The political limits of “the rule of law” in contemporary Russia and republican Rome
by David Rafferty
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.