whatever content the laws have. De facto authority or authority in fact is considered to be de iure or legitimate authority.
It may thus seem that there is a direct line of thought from Bodin and Hobbes to the authoritarian political theories of the twentieth century, notably Schmitt. In fact, Schmitt relied heavily on Bodin for his argument that the political sovereign has legally unlimited and illimitable authority not only to respond as it sees fit during an emergency, but also to decide when there is an emergency. In addition, he regarded himself as the twentieth century Hobbes.
Now the intellectual debts and hubris of one German thinker would be of no great moment were it not for Schmitt’s looming importance in legal and political theory as scholars reacted to the “war on terror” declared after 9/11. In addition, his claim that politics or, as he called it, “the political” is fundamentally about the distinction between friend and enemy—about who is to be excluded from the political community—has become increasingly influential in scholarly attempts to understand the implications of what looks like growing disillusion with what we can think of as the western, liberal constitutionalist project. That is, the disillusion is with the bid to establish political orders on the basis of entrenched legal commitments to universal individual rights rather than on the substantive commitments of particular cultural, religious or ethnic communities. There is a deep connection in Schmitt’s political and legal theory between these two issues. In his view, when a political order is under severe stress the question as to who in fact holds sovereign authority will be answered. As the famous opening line of his Political Theology states: “Sovereign is he who decides on the exception.” And that decision, at least any successful or effective sovereign decision, will be one that makes the distinction between friend and enemy, thus establishing the “substantive homogeneity” of “the people” of the political community.
Straumann, I should note, hardly mentions Schmitt in his book. But his one point of serious engagement with Schmitt’s work is helpful to an understanding of the significance of a study such as his for the present and in particular for the current versions of the constitutionalist and the reason of state traditions. For once we locate these versions within their respective traditions, we can see that their arguments operate in three dimensions.
First, there is the empirical dimension—how institutions in fact respond to emergencies, where power is in fact located in our societies, and so on. Second, there is the normative dimension—how institutions should respond, how they should be reformed in order so to respond, etc. Third, there is the historical dimension, which is a complex mix of the empirical and the normative in that the past is a resource for making claims about both how it was thought things should work and how those normative ideas in fact worked. Moreover, in light of this third dimension, it becomes possible to appreciate that there may be no clean division of labour between the first and second dimensions—work in each is also a complex mix of both, even though the influence of the other might be wholly implicit.
This understanding of methodology is, of course, controversial. There are historians who claim that the past has to be understood on its own terms and so disdain attempts to mine the past for “presentist” concerns, empiricists who think that all that matters is the facts, and political theorists and philosophers who think that all that matters is getting their “ideal” theory right, unsullied by details about how the world is.
This is not the occasion to enter a methodological controversy. I want only to highlight the three dimensions that are implicated in debate in legal and political theory, once one understands particular positions as located within a tradition of thought. I have already suggested that for the reason of state tradition, Cicero’s maxim that the safety of the people is the supreme law provides a kind of anchor for claims about the contemporary world. That is, from the fact that the maxim was coined in order to explain the Roman response to emergency and then has been repeated down the centuries as scholars in later eras have grappled with the same kind of problem, we can learn that there is no fully constitutional or legal response, and so that the ideal that animates the constitutionalist tradition is unattainable.
Of central importance in this regard is the work of the great German historian of the classical world, Theodor Mommsen (1817-1903). As Straumann shows in his extensive engagement with Mommsen, he was chiefly responsible for the view that some of the dictators appointed by the Romans to respond to emergencies wielded “constituent” not “constituted” powers, that is, their powers were legally unlimited, and so the only law that prevailed was no law at all, since decisive was their judgment as to what was required to secure the safety of the people. And this view then formed the basis for the theories of Schmitt and others in the reason of state tradition in the twentieth century. Straumann provides a forceful argument that Mommsen was wrong. In both theory and practice, the Roman dictators were bound by the constitutional law of the Roman Republic, so that their judgments as to what would secure the safety of the people were the judgments of what would achieve that end within the constraints set by the most fundamental or constitutional commitments of their legal order. Schmitt’s place in Straumann’s argument is thus limited to noting that, given that Schmitt’s theory of emergency powers is based on Mommsen’s mistake, we have good reason to doubt the worth of Schmitt’s contribution, as well as the claims of all whose theory of emergency dictatorship turns explicitly or implicitly on an understanding of Cicero’s maxim in the context for which he coined it.
