Discovering a Higher Law: Cicero’s Creation of a Roman Constitution A DISSERTATION SUBMITTED TO THE FACULTY OF UNIVERSITY OF MINNESOTA BY Andrew James Willey IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY Christopher Nappa, adviser March 2015 © Andrew Willey 2015 i Acknowledgements This project has numerous debts, both intellectual and personal. Firstly, I wish to thank the faculty and staff of the Department of Classical and Near Eastern Studies. All were generous with their time and expertise and this dissertation could not have been completed without their support. In addition, this project benefitted materially from the support of the University of Minnesota’s Doctoral Dissertation Fellowship. Within the department, I would like to single out a few exceptional individuals for special thanks, as they have gone above and beyond the call in supporting this project. It was Spencer Cole who inspired me in his graduate seminars to look seriously at Cicero, and who convinced me there was much more yet to be said. George Sheets has shown unflagging support and was my guide to the complex world of Roman law and legal history. I owe great thanks to Nita Krevans both because of her dedicated service as DGS during my years as a student, but even more so for her warm friendship and for convincing me to pursue choral singing again. Christopher Nappa’s wisdom and keen insight throughout the process of writing has proved invaluable time and time again. He has been throughout my graduate career an exemplary teacher, scholar, and mentor. In addition, I owe great thanks to my compatriots in the trenches of the ‘Grad Office,’ in particular Anna Everett and Aaron Beek, Christine Lechelt, Rachael Cullick, Cynthia Hornbeck, Don Burrows, Betsy Warner and so many others. The supportive atmosphere, coffee klatches and happy hours were essential in helping me perservere through this long process. I also owe an enormous debt of gratitude to my mentor in teaching, Stephen Smith. Working with him has taught me how to be a better teacher and communicator, and whatever I am now in that respect I owe to his wisdom and sage advice. My greatest debts, however, are personal. I was inspired in my studies by my father, James Willey. It was he who first planted and nurtured my love of history, and who never balked at buying yet another book. I have no doubt, too, that even Cicero would salute his decades of public service to his home town of Elburn, IL. My greatest debt, however, is to my wonderful partner, Jennifer Gagnon. When I was contemplating abandoning the project, it was Jennifer’s interest and encouragement alone that drove me to continue. I am, simply put, in awe of the unfailing love and support she has shown me throughout this project. She has read every draft, debated every issue, and never shown anything but unflagging support. I could not have done it without her. Andrew Willey March 2015 ii Dedication Parentibus Optimis et Bene Meritis iii Abstract Political legitimacy is often characterized as a particularly modern concern, and, it is argued, one never broached by ancient political thinkers. The electoral contests of the Roman Republic, under this traditional view, have been seen as merely the marshalling of public support and the quid pro quo infighting of the great Roman families. A completely different story is revealed, however, by a close reading of Cicero’s early speeches. The political atmosphere of the Republic, far from being an ideologically sterile wasteland, was in fact a fertile source of political ideas and competing political ideologies. It was in these early speeches, after all, that Cicero began building his public reputation. Although he was a newcomer to Roman politics (novus homo - ‘new man’), his early speeches reveal the great effort (and risks) he took to articulate a coherent political program: a set of ideas about the Republic, its laws and constitution that set him apart from his contemporaries. Thus this project shows how Cicero’s early private speeches, the Pro Roscio Amerino, the In Verrem, and the Pro Caecina, should be read as important steps in the construction of both Cicero’s political thought and his public persona. In these speeches, Cicero laid out his vision for the Roman Republic, and this vision is, in its essence, a constitutional vision. His earliest speeches emphasize, repeatedly and consistently, the necessity of building a constitutional and limited Republic as the only route of escape from the troubles which were vexing Roman society. A government is made legitimate, Cicero argues, by those things it chooses not to do. Instead, a legitimate government recognizes and acknowledges that certain actions are simply unthinkable, illegitimate, and fundamentally unconstitutional. This vision of a limited and legitimate Res Publica, then, helps to explain some of Cicero’s electoral appeal in his own time and his continuing influence in our own. iv Table of Contents Chapter 1: Introduction