Power and process under the republican “Constitution”

Republican Rome had no written constitution. It did, however, have an array of remarkably tenacious continuing institutions (in the broadest sense of the term), some of which were or at least seemed virtually primeval. And at all times it had men who were willing to make confident assertions - as senators, magistrates, priests, or specialists in jurisprudence, or in more than one of these roles at once - about what was legally possible under an often fuzzy and ever evolving political and administrative system. A few went a bit further than ad hoc pronouncements. Certainly by c. 200 b.c., the Roman elite was taking an academic interest in the city-state's legal history. In the developed Republic, at any rate, some important colleges of priests maintained books of precedents; the senate's past decrees could be consulted in written form. Cicero's On Laws, to single out just one of his contributions to political philosophy, actually contains a short (idealizing) constitution, a theoretical piece that treats Rome's magistracies and some aspects of the state religion. One must add that a well-connected outsider, the Greek Polybius, writing in the mid-second century b.c., left us an invaluable, though frustratingly selective and overschematic, sketch of the Roman state as he saw it. But, again, the Romans of the Republic never made a comprehensive attempt to formalize their public law. It may be worth considering, if only for a moment, why not. One basic reason is that the people most likely to draft such a document - the leading members of Rome's senatorial establishment - were in all periods fully conscious that writing things down served only to cut into their own class prerogatives and influence. Another factor is that, by the time a Latin legal literature was first developing (say, c. 200 b.c.), the political system was even in its essentials too vast to take in as a whole. For some centuries, each successive year at Rome had seen the complicated interplay of individual (mostly annual) magistrates and quasi-magistrates with each other and with a number of strong but hardly monolithic corporate entities - most vitally, the senate (the body that advised the magistrates), the people (i.e., Latin populus, patricians and plebeians together) and plebs (the body of nonpatricians) in their several organized and even unorganized forms, and various boards of priests.