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POLITICAL STUDIES: 2013

doi: 10.1111/1467-9248.12037
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Cicero, Roman Republicanism and the Contested

Meaning of Libertas

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Geoff Kennedy

Durham University

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Despite growing interest in neo-Roman republicanism, few republicans examine the character of Roman republicanism, either in its constitutional practice, its social relations or in the works of its primary defenders. This article
examines Ciceros two systematic dialogues of political philosophy De Re Publica and De Legibus in order to assess
the status of liberty as non-domination in these texts. It argues that, far from liberty as non-domination being the
operative conceptual ideal in Ciceros republicanism, concordia along with equity as a form of proportionate equality that
depends upon the recognition of substantive differences of status and power serves as the foundation of his republican
political thought. This form of ordered liberty is offered as an alternative to the conception of liberty as a form of
non-domination that Cicero attributes to the democracies of ancient Greece and the populist project of popular
reformers such as Tiberius and Gaius Gracchus.

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Keywords: republicanism; liberty; Cicero; Rome

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In recent years,neo-republican scholars have articulated a republican conception of liberty

as an alternative to that of the negative and positive conceptions of liberty. These
contributions to political philosophy turn to the history of Roman republican political
thought as the basis of this alternative tradition.According to Quentin Skinner (1978; 1984;
1993; 1998; 2002; 2006), republican writers in Renaissance Italy such as Machiavelli sought
to recover the Roman tradition of libertas and free states. In seventeenth-century England
neo-Roman writers inspired by Machiavelli as well as by Cicero and the Roman historians
argued that freedom is not merely freedom from external interference in the Hobbesian
sense; rather, freedom means independence from the will of others. From this perspective,
a constraint is not characterised merely in terms of coercion or interference, but rather in
terms of a persistent condition of dependence on the arbitrary will of another being.
Similarly, Philip Pettit (1997) has articulated a theory of republican liberty as a form of
non-domination as opposed to the non-interference prized by liberals. Other republican
theorists have sought to elaborate republicanism further as an alternative to liberalism and
communitarianism in the modern world (Maynor, 2003; Viroli, 2002).
In doing so, republican theorists argue that Isaiah Berlins (1958) dichotomy of negative
and positive liberty is unrepresentative of the most prominent historical articulations of the
concept of liberty. For Pettit (1997, p. 18), the negativepositive distinction has served us ill
in political thought, by perpetuating the myth that there are just two ways of understanding liberty. The irony is that Berlins conception of negative liberty as the authentic
conception of liberty stems initially from Hobbes definition, which serves to depoliticise
liberty and make it compatible with absolutism. The neo-Roman conception of liberty,
however, is neither the negative nor the positive liberty described by Berlin and Constant
(Viroli, 2002, p. 40). Existing within the interstices of negative and positive liberty,
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republican conceptions of freedom defy such simple classification. On the one hand,
republican liberty is clearly not a form of positive liberty; it requires neither self-mastery
nor self-realisation in the form of political participation. As Pettit (1997) contends, the
constitutional role of the plebeian tribune established as a result of the Conflict of the
Orders was merely to intercede in the affairs that took place between the senate and
the plebs.1 It did not empower the plebs in the way that Athenian democracy empowered the
demos. On the other hand, the notion that freedom depends upon non-domination as
opposed to non-interference means that republican liberty is not the equivalent of Berlins
conception of negative liberty.2 For example, under Berlins definition, a slave could
conceivably be at liberty in so far as his master decided not to interfere with his physical
movement. For a republican, the condition of slavery implies a form of dependence on the
will of another that results in a condition of domination regardless of any act of
interference. On the other hand, the non-arbitrary interference of the state in the form
of the rule of law is considered to be both compatible with and constitutive of the liberty
of the individual in a free society. Liberty does not, in other words, reside in the silence of
the laws.
The insistence that neo-Roman liberty is not a form of positive liberty differentiates it
from conceptions of democratic self-mastery that are said to be rooted in the Athenian
tradition.3 It is to Rome, therefore, that the republican tradition traces its preferred notion
of liberty. For Pettit (1997, pp. 56), it is the tradition associated with Cicero at the time of
the Roman Republic, carried on through the Renaissance by Machiavelli, through to the
early modern period by Harrington and eventually to eighteenth-century England,
America and France. For Skinner (1993, p. 300), the tradition is traced back to those writers
whose greatest admiration had been reserved for the doomed Roman republic: Livy,
Sallust, and above all, Cicero. Maurizio Viroli (2002, p. 105) states that the classical theory
of the res publica is found in the works of Roman political authors and historians ...
especially Ciceros De Re Publica and De Officiis.
Despite this emphasis on the Roman aspect of republicanism, few republicans examine
the character of Roman republicanism, in its constitutional practice, its social relations or in
the works of its primary defenders. In Pettits text, a postscript has been appended to
elaborate on the Roman origins of his conceptualisation of liberty as non-domination.This
postscript, however, does nothing to illuminate further the realities of republican Rome, nor
does it attempt to probe deeper into the works of Roman republican writers. Rather, it
merely emphasises, to a greater degree, the intellectual debt to republican Rome.This blind
spot in the republican literature exposes it to a number of critiques: the first pertaining to
the reality of republican liberty as a form of non-domination; the second pertaining to the
status of liberty as a form of non-domination in the works of key republican writers such
as Cicero.
The republican understanding of Roman liberty is dependent upon the work of Chaim
Wirszubski (1960), whose analysis of the Roman conception of libertas is the primary
Roman source among all of the republican scholars mentioned above.4 Wirszubski demonstrates that for the Romans liberty referred to the liber, that is, the freeman in opposition
to the slave. To be free means to be capable of possessing rights of ones own, and this is
possible only if one is not subjected to someone elses dominium. Liberty, therefore,
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consists in the capacity for the possession of rights, and the absence of subjection
(Wirszubski, 1960, p. 1). This abstract definition of liberty as an absence of dominium
forms the basis of both Pettits philosophical reconstruction of republicanism and Skinners
historically oriented study of the neo-Roman tradition in early modern Europe.
Yet Wirszubskis analysis of republican liberty is more nuanced than its treatment at the
hands of contemporary republican theorists. While attempting to comprehend the fundamental principles of libertas at an abstract level, Wirszubski (1960, p. 5) contends that this
abstraction is only for analytical purposes, for the nature and extent of libertas are
determined by the nature and form of the Roman constitution. More importantly,
Wirszubski identifies a tension within the concept of libertas between the civil rights of the
citizen and the authority of the state a tension that often privileged the maintenance of
senatorial authority within the mixed constitution against the rights of the citizen. He notes
that Libertas is not so much the right to act on ones own initiative as the freedom to
choose an auctor whose auctoritas is freely accepted (Wirszubski, 1960, p. 35). He
writes:
Of the two cardinal notions that Roman libertas comprised, namely the republican constitution and the rights inherent in Roman citizenship, the former, on the showing of the extant
evidence, was by far the more prominent in the presentation of libertas by politicians and
political writers at Rome during the Late Republican period. Except on such occasions as
those on which the Populares upheld the civic right of provocation against magisterial action
supported by a S. C. Ultimum, libertas as a political watchword in the struggle of factions in
Rome meant in the first place a form of government, and not the rights and liberties of the
individual citizen (Wirszubski, 1960, p. 66).