Discovering a Higher Law: Cicero’s Creation of a Roman Constitution 1 Chapter 2 Legitimacy and the Res Publica Sulla Vivo: Cicero’s Pro Roscio Amerino 41 Chapter 3 Redeeming Sulla’s Republic: Cicero’s Political Program in the Verrines 86 Chapter 4 Sulla’s Illegal Law: Ius, Lex, and Legitimacy in Cicero’s Pro Caecina 137 Chapter 5: Conclusion Recovering Cicero’s Constitutional Vision 188 Bibliography 204 1 CHAPTER ONE INTRODUCTION Discovering a Higher Law: Cicero’s Creation of a Roman Constitution It may seem paradoxical to speak, as the title of this study does, of one person discovering a higher law and creating a Roman constitution. For the doctrine of a higher law and a legitimating constitution is usually thought to consist in recognizing or obeying a pre-existing law code or set of customs, whether written or no, rather than deliberately altering, creating, or discovering such a doctrine. Perhaps the defining characteristic of a higher law concept or constitution is precisely that it is considered unchanging and inevitable, that it is thought to have always existed or at least since some easily recognizable founding event. It becomes a part not just of a state’s political and legal landscape, but is treated as if it were virtually a part of the natural environment; for of itself a legitimating constitution defines the very boundaries of the political. Obeying (or claiming to obey) such a higher law conception is a political ideology generally known as constitutionalism.1 So how, then, can we speak of one man, even Marcus Tullius Cicero, both discovering a higher law and creating a Roman constitution? The answer lies in Cicero’s court speeches, and in the fact that our term constitution carries an inherent 1 The term constitutionalism is much debated and has an amorphous quality which leads many scholars to avoid defining it. My own views on how to define this difficult term will become clear later on. Most contemporary definitions emphasize, as I do, the notion of legal or constitutional limits, e.g. McIlwain, Constitutionalism: Ancient and Modern, pg. 21: "but the most ancient, the most persistent, and the most lasting of the essentials of true constitutionalism still remains what it has been almost from the beginning, the limitation of government by law. ‘Constitutional limitations,’ if not the most important part of our constitutionalism, are beyond doubt the most ancient.” See also Waluchow, "Constitutionalism", The Stanford Encyclopedia of Philosophy (Spring 2014 Edition), Edward N. Zalta (ed.) s.v.: “Constitutionalism is the idea, often associated with the political theories of John Locke and the founders of the American republic, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.” 2 duality: for it is at once a historical or allegedly factual description of what a state’s political institutions are and, at the same time, a political, legal, and ideological argument about what those institutions should be. Cicero’s constitutionalism, as we shall see, was inherently creative in putting forward a consistent argument for a legitimate Roman constitution, and of a recognizably and surprisingly modern character. The importance of constitutions and constitutionalism for the later history and development of western civilization can hardly be overstated. At the same time, despite routine nods to precursor ideas in the ancient world, constitutionalism of this type is usually thought to be a fundamentally modern conception, rooted most firmly in the political thought of John Locke and the Glorious Revolution in England.2 A few scholars have, however, noted the important Roman contribution to constitutional thought. McIlwain, for instance, long ago recognized the importance of the Roman Republic to the development of constitutional thought.3 His notion of Roman constitutionalism, however, emphasized the fundamental notion of the sovereignty of the populus, which he contrasted to absolutism: “The true essence of Roman constitutionalism… lies in the older, deeper principle that the populus and none but the whole populus, can be the ultimate source of legal authority. The fundamental doctrine underlying the Roman state, its true guiding spirit, is constitutionalism, not absolutism.”4 More recently, Wood has 2 Schmitt, Constitutional Theory, identifies its first roots in the Magna Carta and 1688 Declaration of Rights, pg. 97-99, but John Locke "provides the classic Rechtstaat formulations" pg. 182; Wolin, Politics and Vision, a widely praised history of political thought, also roots constitutionalism in this period: "'Constitutionalism' is a modern creation. Its theoretical debts are to Harrington, the English Levellers, Locke, Montesquieu, and the American Federalist," pg. 404. 3 McIlwain, Constitutionalism, Ancient and Modern, pg. 39: "The oftener I survey the whole history of constitutionalism the more I am impressed with the significance and importance of the republican constitution of Rome in that development." 4 Ibid, pg.