This paper discusses the basic attributes of republican legal systems. I will suggest that republican principles provide the only sound basis for a just legal order, and conclude that all laws in all jurisdictions deserve public deference only to the extent that they reflect republican structures of government and legislation

Sellers, Mortimer N.S.

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Republican Legal Systems

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University of Baltimore Law ScholarWorks@University of Baltimore School of Law Book Chapters Faculty Scholarship 1998 Republican Legal Systems Mortimer N.S. Sellers Follow this and additional works at: https://scholarworks.law.ubalt.edu/fac_bookchapters  Part of the Law and Philosophy Commons Eumpean Journal of Law. Philosophy and Computer Science Law and Politics between Nature and History Vol. 2: 205-212v‘REPUBLICAN LEGAL SYSTEMSF^ MORTIMER SELLERS*II University of BaltimoreThis paper discusses the basic attributes of republican legal systems. I will sug- I gest that republican principles provide the only sound basis for a just legal order,[ and conclude that all laws in all jurisdictions deserve public deference only to the ; extent that they reflect republican structures of government and legislation.I 1 RepublicanismI By “republican legal systems” I mean legal systems in the republican legal tra- I dition, systems that embrace the basic tenets of republicanism, as best described ! and elaborated by Marcus Tullius Cicero, Polybius, Titus Livy and their various I heirs and followers in Italy, England, France, and the United States of Amer- j ica (Sellers 1998). The fundamental test of republican doctrine is service to the res publica or “common good of the people” (Sellers 1997). Cicero defined re­publics as states belonging to “peoples”, by which he meant large numbers of persons brought together to create a common sense of justice and a shared public good (Cicero, De re publica, I.xxv.39).' This remains the basis of republican thought today. Republican legal systems are systems that set out to serve justice and the common good of the people.Most legal systems claim to do so. The essential nature of law implies asser­tions of justice (Sellers 1992). But republicanism takes these assertions seriously, and proposes a political technique for realizing justice and the common good, through popular sovereignty, the rule of law, and political checks and balances among elected officials. These three desiderata of republican government defend “liberty” as it was understood by the republican authors who introduced the Ro­man term libertas into modern legal thought (Sellers 1996). Republican liberty requires the dominion of equal laws, made by common consent for the general*I would like to thank Bernard Dauenhauer, Maria Elosegui, Lyman Sargent and Michaela Strasser for their comments on this paper.IIi206 MORTIMER SELLERSinterest or public good of all (Adams 1787, I. 123). The first two provisions guarantee the third, and are only “republican” to the extent that they do so.2 LiberalismContemporary legal scholars sometimes oppose “republican thought” to “liberal­ism”, associating the first with democracy, and the second with human rights (see, e.g., Horwitz 1987; Symposium: the Republican Civic Tradition 1988; Habermas 1996). This creates unnecessary confusion, and obscures the context in which both liberty and democracy entered modern legal discourse. Liberty {libertas) and popular sovereignty {imperium populi) persisted together in the republican legacy of Rome and blossomed in the republican triumphs of France and the United States.^They diverged when the unchecked unicameral French legislature collapsed into tyranny and terror. Liberalism first represented a shocked bourgeois reaction to excesses of the French revolution.Republican liberty requires that no person be constrained by any other per­son’s will or passion. Laws, government decrees, or other coercive action are unjust unless justified by pursuit of the common good (Sidney 1698, ch. 1, sec. 5). This creates the republican distinction between liberty and license. “License” is the unconstrained ability to do what one pleases, even to the detriment of oth­ers. “Liberty” implies constraint, in service of the common good. But early liberals, such as Benjamin Constant, drew a false distinction between the liberty of the moderns and the liberty of the ancients (Constant 1819). Constant rejected popular sovereignty and democracy and turned exclusively to rights. Liberalism redefined liberty as the ability to do what one wants, and sought to maximize self-gratification through the grant of individual rights,^in the old English con­stitution, without political rights, as in America or Rome.3 The Common GoodRepublicanism requires democracy and liberalism does not. But they differ less in this (“liberal democracies” exist), than in liberalism’s implicit rejection of the common good. All republican doctrine follows from pursuit of the common good, while liberalism assumes that there is no “true” public justice or common good to be found — only “reasonable” accommodations between rival private interests (see, e.g., Rawls 1993). This is a subtle distinction. Republicans do not deny the existence of the private sphere, since recognizing the res publica implies a res privata. But republican doctrine depends on creating a common public interest. The chief end of law and society should be to make the interests of each individual and of the whole body politic the same (Cicero, De officiis, III.vi.26).