October 06, 2008

Sovereignty, Law and Election

When we elect politicians we have an idea of what they ought to do. We have an idea of what politicians are- normally ambitious people with a demand to govern- but the substance of governing is something that has changed down the ages. Furthermore the things we might believe that people should have an input in in order to stabilise and secure government have changed down the ages. The story of the decemvirs in Livy is interesting in this regard because it demonstrates the way that we have a different conception of what election does than the ancient Romans- I will demonstrate later that institutionally we actually have much more in common with Livy than we might think- but the difference in outlook is interesting. We think of election as something that legitimates leglislation- that is not the way that Livy thinks about it.

Livy talks a lot about legislation in the period of the decemvirs. We have already seen that he thinks of the decemvirs as exploiting the knowledge and resources of other ancient civilisations- deferring to the wisdom of great legislators in the past and in Greece, bringing the law crafted by old wise men to Rome. Livy beleives that law is handed down to the masses: when he speaks of the formation of Roman law, through the adoption of a set of principles and their digestion by the population, he is speaking of a flow from the ruler to the ruled, from the wise to the generality of people. Livy in this sense adopts an argument about politics which is not ministerial- the population have the right of veto but not the right of disposition. And it is this process that for Livy creates 'the fountainhead of public and private law, running clear under the immense structure of modern legislation' (III 34)- notice the image there of the flow of wisdom through the intentions of the population, starting at a fixed point in time, at an undemocratic and exalted moment and continuing through the virtu of the people.

Livy's view of legislation therefore is entirely based upon the formation of justice and then its adjustment to the character of the people who live under it.His view of judging is rather interestingly distinct from that. Livy has no problem with good judges- the first decemvirs ruled, he reminds us, tyrannically but they were good men and so provided 'prompt justice, of an almost superhuman purity' (III 33). We are here in the world of Gods- of Kings as the supreme and semi divine law givers. But of course Livy provides another example as the counter to that- the supreme and tyrannical judge can be overwhelmingly virtuous but he is more likely to be overwhelmingly vicious- he is more likely to be the second set of decemvirs, against whom there is no appeal and whose appeal is not to reason but to violence.

Ultimately this is where Livy is most distinct from a modern outlook on justice. Livy regards the original principles of justice as hard- and hence his population have no creative role in the manufacture of the ideal law code. But he regards the following discussion of justice to be simple: once you have set down the principles, any fool can know what they are doing. Hence his ideal decemvirs proceed secretly with the tables, but openly with the cases that they transact. It is a mark of the second set of decemvirs' ignominy that they have to cloak their justice in the mask of ceremonial violence and draw out military forces onto the streets (III 36). An appeal to unreason in judgement proceeds from the fact that for the second decemvirs, the 'man was everything, the cause nothing' (III 37). It is a parlous state of affairs- but one that Livy believes is an indication of something deeper and truer, that the will of the people gives you a sense of the communal intention. That can be swayed by violence, it can be swayed by the mob rule of an inspired orator- but it is unlikely to be swayed by personal knowledge- Rome afterall like Britain or America is too big for that.

The case of Verginia gives us an indication of what Livy means in this sense. Verginia was falsely appropriated by one of the decemvirs, Appius Claudius, because of her outstanding beauty as a slave. Her father as a consequence stabbed her and then revolted, destroying the decemvirate in the process. (III 43-8) The story though gives us an indication which I think is interesting- the issue at which both Appius Claudius and Tarquin fall is about a person, a single woman in both cases to whom a member of the royal family (Claudius or Sextus Tarquin) feels a violent and personal passion. This undermines their ability to give justice. The ordinary people therefore reclaim the state because ultimately their ability to give justice is more profound than that of the individual. The individual can provide wisdom but he cannot provide impartiality- at least that is Livy's view- and to some extent the frame of a republican representative government and a jury system with which we live suggests that though we do not recognise the argument, we live with its legacy.