Two points need to be highlighted. First, as a concept prone to interpretation, the meaning
of libertas was contested by rival political groups, notably the optimates and the populares.5
While populares and optimates may not have been well defined political groupings with
clearly articulated ideologies or political programmes,6 each faction fought the other,
claiming to be the champions of libertas (Wirszubski, 1960, p. 31). Second, prominent
defenders of the traditional republican constitution Cicero among them identified with
the optimates, and tended to privilege the security of the constitution, characterised by
senatorial dominance, over the civic rights of Roman citizens.This is not a contradiction;
within the aristocratic strands of Roman republicanism there is no contradiction in
characterising the security of the state as a form of liberty, for the libertas of the cives
presupposed the libertas of the civitas. In particular, optimates and other notables in the
Roman republican tradition upheld the convention of the senatus consultum ultimum: the
declaration by the senate that the republic was in real danger and that therefore unusual
measures for its protection were justified (Wirszubski, 1960, p. 57). Typically, the senatus
consultum ultimum pointed out the quarters from which the State was threatened, and
implied that certain citizens, having adopted a hostile attitude towards the State, should be
treated as hostes (Wirszubski, 1960, p. 57). Under such conditions, the liberties of the
Roman citizen as hostis could be suspended, and unconstitutional powers could be
employed by the senate against these domestic enemies of the republic. According to
Wirszubski (1960, p. 58), the populares were apt to be the victims of such treatment and in
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response tended to emphasise the significance of the civic liberties implied in the notion of
Roman libertas against the prerogatives of senatorial auctoritas. In this sense, Wirszubski
(1960, p. 61) suggests that it is they the populist enemies within the republican tradition,
with their insistence on the inviolability of the provocatio as against magisterial action
supported or instigated by the auctoritas of the Senate who are the champions of Roman
freedom.
Wirszubskis account of Roman libertas, therefore, emphasises the contested nature of
the concept and suggests that the figures most associated with the republican tradition
for example, Cato, Brutus and Cicero identified with the political forces that were
more apt to invoke extraordinary executive powers against the rights of Roman citizens
in the name of preserving the republic. This point is supported by the important work
done by P. A. Brunt (1988), who goes so far as to say that there existed no single
conception of Roman liberty; indeed, in order to comprehend Roman liberty we need
to understand that it meant many things to many different people: some conceptions of
libertas emphasised the negative aspects of Roman liberty while others emphasised its
positive aspects, and some conceptions of libertas emphasised the democratic aspects of
liberty while others emphasised the elitist and aristocratic aspects of liberty.7 This contested narrative raises questions over the value of optimate interpretations of libertas within
the Roman tradition that have become associated with historical figures of note within
the republican canon.

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Libertas and Concordia in Ciceros De Re Rublica

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From the perspective of the history of political thought, the notable figure in the Roman
republican tradition is Cicero, who will be the focus of the remaining analysis. Despite his
significance, there is little systematic analysis of his political thought.8 Part of the reason for
this neglect is due to the fact that, with the exception of fragments surviving in the works
of political theorists like Augustine, Ciceros De Re Publica was lost until 1820. As a result,
it would not play an important role in the development of the republican tradition typified
by the likes of Machiavelli, Harrington, Montesquieu and others within the neo-Roman
republican tradition. De Legibus, however, would have been available to early modern
republicans, and given that it was intended by Cicero to be a sequel to De Re Publica (in the
sense that it articulates the specific laws of the ideal republican constitution) it is curious
that republican scholars have neglected to analyse its place in the republican tradition.
Skinner (2002, p. 12) has referred briefly to the opening preamble of De Legibus to
emphasise Ciceros commitment to the rule of law and the safety of the people (salus populi
suprema lex esto), but he engages in no discussion of how De Legibus was received in the early
modern period. Finally, De Officiis, Ciceros last systematic work, was concerned not with
liberty, but with the virtues of the good man and citizen.
In the absence of any sustained analysis of his systematic political theory, republicans have
relied on his oratory as a source of republican liberty. In terms of understanding how the
Roman ideal of libertas was interpreted and transmitted by republicans writing in the early
modern period, this makes sense. For example, Skinners (2002, p. 11) work on English
republicanism prior to the establishment of the Commonwealth relies largely on Ciceros
Philippics as the source of libertas and its importance to Ciceros republicanism:

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As Ciceros closing remark makes clear, to enjoy de facto freedom of action is not necessarily
to enjoy liberty. If your freedom is held at the discretion of anyone else, such that you continue
to be subject to their will, then you remain a slave. To enjoy liberty, in other words, it is not
sufficient to be free from coercion or the threat of it; it is necessary to be free from the possibility
of being threatened or coerced (emphasis in original).

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For an understanding of the significance of libertas in Roman republican thought, however,

the neglect of Ciceros systematic political thought in favour of his oratory seems problematic, for it raises some concerns regarding interpretation. To what extent do we take
Ciceros legal and political speeches as being indicative of his republican ideal regarding
liberty, the state and the individual? As Neal Wood (1988, p. 62) argues, a problem exists
pertaining to the weight that should be given to the polemics of the orations vis--vis the
more rational argumentation of the philosophic works. In the case of contradiction, the
position of the latter should be given priority.This reliance on the orations to the exclusion
of De Re Publica, De Legibus and De Officiis increases the tendency to give to Ciceros
political thought a greater logical consistency and coherence than they warrant (Wood,
1988, p. 62). For example, in De Lege Agraria, when addressing the popular assembly, Cicero
praises the counsel, the wisdom and the laws of the able and illustrious Gracchi for
strengthening parts of the republic. However, in De Officiis, he writes that the Gracchi,
while alive did not win the approval of good men; and now that they are dead they are
numbered among those who were justly cut down (Cicero, 1991, II. 43). Elsewhere in the
text, he associates the Gracchi with imprudence, profligate spending and civil discord that
weakened the republic. In terms of the republican tradition, there seems to be a potential
danger here of expecting to find in Ciceros oratory a conception of libertas that is said to
be representative of the conceptions of liberty that are thought to be constitutive of the
neo-Roman tradition being articulated in the early modern period.The point here is not
to suggest that Cicero could not have meant to reference a form of liberty that is
understood to be a form of non-domination, but rather that, considered in the context of
his systematic political treatises, such a notion of liberty was not the cornerstone of his
republicanism.
Given their republican credentials, De Re Publica and De Legibus will be the focus of the
following analysis. Upon close examination, it becomes apparent that, rather than libertas as
a form of non-domination acting as the operative conceptual ideal in Ciceros republicanism, concordia, along with equity as a form of proportionate equality that depends upon the
recognition of substantive differences of status and power, and the defence of the state
against internal dissent what Cicero referred to as cum dignitate otium serve as the
foundation of his republican political thought. Liberty, for Cicero, must coexist with
recognition of the dignitas of the best men and the auctoritas of the senate.9 Dignitas refers
to the esteem a worthy personality commands, and presupposes a certain degree of
material wealth (Wirszubski, 1960, pp. 123). Thus, while dignitas cannot be reduced to
landownership, only those of high social standing capable of attaining the highest offices
of the state were capable of being recognised as men of dignitas. Given the material
foundation of statesmanship, therefore, the great men were of the landowning class (but not
all men of the landowning class were great men). As such, liberty is better understood as
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a form of ordered liberty characteristic of a conservative and aristocratic world view.