^ Citizens who set out to find a common interest in their shared humanREPUBLICAN LEGAL SYSTEMS 207nature will be more likely to live in peace and justice than citizens who do not (ibid. III.V.23).Let me review the republican argument for pursuit of the common good. This does not deny the pluralism of individual lives and lifestyles, or the importance of toleration and diversity. Individual interests exist, and sometimes conflict. But many important aspects of human flourishing may only be realized collectively, in large social groups. Humans will inevitably interact, and develop rules to gov­ern their interactions. Some systems are better than others and should be sought (if not, there can be no harm in seeking them). Human nature provides the ba­sis from which such systems must be built. But people disagree about truth and Justice. Long deliberations fail to produce consensus. Individuals need: first, a technique for testing their beliefs about Justice and the good life; second, a tech­nique for protecting themselves against others in pursuing Justice and the good life; and finally, a technique for obtaining the cooperatioh of others in building Justice and good lives. These goods are all common. Without agreements about Justice, and partnerships for the public good, individual lives will be confused, unsafe, and mired in isolation.4 Popular SovereigntyRepublican legal systems since Rome have always rested on popular sovereignty as the first and fundamental basis of liberty and the public good. By popular sovereignty I mean free votes for legislators or the laws, in which all citizens can have a voice. Popular sovereignty solves the basic republican problems of un­certainty, unsafety, and non-cooperation. Free votes of the people constitute the best technique for (1) finding the truth; (2) getting others to accept the truth; and (3) arranging whatever cooperation may be necessary to take right action. Pop­ular sovereignty offers all three by assuming every person capable of perceiving moral truths. This allows citizens to defer to majorities without admitting error, even when not convinced. National deliberation may yield truths that I do not approve, but it holds out the prospect of correcting public mistakes, and respects the reason of the citizens it overrules (Sellers 1991).Republicans speak of popular sovereignty or the Roman imperium popuH rather than democracy because democracy savors of Athens and Greek self- indulgence (Adams 1787, III. 160-162; Publius 1787-1788, number XIV; Sid­ney 1698,11.20; 30). The republican revolutions in America and France intro­duced democracy into modem legal discourse, but avoided the term “democracy” for twenty years, to maintain the distinction between government for the public good, and government serving private interests and passions. Republicans em­braced popular sovereignty as the best shield of liberty and test of the common good. But democracy implied voting one’s interests, for what one wants, not208 MORTIMER SELLERSwhat would be right to do. Republicanism on the Roman model entails voting for all magistrates and laws, but voting structured to attain the common good, and not the narrow interests of favored sections of society.5 The Separation of PowersHow then to keep democracies honest? The separation of powers offers an ob­vious solution. Governments should protect liberty and the common good, but will not do so when theii; power is unchecked. Dividing governmental power, and balancing the strength of its different divisions, can prevent any one group from abusing its authority. The structure of the old Roman res publica, mimicked by subsequent republican governments, required approval of all laws by the peo­ple, but also a senate to propose the laws, and elected magistrates to administer them. Inadequate balance led to despotisism — to Caesar in Rome, Cromwell in England, Bonaparte in France, and Jackson in the United States."