Liberty, Prudence, Imperfection, and Law

Discourses on Livy: I.34-36

Cincinnatus leaves the plow by Juan Antonio Ribera, 1806

Cincinnatus leaves the plow by Juan Antonio Ribera, 1806

I.34–36

The Roman Republic had several fascinating political institutions, including the occasional offices of “dictator” and “decemvir.” In times of military crisis, a dictator would be appointed by the consuls (executive officers) for up to six months with virtually absolute power. He was allowed to do whatever he deemed necessary to save the nation. In two times of legal crisis, the Romans appointed decemvirs (“ten men”) to refine their law codes.

Our instinct, as in Machiavelli’s time, is to assume that the dictatorship must of necessity have been corrosive to the liberties of a republic. When we combine this with the historical fact that Julius Caesar was appointed “dictator for life” during the death throes of the Roman Republic, it would appear that this office can only be harmful in the long run. On the other hand, the decemvirate was created to craft laws and eventually produced the famous “Twelve Tables,” making them a very loose equivalent of figures like Blackstone or Coke in the common law tradition. That is, the decemvirs appear to be the wise lawgivers that Machiavelli was so concerned with.

And yet, Machiavelli points out that this interpretation is wrong. In fact, when we read Livy we see that it was the decemvirate which had the habit of becoming actual dictators, since their ability to shape the law as they liked allowed them to undermine and even eliminate the other offices of state:

One should note that when it is said that an authority given by free votes never hurts any republic, one presupposes that a people is never led to give it except in the proper circumstances and for the proper times. (I.35.1)

In improper circumstances and times, the result is the destruction of public freedom. Machiavelli will return to his discussion of the decemvirate in I.40.

On the other hand, the dictatorship in a republic like that of Rome had an essential function that gave the Romans a flexibility not often seen in free states. The problem is not the existence or powers of an office called “dictator,” that hardly matters: “If the dictatorial name had been lacking in Rome, they would have taken another; for it is forces that easily acquire names, not names forces” (I.34.1). That is, if you have the kind of state that is going to put an absolute ruler in place and the kind of person who is going to try to be an absolute ruler, simply saying “no dictators!” will do nothing. Absolutism will be established regardless of the title that does or does not attend it.

And yet, the Roman dictatorship did not lead to absolutism—this despite the fact that the office carried with it a phenomenal political, civil, and military power. Functionally, the dictator could do anything except undo the established law of the state. That is, he could raise and command armies, levy taxes, do anything that any other magistrate could do for his time in office, but he could not eliminate those other offices. Consuls and praetors and senators went on being consuls and praetors and senators for centuries without being usurped by the occasional office of dictator. Machiavelli gives three reasons for this regularly responsible use of so powerful an office:

1) The office itself was of limited duration—usually only six months, with the possibility for extension if the consuls believed it necessary.
2) The dictator was only authorized to respond to a single crisis. Within that charge, he had absolute power, but not beyond—again he could do anything any other official could do, but he could not eliminate other officials. If you care about the way the Romans would have said this, the dictator has absolute imperium (power) with respect to the crisis at hand, but only a limited auctoritas (authority) in the state as a whole.
3) The Roman people were not (yet) corrupted and would never have allowed a dictator to go beyond his established responsibilities.

Hopefully, this makes Machiavelli’s point clear. The office of “dictator” was a very limited position that could not functionally upset the established order of the republic—at least it couldn’t upset it any more than the crisis it had been created to solve. The decemvirate, on the other hand, was created for the express purpose of tinkering with the foundation of the established order. And given human nature, it should be no surprise that the decemvirs did exactly what any human would have done given that opportunity: empowered themselves at the expense of the republic.


As much as I love Machiavelli’s discussion of Roman political institutions, I’ll not indulge myself in further historical discussion. Instead, Machiavelli’s point about why the office of Dictator was of such great benefit to the Republic needs to be highlighted: “Because the customary orders in republics have a slow motion… their remedies are very dangerous when they have to remedy a thing that time does not wait for” (I.34.3). That is, congresses and parliaments and assemblies and councils take time. But when the barbarians are thundering down the road intent on sacking the city, time is one luxury the state does not have. The republic needs some established institution or office or, to use Machiavelli’s term, “mode” for just such an occasion: “For when a like mode is lacking in a republic, it is necessary either that it be ruined by observing the orders or that it break them so as not to be ruined” (I.34.3).

So, when there is no such institution in place, either the barbarians will manage to destroy the city and the republic will be lost, or someone will cheat, violate the established legal order, and save the city. The latter is also a tragedy:

In a republic, one would not wish anything ever to happen that has to be governed with extraordinary modes. For although the extraordinary mode may do good then, nonetheless the example does ill; for if one sets up a habit of breaking the orders for the sake of good, then later, under that coloring, they are broken for ill. (I.34.3)

As long as the dictatorship—or whatever we’re going to call our “break glass in case of emergency” institution—is established within the law of the state, the state will have the flexibility it needs to face a true crisis. Without such an institution, either the crisis will destroy the state or the law of the state will have to be ignored and consequently undermined.