Liberty isolated from dignitas and auctoritas is licence or anarchy.This form of ordered liberty
is offered as an alternative to the conception of liberty as a form of non-domination or
masterlessness that Cicero attributes to the democracies of ancient Greece and the
populism of reformers such as Tiberius and Gaius Gracchus.
Far from representing an elaborate argument in favour of liberty as a form of nondomination, Ciceros treatment of liberty is in fact quite ambiguous in De Re Publica. On
the one hand, he does seem to define liberty as a condition that exists in opposition to
slavery. For example, in speaking of Cyrus the Great, he states that while Cyrus may have
been among the wisest and most just of kings, such a form of state is not a desirable form
of government because in it the property of the people (populi res) is administered at the
nod and caprice of one man (Cicero, 1928a, I. 44). Unfettered kingship verges on personal
rule which poses the problem of degenerating into the rule of an arbitrary individual will
(dominates), as opposed to rule in the interest of the common weal. On the other hand,
Cicero attributes a condition of liberty to Greek democracies as opposed to what he
favourably terms a free state. It is in free states that the res publica typically translated into
the peoples business, the peoples property or the peoples affairs and often used by
Cicero to refer to the state is administered in accordance with the common weal.10
Cicero therefore distinguishes the liberty of a free state (what contemporary republicans
refer to as a republic) from the liberty of democracy.11 In presenting the democratic
argument, Cicero states that liberty has no dwelling-place in any State except that in which
the peoples power is the greatest.This is not what Cicero believes, but what he argues the
proponents of democracy believe. By definition, this form of liberty is based on the
principle of an equality of rights for all citizens, for the proponents of democracy claim that
anything less does not deserve the name of liberty.Free states such as the Roman republic
are not characterised as democratic because, while citizens may vote, elect commanders
and officials, are canvassed for their votes, and have bills proposed to them, they have no
share in the governing power, in the deliberative function, or in the courts, over which
selected judges preside, for those privileges are granted on the basis of birth or wealth. In
a democracy such as Rhodes or Athens, however,there is not one of the citizens who [may
not hold the offices of State and take an active part in the government] (Cicero, 1928a, I.
47). Liberty is therefore said to be most prevalent in democracies and precludes large
disparities of wealth among the citizenry. Proponents of democracy say that ostentatious
wealth or the allowance thereof will result in the cowardly and weak giving way and
bowing down to the pride of wealth, which paves the way for the rule of one or the few
(Cicero, 1928a, I. 48). But if the people retain their rights and become masters of the laws
and of the courts, and retain control over matters of war, peace and international agreements, as well as of every citizens life and property, no form of government would be
superior in freedom and happiness.12 Only such a popular government a democracy in
line with Athens could be considered a commonwealth, the property of the people.
Having rehearsed the democratic conception of liberty as a form of popular control over
the deliberative functions of the state, Cicero equates this notion of liberty with licentia or
licence.When speaking in his own voice rather than rehearsing the democratic argument
he relies on Platos caricature of the liberty found in democracies:
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It necessarily follows in such a State that liberty prevails everywhere, to such an extent that not
only are homes one and all without a master, but the vice of anarchy extends even to the
domestic animals, until finally the father fears his son, the son flouts his father, all sense of shame
disappears, and all is so absolutely free that there is no distinction between citizen and alien;
the schoolmaster fears and flatters his pupils, and pupils despise their masters; youths take on
the gravity of age, and old men stoop to the games of youth, for fear they may be disliked by
their juniors and seem to them too serious. Under such conditions even the slaves come to
behave with unseemly freedom, wives have the same rights as their husbands, and in the
abundance of liberty even the dogs, the horses, and the asses are so free in their running about
that men must make way for them in the streets (Cicero, 1928a, I. 67; compare Plato, 1997,
562c563e).

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Such is the condition of liberty licentia in democracies that all members of the city state are
utterly without a master of any kind (Cicero, 1928a, I. 67). Such excess liberty, however, has
the paradoxical and undesirable consequence of creating the conditions for tyranny.
What is interesting about this passage is the extent to which all embellishments aside
it casts democratic liberty as a condition that accords a certain degree of freedom to
slaves, women and children. Democracy seems to limit the paternalistic power of the
father over the son; the patriarchal power of the husband over the wife; and even seems
to limit the arbitrary powers of dominium exercised by the dominus or despotes over the
slave. It is worth remembering that Aristotle considered these forms of association to be
non-political in the sense that they pertained to relations of power exercised between
individuals of unequal status (Aristotle, 1984a, I. 1252a241253a29). And given that a
political relationship is characterised by the fact of ruling and being ruled in turn, these
forms of non-political power are necessarily arbitrary.The slave is dependent upon the will
of the master; the wife is dependent upon the will of the husband; and the child is
dependent upon the will of the father. In this sense, democratic liberty is characterised by
a form of independence from arbitrary power that is enjoyed even by those not considered to be citizens of the state.13
It may be said that Ciceros characterisation of libertas as a licentious form of nondomination is meant to apply to democracies, and that a more moderate form of libertas is
the primary characteristic of a republican mixed constitution that Cicero is proposing in
the text. Libertas, in other words, is still a form of non-domination that is intrinsically
identified with the Roman republic, albeit a form of liberty that is different from that
enjoyed by the Greeks.Yet when we look at his analysis of the historical development of the
Roman republic and his defence of its principles, we see that concordia or concentus, not
libertas, is the predominant characteristic of his republicanism.14 A state, or civitas, is:

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made harmonious by agreement among dissimilar elements, brought about by a fair and
reasonable blending together of the upper, middle, and lower classes, just as if they were musical
tones. What the musicians call harmony in song is concord in a State [civitate concordia], the
strongest and best bond of permanent union in any commonwealth; and such concord can
never be brought about without the aid of justice (Cicero, 1928a, II. 69).

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The virtues of the mixed constitution reside in the promotion of stability and in a high
degree a sort of equality, which is a thing free men can hardly do without for any