* Republicans always aim to perfect the balance of government in defense of liberty and pursuit the common good.Modern republics rely on representation in the popular assembly, large elec­tion districts, and infrequent elections to purify the public voice and counteract political self- interest. The people never rule directly, but always through elected officials. They do not wield power themselves, except on election day. This pre­vents the main threat to republican government — corruption, which is to say any exercise of public power to serve a purpose other than the common good and justice. Staggered elections control the popular emotions. The separation of powers sets the authorities to watch each other, so that ambition will counteract ambition in defense of the public good (Publius 1787-1788, number LI; Adams 1787, III. 505; Montesquieu 1748, II.11.4.).6 The Rule of Law.The third traditional desideratum of republican government requires the rule of law — the “empire of laws and not of men”, which protects justice and the com­mon good against private interests by constraining official discretion in advance. Livy endorsed this imperium legum for Rome, and was followed by Harrington, Sidney, Adams, Madison, and even Rousseau in concluding that “toutgouveme- ment legitime est republicain". Republican legal systems rest on the rule of law, with the understanding that nothing can be law without approval by the people, in pursuit of the common good (Rousseau 1762,11.6; Livius, Ab urbe condita, 2.1.1.; Harrington 1977,161; Sidney 1698,1.l n.2; Adams 1787,1. 124-6; Pub­lius 1787-1788, number XXXVII).Republican legal systems require the rule of law because, human nature being what it is, any government official charged with making decisions will tend toREPUBLICAN LEGAL SYSTEMS 209make them in his own private interest. If decisions are provided for by law and made collectively before specific situations arise, they will more likely serve the public good than if made bn the spot, by possibly self-interested participants. Not every question can or should be guided in this way. Discretion will remain. But Republican governments try to limit official discretion and remove temptation by enforcing what legislation they have, and using popular sovereignty to define the scope of governmental power. The first step towards republican government is the battle for independent judges, serving during good behavior, “quam diu .se bene gesserint”, rather than at the discretion of the executive or people.®7 NationalismRepublican legal systems seek to create Justice and the common good among citizens. But what of non-citizens? Like democracy and liberalism, modern na­tionalism began with the republican revolutions of the late eighteenth century. As the common good developed into the public interest, republics became nations by constructing local cultures to serve their social needs. The private liberty of citi­zens implied the public liberty of nations, limited only by the common interest of all nations in peace and justice between themselves. Christian Wolff suggested a world republic (Wolff 1934, 2.xli-xli). But Immanuel Kant first articulated the modern view, which sought world peace through numerous independent re­publics, separately developing their own national identities, without outside in­terference (Kant 1977).A great many issues of justice and the common good are best addressed in smaller cultural units, which can develop institutions suited to their history and geographical circumstances. Nationalism reflects this reality, as does Cicero’s idea of the res publica as a group of people united to create their own sense of justice and comm.unity. Republics will become nations, in the sense of develop­ing a common culture. Nations should become republics, in the sense of trying to bring the interests of individuals into harmony with the interests of the com­munity. Creating a common good may require cultural community. But cultural community can lead to xenophobia, or local intolerance and persecution in the interest of locally dominant elites. The idea of a common good promotes small communities and creeping homogeneity while justice may require numerous par­ticipants, and cultural diversity.8 FederalismFederalism solves this problem posed by republican nationalism. The conven­tional wisdom since the fall of Rome has insisted that republics must be small, to avoid Rome’s descent into tyranny and oppression.® But small republics quarrel, and cannot always defend their independence. By federating, republics protect210 MORTIMER SELLERSthemselves against aggression, but also against internal subversion or corruption. This was the intention of the United States Constitution, which guarantees every state in the Union a “republican form of government” (USC 1787, Article IV, Section 4). The federated republic of the United States provides a republican model for solving the republican dilemma of republican intolerance. Federation leaves local culture and development to the self-determination of self-governing republics or nations, while putting certain individual rights under the protection of an over-arching union of republics, to prevent the tyranny of local majorities.So a modern theory of republican community would locate rights-protecting institutions at the international level, while leaving culture-promoting activities to be locally determined. Each government’s international role depends on in­ternal popular sovereignty and self-determination. Federalism reinforces the ba­sic purposes of