However, the wider implications of Straumann’s original, beautifully crafted and exceptionally erudite exploration of Roman political thought are, I think, nicely brought out by considering how an argument about classical thought and institutions may bear on our contemporary concerns and debates. In particular, Straumann brings to the surface an idea of political community as a “jural” community, which he had explored in his first, equally impressive book, which dealt with the natural law theory of Hugo Grotius (1583-1645).
The idea of a jural community is a deeply political one, a fact of some importance since critics (including Schmitt) of the liberal commitment to constitutionalism often accuse liberalism of trying to suppress political conflict by displacing it from the political realm to the courtroom. There is some merit to this charge, but only some.
As Straumann explains, the jural conception of politics emerged against a backdrop of the decay of Roman political institutions that made vivid the possibility of the disintegration of society into the anarchy of a state of nature and so raised as urgent questions the location of sovereignty in and the fundamental commitments of the political order. Simply put, the question was raised of the nature of the Roman political order.
The Roman answer, as formulated principally by Cicero, rejected Greek theories that asserted a continuity between ethics and politics such that there is some highest ethical good at which politics aims. Instead, it argued that politics is limited by “law-like constitutional principles” so that the highest officers of state are in charge of “the people” only because it is the case that these principles are in charge of the officers. As in Hobbes who finished Leviathan at a time when civil war had also made vivid the possibility of the disintegration of his society into anarchy, the point of political theory is to establish the principles of order that mark the distinction between a condition in which individuals are subject to unmediated coercive power and a “civil” condition in which they interact with each other within a stable and secure framework of laws.
A mark of this conception of the political is then that political order is always a legal order, in that the subjects of the law can demand of officials that they justify their acts by showing that there is a basis or warrant in the law for these acts, not only in the positive or enacted law of the order, but also (where relevant) in the constitutional principles of that order. This, it is important to note, not a merely formal requirement. Laws that were by formal criteria perfectly valid were considered to be illegal because they violated constitutional principles when they sought the abolition of provocatio or amounted to a bill of attainder in being directed against named, particular individuals instead of the citizens at large. Such principles will come more to the fore in times of stress and it is not the case that their application will be uncontroversial. But even when there is deep controversy over their application, they are still considered by those in disagreement as the principles that constitute the political realm, so that the disagreements are to be worked out within the institutional structures of that realm.
The merit in the charge that liberalism requires the displacement of politics is that it alerts us to the fact that the liberal conception of politics is a jural one. But such a conception does not require that the courtroom be the main arena for political contest, only that when individuals are subject to state coercion, they are able to appeal to an institution independent of the coercing official that will certify whether the official is acting within his or her legal authority, where that authority is understood as constituted both by enacted law and constitutional principle.
Where the charge is wide of the mark is demonstrated by the fact while liberalism’s conception of politics is jural, the jural conception of politics is not liberal. And it is not liberal at least in the sense that, as Straumann’s book shows, the jural conception was first conceived by the Romans, and no one would accuse the Romans of liberalism. Moreover, it is worth taking seriously the possibility that in societies in which liberalism, more accurately one or other version of liberalism, has a claim to be the dominant ideology, because that ideology is committed to the idea of a jural community, it is also committed to subjecting itself to the kinds of institutionalized contestation of its values that such a polity requires.
There is, of course, also a sense in which the commitment to a jural conception of politics is liberal. The very idea that individuals do not have to consider themselves as striving to achieve some highest ethical good, but simply as members of a community in which coercive state action has to be justified as according to law may, one can plausibly suppose, favour liberal ideologies over others. Indeed, the claim that authority is a matter of reasoned justification is strongly associated with both liberalism and the constitutional tradition. But notice that that claim opens up the prospect of a realm of politics which is independent of any conception of the highest ethical good for individuals, and that the alternatives in the reason of state tradition are all about closing down political conflict by a legally unconstrained decision. Somewhat ironically, one may then argue that if Schmitt is right that political theory needs a conception of the autonomy of the political, it is to be found in the constitutionalist tradition that, as Straumann so effectively shows, was first articulated by Roman political theorists and jurists.
Posted on 25 October 2016
DAVID DYZENHAUS is University Professor of Law and Philosophy at the University of Toronto. His books include Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar, (Oxford University Press, 1997) and The Constitution of Law: Legality in a Time of Emergency, (Cambridge University Press, 2006).