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considerable length of time. This is because there is no reason for a change when every
citizen is firmly established in his own station (Cicero, 1928a, II. 69).15
In this sense, concordia or concentus represents the absence of redistributive measures that
Cicero claims threatens existing social hierarchies and contributes to the instability of the
republic. In Pro Sestio, for example, Cicero (2006, p. 103) approves of noble opposition to
the agrarian law of Tiberius Gracchus on the basis that they saw it as a way of stirring up
discord and judged that the commonwealth would be stripped of its defenders if the rich
were dislodged from their long-time holdings; the grain dole of Gaius Gracchus is similarly
attacked on the grounds that it would seduce the plebs from the ways of hard work and
become slothful, and they [the nobles] saw that the treasury would be drained dry. In De
Officiis, Cicero (1991, II. 73), in another critique of Gaius corn dole, argues that the first
consideration of any statesman is to see that everyone holds on to what is his, and that
private men are never deprived of their goods by public acts. Nothing, for Cicero, could
be worse for the republic than an equalization of goods due to the fact that political
communities and citizenships were constituted especially so that men could hold on to
what was theirs (Cicero, 1991, II. 73). Consequently, those who pursue such populist
measures of redistribution sap the foundations of the constitution. As such, concord ...
cannot exist when money is taken from some and bestowed upon others (Cicero, 1991, II.
78). It is instructive that the consul Lucius Opimius, one of the eminent men whose exile
at the hands of the Roman people Cicero laments at the beginning of De Re Publica,
celebrated his defeat of the supporters of Gaius Marius by erecting a temple to Concordia
the goddess of concord in the Aventine (Ungern-Sternberg, 2004, p. 94).
Equity, in contrast and opposition to equality (aequabilitas), represents the fair distribution of property, goods and offices on the basis of rank or dignitas.16 In this sense, equity
resembles Aristotles notion of proportionate equality, in which giving each their due is
oriented to the distribution of goods and offices in a manner that is proportionate to a
citizens contribution to the functioning of the polis. In the Politics, Aristotle (1984a, III.
1280a71280a21) writes:
Thus it is thought that justice is equality; and so it is, but not for all persons, only for those that
are equal. Inequality also is thought to be just; and so it is, but not for all, only for the unequal.
... If persons originally come together and form an association for the sake of property, then
they share in the state in proportion to their ownership of property.17

Those citizens who, by virtue of their noble birth, their possession of the requisite amount
of external goods (i.e. property) and their virtuous living or habituation, contribute more
to the functioning of the polis the parts will possess greater political rights than those
who do not and cannot contribute as much to the functioning of the polis the
conditions. From Aristotles perspective, this is meant to grant a certain distribution of
political rights while maintaining the power and prestige of the aristocracy. Cicero has
something similar in mind. While legal rights in the form of access to the law are
distributed on the basis of equality, property and political rights are distributed on the basis
of equity. All freemen have access to the courts and therefore to the Roman Law, but only
citizens possess political rights. But even within the rubric of citizenship, those citizens of
dignitas will enjoy greater voting rights and exclusive rights to run for office. Cicero (1928a,
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II. 39) attributes to Servius Tullius the wise innovation of ensuring that the greatest number
of votes belonged, not to the common people, but to the rich, and put into effect the principle
which ought always to be adhered to in the commonwealth, that the greatest number should
not have the greatest power.18 This fair distribution of honours and offices is the partnership
that forms the basis of the res publica (Asmis, 2004, pp. 5846). Concord and equity are
mutually supportive of each other, and are equally necessary for the maintenance of the
aristocratic order: the balance of rights, duties, and functions, so that the magistrates have
enough power, the counsels of the eminent citizens enough influence, and the people enough
liberty (Cicero, 1928a, II. 58). Elizabeth Asmis (2005) argues that the elements of the Roman
constitution that Cicero believes make it the best type of constitution are the principles of
cooperation based on just recognition of the rights of others and rule by wise leaders. Liberty
as non-domination must be understood and exercised within this context of constitutional
balance. In contrast,popular government, of the kind representative of the Gracchis politics
(not to be confused with Ciceros characterisation of popular government as a Roman
alternative to democracy as outlined in De Re Publica),19 results in the establishment of an
equality (aequabilitas) that is itself inequitable (iniqua), regardless of the justice or moderation
with which popular government is ruled, because such popular government allows no
distinctions in rank [gradus dignitatis] (Cicero, 1928a, I. 43).

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Constitutionalism and Natural Law in Ciceros De Legibus

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Having been presented with a hierarchical and authoritarian20 conception of liberty in De

Re Publica, we are left with De Legibus to fill in the blanks regarding the significance of
liberty as non-domination. However, the focal point of De Legibus is not libertas, but the
metaphysical underpinnings of the civil laws of the ideal republic: Ciceros notions of justice
and natural law. This is Cicero at his most Platonic, for while civic laws are relative to a
particular people incorporating both the civil law produced by legislative bodies and
customs that are the product of historical practice natural law is universal.The essence of
the matter is that civil laws and customs that are not in conformity with natural law are not
considered to be laws at all (just as pure constitutions are not considered to be states as
stated in De Re Publica). What is striking about De Legibus is the extent to which Cicero
recognises the sovereign power of the popular assemblies, only to inhibit significantly their
lawmaking power by embedding the fundamental laws and principles of the Roman
republican constitution within an absolutist and unchanging conception of natural law:

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What of the many deadly, the many pestilential statutes which nations put in force? These no
more deserve to be called laws than the rules of a band of robbers might pass in their assembly.
For if ignorant and unskillful men have prescribed deadly poisons instead of healing drugs,
these cannot possibly be called physicians prescriptions; neither in a nation can a statute of any
sort be called a law, even though the nation, in spite of its being a ruinous regulation, has
accepted it (Cicero, 1928b, II. 13).