republican government by preventing the excesses of popular sovereignty. But popular sovereignty remains the best test of justice, and private perceptions of the common good.9 ConclusionThe basic attributes of republican legal systems Include service to justice and the common good through popular sovereignty, the separation of powers, the rule of law, and an independent judiciary. Strictly speaking, only the first is essential (Paine 1792, Part II. iii),^ but experience and tradition have made it clear that the others must follow. Moral truths cannot be found without popular sovereignty, will not be followed without the separation of powers, cannot be delineated without the rule of law, or protected without an independent judiciary. Republican legal systems will display all four attributes, which bring liberty in their train, and are implicit in the very idea of law, which always claims to serve justice and the public good.Democracy, liberalism, and nationalism all entered*modem legal discourse through the republican tradition, and will not be separated, when properly under­stood. Democracy is justified by its service to truth, liberalism by its protection of truth, and nationalism by its construction of truth. People need communities and communities create their own sense of justice and the common good. Both rest on human nature, but human nature locally expressed. Legal systems derive authority from their service to the basic aims of society. Without republics there will be no justice — without, within, or between states and nations.REPUBLICAN LEGAL SYSTEMS 211Notes1. "Res publica res populi [est], populus autem non omnis hominum coetus quoquo modo congre- gatus, sed coetus multitudinis juris consensu et utilitatis communione sociatus.”2. George Washington claimed both when he inaugurated his new federal republic in 1789. See Washington 1988,460-63.3. “Ergo unum debet esse omnibus propositum, ut eadem sit utilitas unius cuiusque et universorum; quam si ad se quisque rapiet, dissolvetur omnis humana consortio."4. At least in the eyes of Henry Clay (1959,658-59).5. See, e.g., the Constitution of the United States, art. Ill, sec. 1; and the English history behind it (Blackstone 1765, vol. I, 258).6. The classic and most influential statement of this position was by Baron de Montesquieu (1748, I.viii.l6).7. “What is called a republic is not any particular form of government. It is wholly characteristical of the purport, matter, or object for which government ought to be instituted, and on which it is to be employed, res-publica, the public affairs, or the public good; or, literally translated, the public thing"ReferencesAdams, J. 1787. A Defence of the Constitutions of Government of the United States of America. London.Blackstone, W. 1765. Commentaries on the Laws of England. Oxford.Cicero, Marcus Tullius. 1977. De re publica. Stuttgart.Cicero, Marcus Tullius. 1965-69. De officiis. London.Clay, H. 1959. ‘Speech of January 20,1818’. In: James F. Hopkins et al. (eds.), The Papers of Henry Clay, vol. 2. Lexington.Constant, B. 1819. De la liberte des anciens comparee a celle des modemes. Paris. Habermas, J. 1996. ‘The European Nation State — Its Achievements and Its Limits On the Past and Future of Sovereignty and Citizenship’. Ratio Juris 9, 2.Harrington, J. 1977 (1656). ‘The Commonwealth of Oceana’. In: J.G.A. Pocock (ed.), The Political Works of James Harrington. Cambridge.Horwitz, J.M. 1987. ‘Republicanism and Liberalism in American Constitutional Thought’. William and Mary Law Review 57, 29.Kant, 1.1977 (1781). Zum ewigen Frieden. In: Werkausgabe. Frankfurt.Livius, Titus. 1917. Ab urbe condita. Oxford.Montesquieu, C. de Secondat Baron de. 1748. De I‘Esprit des Lois. Paris.Paine, Th. 1792. The Rights of Man. London.Publius [James Madison, Alexander Hamilton, John Jay]. 1787-1788. The Federalist. Hew York.Rawls, J. 1993. Political Liberalism. New York.Rousseau, J.-J. 1762. Du contrat social. Paris.Sellers, M. 1991. ‘Republican Impartiality’. Oxford Journal of Legal Studies 273,11. Sellers, M. 1992. ‘The Actual Validity of Law’. American Journal of Jurisprudence 283, 37.Sellers, M. 1996. ‘Republican Liberty’. In: Gabriel Moens and Suri Ratnapala (eds.). The Jurisprudence of Liberty. London.Sellers, M. 1997. ‘Republican Theory’. In: Christopher B. Gray (ed.). The Philosophy of Law: An Encyclopedia. New York.Sellers, M. 1998. ‘The Republican Legal Tradition’. To appear in the International Journal of the Classical Tradition.Sidney, A. 1698. Discourses Concerning Government. London.212 MORTIMER SELLERSSymposium: The Republican Civic Tradition. 1988. Special issue of The Yale Law Journal 97, 8.Washington, G. 1988 (1789). ‘The First Inaugural Speech’ (April 30, 1789). In: W.B.Allen (ed.), George Washington: A Collection. Indianapolis.Wolff, C. 1934 (1764). Jus gentium methodo scientifica pertractum. Trans. Joseph H. Drake. New York.

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Republican Legal Systems

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