Roman Republics

Using the Roman past to illuminate the present

The political limits of “the rule of law” in contemporary Russia and republican Rome

Anne Applebaum’s “How He and His Cronies Stole Russia”, New York Review of Books, 18 December 2014 issue, takes a look at the Russia which has emerged since the fall of the Soviet Union. Applebaum argues that the conventional narrative of a stalled and then reversed “reform” movement is the wrong story. Instead, the important narrative is the creation of an authoritarian kleptocracy under Putin which really has nothing to do with liberal democracy at all.

It might seem like 21st century Russia is a long way from republican Rome, but there was one idea in the piece which really struck a chord:

That corruption was part of the Russian system from the beginning is something we’ve long known for a long time, of course. In her book *Sale of the Century* (2000), Chrystia Freeland memorably describes the moment when she realized that the confusing regulations and contradictory laws that hog-tied Russian business in the 1990s were not a temporary problem that would soon be cleaned up by some competent administrator. On the contrary, they existed for a purpose: the Russian elite wanted everybody to operate in violation of one law or another, because that meant that everybody was liable at any time to arrest. The contradictory regulations were not a mistake, they were a form of control.

Rome created its first permanent courts in the mid-second century BCE and by the early first century many crimes fell within their jurisdiction: extortion by officials (repetundae), improper electioneering (ambitus), peculation, public violence (vis) and, vaguest of all, treason (maiestas).

Importantly for my purposes, stricter and stricter laws with heavier and heavier penalties kept being added to the statute book. So, for instance, the penalty prescribed by the first extortion law (146 BCE) was simple restitution. A generation later (c. 123 BCE), the Gracchan law called for double restitution and by the time we get to Caesar’s law (59 BCE), some offences were punishable by exile.

The same applied to electioneering laws: early versions barred guilty men from standing for the same office for ten years, later versions barred them forever and threw them out of the Senate, and the final versions under the Republic may well also have named exile as the penalty.

Now, it is well known that republican Rome had an “imperfect” rule of law. Prosecutors and defending advocates could bring in a lot of irrelevant material in an attempt to sway the jury, and pressure on juries (whether by intimidation or bribery) was fairly common. I’ve never felt this surprising: defendants normally had their political existence at stake.

But what if we read the strict and punitive laws of the late Republic through the lens of the above quote on contemporary Russia? As in Russia, the Roman laws by the 50s BCE had become so comprehensive that any magistrate or governor or candidate (that is, anyone who was politically important enough to become a target) could reasonably be held to have broken the law. Hence, innocence was not a possible way to avoid prosecution. The only route to safety was political power.

But what if that was built into the legislation to start with – what if the potential criminalization of most activity by senior politicians was a feature not a bug? That could explain a lot. It could explain why electioneering laws were usually passed by consuls, i.e. by men who had reached the top of the tree, had no future need to stand for office and so would not themselves be liable under their law. It could explain why the strictest laws were passed by men confident of their political power, such as Pompey, Crassus and Caesar.

We’ve long known that, in the lead up to the civil war in 49, Caesar feared that if he returned to Rome without an army, he would find himself prosecuted and sent into exile. Perhaps it might be helpful to remember that this was a threat hanging over the head of any politician in the late Republic: one misstep and your career could be over.

Thoughts on “Still Not the End of History”

Second, the idea that there is a “historical law” guiding the development of societies is fanciful. Even if there were some weird sort of pattern which suggested that “liberal” ideas did indeed “win out” in the past, it wouldn’t be anything more than a mere curiosity. It wouldn’t prove anything about liberalism in itself, nor would it say anything about the future. It would just tell us what happened before. To read meaning or predictive power into any pattern in the past is, in fact, about as intellectually respectable as reading tea leaves.

Timothy Stanley and Alexander Lee – The Atlantic


 

The last sentence is a provocative statement, designed to provoke a response. What is that response? Well, it’s a valid statement if it means “if you see a pattern in the events of the past, then that pattern will be repeated in the future”. That, I agree, is intellectually fanciful. But the broader point, that we cannot read significance in the past, is wrong: the future is produced by the past, and therefore the patterns of the past must have predictive power. As historians, we explain events in the past by finding causes for them. In the same way, historians of the future will explain the events of our own day by reference to causes in our past. Patterns of behaviour originating in our past, continuing through the present into the future will produce that future – at least in part.

But which patterns? That’s the key question. We humans are very good at seeing patterns, and the known past is so vast, so complex, with so many intertwining lives and forces and events, that historians (and non-historians) are able to see an almost infinite number of patterns. In history, we trace historical causation – but historians tend to disagree on what the causes of any one event were. And it is important to recognize there are many causes of even the simplest event, and that we can see “causation” itself in many different ways: we might talk of short- and long-term causes, of preconditions and triggers, and so on.

What this boils down to is this: we are in the present, and we have no way of knowing which of the forces shaping our world will continue to shape the future, and which will be historical dead ends.  We know the past will create the future – but we don’t know in what way.  So an intelligent European observer in 1785 or 1910 would probably not have predicted that their world was about to crash in ruin.  (Or, such an observer in 1715 would not have predicted a generation of relative peace and stability.)  There were certainly signs that pointed in that direction – but there were lots of signs, pointing in all sorts of directions.  There was, and is, no way to reliably tell the historical signal from the noise.

To look at this from the Roman point of view: explaining the fall of the Roman Republic has been one of the favorite games of historians for centuries. Yet even leaving aside the date we assign to that fall (on which see Harriet Flower’s book Roman Republics, which makes a good case for seeing 88 BC as the end of one particular version of the Republic), it is also legitimate to ask: why didn’t the Republic collapse in 121, with the murder of C. Gracchus? Or in 100 (Saturninus’s killing)? Or in 71, or 67 (occasions when civil war over Pompey’s excessive political demands was nearer than many historians acknowledge)? Indeed, the “Big Question” in republican studies today is not why the Republic collapsed when it did, but rather why it survived for so long. We are able to trace many patterns in the first century pointing towards collapse, but also many pointing towards stability. Questions arising from that are: why did the forces of destruction prove stronger, and would an acute observer at the time (and M. Caelius Rufus always springs to mind as an acute observer in 50) have necessarily predicted that the destructive forces would win out?

 
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