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According to Cicero (1928b, II. 13),Law is the distinction between things just and unjust,
made in agreement with that primal and most ancient of all things, Nature; and in
conformity to Natures standard are framed those human laws which inflict punishment
upon the wicked but defend and protect the good.21

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Ciceros task is not merely to defend the laws and magistracies of the Roman republic
as it existed in the so-called golden age between the fall of the Decemvirs and the rise of
the aristocratic factionalism that pitted optimates against populares, but to root them in an
unchanging foundation of natural law as a means of conserving a particular political
arrangement that is the constitutional carapace of the aristocratic rule of the best men.22
In this sense, it entails a concept of a pre-political moral order that supplies the rules
incorporated in Ciceros idea of constitutional government; natural law informs the higher
order constitutional norms and the limits of popular legislation and the positive legal
system (Straumann, 2011, p. 290).23 While this is meant to extinguish any arbitrary power
emerging out of the popular assemblies, the ambiguous character of natural law as defined
by Cicero in particular, its normative status pertaining to the good and its relationship to
the defence of private property opens up the possibility of a kind of arbitrary aristocratic
power in its own right: in so far as the constitution is unwritten, and the metaphysics of
natural law trump the civil law emanating from the popular assemblies, constitutionalism
becomes a vehicle for the preservation of aristocratic power against the arbitrariness of
popular sovereignty.
These conceptual innovations regarding the character of republican constitutionalism
were intended as a powerful defence against the use of the tribunate by populares like the
Gracchi to enact significant social reforms that would alter the balance of power in Roman
society and affect the traditional composition of republican institutions. This is significant
because Cicero (1928b, III. 24) defends the institution of the tribunate from Quintus, who
proposes its abolition, on the grounds that the power of the Roman people is sometimes
milder in practice because there is a leader to control it than if there were none.When the
senate agreed to the creation of the tribunes, argues Cicero (1928b, III. 24),conflict ceased,
rebellion was at an end, and a measure of compromise was discovered which made the more
humble believe that they were accorded equality with the nobility; and such a compromise
was the only salvation of the State. In a revealing passage, Cicero states that if the tribunes
were not created as a response to plebeian discontent, either monarchy had to be
re-established,or else that real liberty, not a pretence of it, had to be given to the common
people. Fortunately, the tribunate served the purpose of establishing an ordered liberty, for
this liberty has been granted in such a manner that the people were induced by many
excellent provisions to yield to the authority of the nobles (Cicero, 1928b, III. 25).
Having supported Pompeys reintroduction of the tribunate, and being acutely aware of
the role that the tribunes played in weakening the power of the optimates, Cicero then needs
to ensure that these offices of the people are not used in ways that diminish aristocratic
power. His conception of natural law serves this purpose. For example, in Book II, Cicero
makes reference to the role of the augur in advising the repeal of wicked and unjust
statutes that contradict the principles of natural law. The examples are the Titian Law of
Sextus Titius (99 bce) and the Livian laws of Marcus Livius Drusus (91 bce). Both of these
examples represented agrarian and grain laws that sought to redistribute land away from the
aristocracy and alleviate the plight of the poor by fixing the cost of grain characteristic
of the populares. Both laws were annulled by the senate on the grounds that, at least in
Ciceros (1928b, II. 134) view, they were not true laws but rather resembled the rules a
band of robbers might pass in their assembly. In this sense, Cicero is effectively replacing
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any distributive aspects of political justice with rectificatory ones, making the justice and
constitutionality of government dependent on its respect for existing, ultimately prepolitical property distribution and constitutionally restraining its power to redistribute
(Straumann, 2011, p. 291).
Other measures aside from Ciceros constitutionalism are introduced as a means of
securing the authority of the aristocracy. For example, the repeal of the secret ballot is one
measure that is addressed at length in De Legibus. The secret ballot was implemented
through a series of popular reforms introduced by populist tribunes in the latter half of the
second century bce.The first stage pertained to elections for magistrates and was introduced
by Aulus Gabinius in 139; the second measure, introduced by Lucius Cassius in 137 granted
the secret ballot for elections during popular trials; the third measure, passed by Gaius
Papirius Carbo in 131, introduced the secret ballot into the popular assemblies that voted
on the legislation presented by magistrates; and finally, a secret ballot for treason trials was
introduced by Gaius Coelius in 107 bce. Such reforms were considered a significant blow
to the optimates.As Quintus remarks in De Legibus,everyone knows that laws which provide
a secret ballot have deprived the aristocracy of all its influence (Cicero, 1928b, III. 34). As
such, the repeal of the secret ballot poses a threat to the independence of lower-class voters.
Although Cicero (1928b, III. 33) does not advocate the total repeal of the secret ballot, he
undermines its strength and sanctity by stipulating that ballots shall not be concealed from
citizens of high rank, and shall be free to the common people (emphasis in original). This opens
the door to a kind of dependency that republicans in the early modern period used as a
means to exclude people from attaining the franchise. During the debates at Putney Church
in England in 1647, for example, Henry Ireton urged a restriction of the franchise in order
to exclude servants and alms-takers on the grounds that they existed in a condition of
dependence on their masters. As Skinner (2006, p. 162) points out, Ireton explicitly insists
that the franchise should be confined to free men, and he states that by free men he
means those who are not given up to the wills of others and are thus freed from
dependence . Maximilian Petty, concurring with Ireton, accepts this exclusion, arguing
that it is due to the fact that apprentices and servants depend upon the will of other men
and are thereby included in their masters (Petty, in Woodhouse, 1974, p. 83). By repealing
the secret ballot, Cicero (1928b, III. 38) is granting freedom to the people in such a way as
to ensure that the aristocracy shall have great influence and the opportunity to use it. In
this way, formal freedom is allowed to reside alongside the informal influence, power and
authority of the aristocracy in a way that, while not resembling a form of slavery or
domination (in the literal Latin sense of being the property of another), certainly undermines the notion of liberty as a form of independence.