What institution does the American republic have that fits this need? I would suggest that to some extent this is probably a gap in our Constitution—and that’s assuming we agree with Machiavelli that in times of crisis speed may be necessary. Historically, I think it’s pretty clear that the office of the president has been used for this purpose. Which is all well and good, and probably even somewhat in line with the intent of the Founders if not with their express words, other than the fact that the extraordinary powers exercised by the president during these times of crisis tend to become powers we all assume are his during the normal course of events. I don’t know if there is a way around this issue, and hours upon hours spent discussing it in class have suggested no realistic solutions…


Finally, Machiavelli discusses the relationship between honor and civic virtue. In Rome, once an official was done with his time in office he returned to the ranks of the citizen body. He could even be called upon to serve in the military. We should note that Machiavelli is playing just a tiny bit fast and loose with Roman politics here. Once one had served in the highest offices in the state—consul, praetor, etc,—after the term of service was over the former official then took a seat in the Senate. So it’s not exactly true that they returned to regular citizen life and nothing more. Which doesn’t necessarily negate Machiavelli’s point: even senators could be called into military service if they were not over the age limit. The broader argument is, however, the one that matters:

For a republic should have more hope and should trust more in a citizen who descends from a great rank to govern in a lesser one than in one who rises from a lesser to govern in a greater. For one cannot reasonably believe in the latter unless one sees men around him who are of so much reverence or so much virtue that his newness can be moderated with their counsel and authority. (I.36.1)

How do we know who the great statesmen really are? They’re not the ones who become president; they’re the ones who become president and then are content to return and serve in lesser functions. And that is something on which I can unreservedly agree with Machiavelli.

 

Coyle Neal is Assistant Professor of Political Science at Southwest Baptist University in Bolivar, Missouri.

3 Responses to “Discourses on Livy: I.34-36”

  1. gabe

    For the decimvir we now have the Supreme Nine – actually Five (would that be quintovir?). Being, as moderns, we are somewhat more obsessed with efficiency, I find that having a “quintovir is DOUBLY efficient in undermining the Law and the Republic – don’t you?

    It is amazing just how prescient Ole Nicci was – Consider the long term effects of the policies put in place during WWI and the increase in the size and purview of the State. So much of that is still with us today. The same is true of WWII – witness the Admin Procedures Act as well as government meddling in the economy (distribution, pricing, etc), rent control (still with NYC) and a host of other interventions all due, no doubt to the necessity of the war effort. Although the best one was (up until recently) the tax on telephones to support the Spanish American War.

    As for returning to a lesser office, I would be content with ex-presidents simply “shutting up” – who really wants to hear what Jimmy Carter and William Jefferson Clinton have to say; and does it not appear unseemly for a former President to criticize so readily the incumbent. Gee, any one else notice that it always seems to be Democrats that think people wish to hear their failed policy prescriptions on an ongoing basis.

    My god, Nicci would make a killing on K Street, wouldn’t he?

    Reply
  2. Coyle Neal

    Heh, I wouldn’t be surprised to learn that Nicci was a major inspiration behind K Street in the first place. Though from what I’m told, K Street today isn’t what it was a decade ago…

    I’ve gone back and forth on whether the Supreme Court should be mentioned in this context. The problem is, the more I study the institution the more respect I have for it (the reverse is true of Congress). So take any one of the justices I disagree with, say Stephen Breyer for example. Whatever I think of his political views/judicial opinions, he’s still an intelligent, competent, and thoughtful individual the likes of which doesn’t exist anywhere in Congress or in the upper tiers of the Executive Branch. And I’d say the same about any of the justices (though I admittedly know much less about Sotomayor and Kagan).

    So, yeah, mixed thoughts there, I guess.

    Great comments, as always gabe!

    Reply
    • gabe

      Yep!!!

      I also do not have any great (or even minimal) respect for the Legislature as is currently populated. There was a time (Oh memories of Gordon Lightfoot here) in this fair land when there were actually “statesmen” in Congress – and men of considerable intellect!

      It is only because I place so much value on a proper functioning Legislative Branch, that I actually have come to distrust the role of the Court. Perhaps, this is a refusal to entirely give up on the Theory of American Government as opposed to accepting the current malaise into which it has fallen (taken itself).
      We have substituted the concept of *representative* legilsators elected by the people to make LAW for nine skilled in archaic pursuits (intelligent, yes) permitted to “refine / redefine” LAW – this I find troubling as both a theoretical and practical matter.
      I do not know how Nicci would come down on this – although I suspect that in some proto-Burkean way, he would perhaps resort to the “virtuous laws” and habits of the people.

      Reply

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