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Conclusion

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In relation to the social conflicts of the late republican period, Cicero sided with the
optimates against the populares attempts to redress the significant social and economic
inequalities of Rome that diluted the libertas of the lower classes the lower-order
plebeians, the proletariat and the peasantry. In his oratory, in his political theory and in his
actions as consul, he consistently branded populist reformers as security threats to the
republic.24 Such a characterisation is not simple rhetoric. As Ciceros handling of the

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Catiline conspiracy demonstrates, and as Wirszubskis (1960) study confirms, defenders of

republican libertas like him were content to invoke the senatus consultum ultimum to override
the rule of law in order to eliminate populist threats to senatorial auctoritas in the republican
constitution. When speaking of Roman libertas, we must take into account its contested
meaning by situating it within the socio-political conflicts of the period. As Brunt (1988,
p. 327) writes, there is no one form of Roman liberty; and when it comes to the work of
republican writers like Cicero, we must reject the assumption that he speaks for the
Roman .
One of the problems of the republican interpretation of liberty is that, despite its
emphasis on the significance of slavery in its definition of liberty as non-domination, it
tends to conceptualise liberty at a high level of abstraction, neglecting to take into account
its contested meaning.The republican narrative remains caught within a framework that pits
republican liberty as non-domination against a negative liberty defined as noninterference. Absent from this narrative is a recognition of the extent to which liberty as a
form of non-domination itself is prone to contestation by actors who would identify
themselves as republicans. This article has argued that any characterisation of Cicero as a
staunch proponent of constitutionalism and the rule of law as aspects of a conception of
liberty as non-domination needs to take into account the fact that his notion of libertas was
subsumed to an overriding concern with concordia or concentus that privileged the maintenance of senatorial auctoritas; and his constitutionalism rested upon the foundation of natural
law that represented little more than an ideological bulwark against popular social and
political change. In general, his deference to the rule of law was surpassed only by his
deference to senatorial auctoritas and his opposition to social reform.25 In a sense, Ciceros
lengthy discussion of the purpose of his law against the secret ballot encapsulates the
grander political project of the Republic and the Laws: our law grants the appearance of
liberty, preserves the influence of the aristocracy, and removes the causes of dispute between
the classes (Cicero, 1928b, III. 39).

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(Accepted: 1 October 2012)

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About the Author

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Geoff Kennedy is a Lecturer in Politics at the School of Government and International Affairs at Durham University.
His current research interests are in republican political thought, Marxism, neo-liberalism and seventeenth-century
English political thought. Geoff Kennedy, School of Government and International Affairs, Durham University, Al
Qasimi Building, Elvet Hill Road, Durham, County Durham DH1 3TU, UK; email: geoff.kennedy@durham.ac.uk

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I would like to thank Ellen Meiksins Wood and the three anonymous reviewers for their constructive feedback on various drafts of
this article.
1 For a different view of the tribunate, see Maddox, 2002; Wirszubski, 1960.
2 Whereas Pettit rejects Berlins dichotomy, Skinner (1984) initially argues that classical republicans adhered to a negative conception
of liberty.
3 Pettit is more explicit on this matter than is Skinner. It is also the case that most republicans throughout the early modern period
accepted the anti-democratic narrative of Athens. See Roberts, 1997.
4 Skinner (1998) refers to Wirszubski nine times, but of these nine references, none of them goes beyond the introductory chapter.
Pettit (1997) confines his references to the first chapter with the exception of one reference to page 159.
5 Optimates refers to the best men who identified with and sought to preserve the dominance of senatorial authority within the
republican constitution. They are often characterised as conservatives in this manner given the extent to which they espoused
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hierarchy, order and the preservation of property rights which buttressed vast disparities of wealth and power that divided the large
landowning class (of which they were members) from everyone else in Roman society. In contrast, the populares refers to
aristocratic reformers who challenged the authority of the senate in their attempts to alleviate the social problems that they
believed to be responsible for the deterioration of the republic.
See Brunt, 1971; Taylor, 1962. For more recent overviews, see Robb, 2010; Ungern-Sternberg, 2004; Wiseman, 1994.
Brunt (1988) challenges the simple dichotomy between Roman and Greek conceptions of liberty by pointing out that in both
Rome and Greece notions of freedom spanned a spectrum that encompassed both positive and negative conceptions of liberty;
and he rejects Constants unhelpful distinction between ancient and modern forms of liberty. Interestingly, it becomes clear
through the course of the essay that most classicists contra the tendency among political theorists consider Greek conceptions
of freedom to privilege a negative conception of liberty.
Viroli (2002) mentions Cicero five times, and one of these instances from Pro Cluentio is used to elaborate the Roman ideal
of liberty.The other references to Cicero demonstrate that liberalisms concern for the protection of private property stems from
Ciceros De Officiis, and that Roman republicanism is compatible with civic nationalism.A remaining reference to Cicero is in fact
a reference to the work of Renaissance writers who shared Ciceros belief in the common good. Maynor (2003) contains only
five references to Cicero but no analysis of Ciceros work (or that of any other Roman writer).
For a discussion on the relationship between dignitas and auctoritas, see Wood, 1988, pp. 14951.
Both Wood (1988, pp. 1238) and Asmis (2004) provide insightful discussions of Ciceros definition of res publica and civitas as
forms of state. Both argue that for Cicero the term civitas is closer in definition to the Greek politeia, as opposed to the more
ambiguous notion of a polis which may simply connote a form of urban dwelling as opposed to a form of political organisation.
Wood emphasises the institutional and constitutional aspect of civitas as against the normative and emotive term of res publica.
Asmis emphasises the abstract and general nature of civitas as against the patriotic meaning of res publica. Both terms refer to state
in varying degrees of abstraction. Schofield (1995) discusses the relationship between the res publica and the res populi, which
illuminates the reasoning behind Ciceros dismissal of democracy as a corrupt form of state.
The term used by Cicero is a state (civitatibus) where everyone is ostensibly free (Cicero, 1928a, I. 47).
This last point is common among the arguments of anti-democrats. For an alternative depiction of the status of property and
individual liberty under the Greek democracies, see Edge, 2009; Wood, 1989.
This is not to say they had rights of democratic participation.
Asmis (2005) argues that Ciceros emphasis on concord, self-restraint and justice in the Roman constitution is framed as a response
to Polybius.
Equality here refers to the universal distribution of juridical rights (not political or economic rights) among the citizenry.This
high degree of equality is, in comparison to Athenian democracy, the bare minimum of any condition of freedom. This
interpretation of Ciceros usage of equality rather than equity is supported by Asmis (2005, p. 403).
Wirszubski (1960, p. 36) defines dignitas as a form of personal worthiness that attaches to a man permanently, and devolves upon
his descendants.
See Aristotle, 1984b,V. 1131a221131b14. For an account of the aristocratic nature of Aristotles conception of proportionate
equality, and its opposition to the democratic conception of numerical equality, see Wood and Wood, 1978.
This is not to say that wealth is the sole or even primary basis for the distribution of offices and honours.Virtue, and adherence
to the gentlemanly ideal, are also necessary. See Wood, 1988, pp. 1004.
Asmis (2004) demonstrates Ciceros use of popularis and populari potestas to refer to the democratic rule of the people (as opposed
to kingship or aristocracy) and his use of res populi to refer to the property of the people that forms the popular basis of the Roman
state.
Authoritarian in the sense that liberty must recognise the auctoritas of the senate and the dignitas of the best men as opposed to
the masterlessness of democratic liberty.
For a discussion of Ciceros conception of natural law, see Asmis, 2008.
This interpretation finds support in Wood (1988) and Lintott (1999). Some scholars have noted that Cicero innovated on the
existing Roman constitution through the establishment of the rector civitatis or moderator rei publicae.Articulated in De Republica but
absent in De Legibus the rector or moderator is said to refer to a charismatic leader whose role cannot be reduced to any
constitutionally defined office. For more on this, see Asmis, 2005; Marquez, 2011.
Against Asmis (2005), Straumann (2011) argues that Ciceros legal code articulated in De Legibus represents a codification of natural
law.
The exception is his moderate praise for the Gracchi in his speech against the agrarian laws made to the popular assembly (De
Lege Agraria Oratio Secunda in Cicero, 1930). His most polemical treatment of the populares or men of the people is found in Pro
Sestius (Cicero, 2006), where he brands the populares as threats to the republic.The speech argues that the populares are not popular
at all; rather, the best sort of men such as Cicero, who side with the traditional republican constitution in particular, the primary
role granted to the senate within that constitution are the real popular men of the republic.
Any political change Cicero articulated in the Republic and the Laws was, according to Lintott (1999, pp. 21432), an anachronistic
reassertion of optimate principles designed to reinforce aristocratic power.

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Highlight a word or sentence.

Highlight a word or sentence.

Click on the Replace (Ins) icon in the Annotations

section.

Click on the Strikethrough (Del) icon in the

Annotations section.

Type the replacement text into the blue box that

appears.

3. Add note to text Tool for highlighting a section

to be changed to bold or italic.

4. Add sticky note Tool for making notes at

specific points in the text.

Highlights text in yellow and opens up a text

box where comments can be entered.
How to use it

Marks a point in the proof where a comment

needs to be highlighted.
How to use it

Highlight the relevant section of text.

Click on the Add note to text icon in the

Annotations section.

Click on the Add sticky note icon in the

Annotations section.

Click at the point in the proof where the comment

should be inserted.

Type the comment into the yellow box that

appears.

Type instruction on what should be changed

regarding the text into the yellow box that
appears.

USING e-ANNOTATION TOOLS FOR ELECTRONIC PROOF CORRECTION

5. Attach File Tool for inserting large amounts of

text or replacement figures.

6. Add stamp Tool for approving a proof if no

corrections are required.

Inserts an icon linking to the attached file in the

appropriate pace in the text.
How to use it

Inserts a selected stamp onto an appropriate

place in the proof.
How to use it

Click on the Attach File icon in the Annotations

section.

Click on the Add stamp icon in the Annotations

section.

Click on the proof to where youd like the attached

file to be linked.

Select the file to be attached from your computer

or network.

Select the stamp you want to use. (The Approved

stamp is usually available directly in the menu that
appears).

Click on the proof where youd like the stamp to

appear. (Where a proof is to be approved as it is,
this would normally be on the first page).

Select the colour and type of icon that will appear

in the proof. Click OK.

7. Drawing Markups Tools for drawing shapes, lines and freeform

annotations on proofs and commenting on these marks.
Allows shapes, lines and freeform annotations to be drawn on proofs and for
comment to be made on these marks..

How to use it

Click on one of the shapes in the Drawing

Markups section.

Click on the proof at the relevant point and

draw the selected shape with the cursor.

To add a comment to the drawn shape,

move the cursor over the shape until an
arrowhead appears.

Double click on the shape and type any

text in the red box that appears.

For further information on how to annotate proofs, click on the Help menu to reveal a list of further options: