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Republican Legal Theory

The History, Constitution and Purposes

of Law in a Free State

M.N.S. Sellers

Republican Legal Theory

Also by M.N.S. Sellers

AMERICAN REPUBLICANISM: Roman Ideology in the

United States Constitution

THE SACRED FIRE OF LIBERTY: Republicanism,

Liberalism and the Law

AN ETHICAL EDUCATION: Community and Morality in the

Multicultural University (editor)

THE NEW WORLD ORDER: Sovereignty, Human Rights

and the Self-Determination of Peoples (editor)

Republican Legal Theory

The History, Constitution and Purposes

of Law in a Free State

M.N.S. Sellers

Regents Professor of the University System of Maryland and

Director of the Center for International and Comparative Law

School of Law

University of Baltimore

© M.N.S. Sellers 2003

All rights reserved. No reproduction, copy or transmission of this

publication may be made without written permission.

No paragraph of this publication may be reproduced, copied or transmitted

save with written permission or in accordance with the provisions of the

Copyright, Designs and Patents Act 1988, or under the terms of any licence

permitting limited copying issued by the Copyright Licensing Agency,

90 Tottenham Court Road, London W1T 4LP.

Any person who does any unauthorised act in relation to this publication

may be liable to criminal prosecution and civil claims for damages.

The author has asserted his right to be identified as the

author of this work in accordance with the Copyright, Designs and

Patents Act 1988.

First published 2003 by

PALGRAVE MACMILLAN

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PALGRAVE MACMILLAN is the global academic imprint of the Palgrave

Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd.

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Union and other countries.

ISBN 1–4039–1575–X hardback

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Printed and bound in Great Britain by

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This book is dedicated to Nicholas Sellers on the

occasion of his seventieth birthday.

In primisque hominis est propria veri inquisitio

atque investigatio.

Ergo unum debet esse omnibus propositum, ut eadem sit utilitas unius cuiusque et

universorum; quam si ad se quisque rapiet, dissolvetur omnis humana consortio.

M. Tullius Cicero, de officiis, III.vi.26

Omnino qui rei publicae praefuturi sunt, duo Platonis praecepta teneant, unum,

ut utilitatem civium sic tueantur, ut, quaecumque agunt, ad eam referant obliti

commodorum suorum, alterum, ut totum corpus rei publicae curent, ne, dum partem

aliquam tuentur, reliquas deserant.

M. Tullius Cicero, de officiis, I.xxv.85

vii

Contents

Preface viii

1 Introduction 1

2 The Origins of Republican Legal Theory 6

3 Republican Influences on the French and

American Revolutions 16

4 Republican Legal Systems 26

5 Republican Impartiality 32

6 Republican Authority 42

7 The Actual Validity of Law 56

8 Ideals of Public Discourse 62

9 Group Rights and Democracy 71

10 Republicanism, Liberalism and the Law 77

11 Basic Elements of Legislative Structure 96

12 History, Liberty and Comparative Law 99

13 Legal Historians and Social Change 102

14 Republican Government in the United States of America 106

15 Republican Principles in International Law 120

16 Conclusion 139

Notes 146

Short Bibliography on Republicanism 186

Index 191

viii

Preface

Republican legal theory is not new, not complicated and not very controversial,

once it is understood; but neither is it very well known, to most lawyers and

politicians. Republican doctrines, institutions and attitudes dominate the

political and legal structures of North America and Western Europe, and

recently also of South America and Eastern Europe, with growing influence

in Asia and Africa, but the theoretical coherence and republican nature of

most such political and legal advances go unremarked and unexamined.

Many people do not know what republicanism is (even as they pursue it)

and avoid using the word, or use it in some partisan sense, peculiar to their

own national politics and local situation. This book grew out of my observation

that political liberty began with the self-consciously republican reforms of

the seventeenth and eighteenth centuries, my belief that republican govern￾ment has vastly improved the human condition since then, and my conviction

that deliberately and reflectively republican law and politics will advance

the public good more effectively once republican history and purposes are

fully explained and recognized by their beneficiaries.

Legal and political systems fall into two broad categories: those that work

for the common good of the people and those that do not. The first are

republics in the word’s broadest sense (in that they serve the res publica),

whatever their actual constitutions. Most states claim to be republics in this

sense, by serving the common good, but many are not. Republican legal

theory works out which laws and what constitution will serve the common

good best. The broad outlines of republican government have been known

(as the eighteenth-century republican John Adams observed) since “the

neighing of the horse of Darius”, but seldom fully implemented. The funda￾mental requirements of republican government include: popular sovereignty,

the rule of law, a deliberative senate, a democratic popular assembly, elected

executives, an independent judiciary, and a general system of checks and

balances, to protect public liberty against corruption and to safeguard the

equal individual rights of all citizens against each other and against the

state. Together these institutions secure the republican virtues in government,

which have introduced a new era of justice into politics, wherever they have

prevailed.

Republican principles and virtues have advanced in recent years, but not

usually under that name. Republican legal theory enjoyed a brief vogue in

American law schools in the mid-1980s, when law professors opposed to

President Ronald Reagan’s constitutional “originalism” seized on the United

States Constitution’s republican principles as a counterweight to (what they

Preface ix

criticized as) America’s dominant “liberal” ideology. But academic lawyers

of the left, who had clutched at republican doctrine to support judicial

activism and local democracy, soon found its reliance on checks and balances

and the rule of law inconvenient. Academic lawyers of the right, for whom

republicanism now evoked their opponents’ recent tactics, were happy to

see the concept dropped, as a possible threat to their market-oriented

convictions. Both sides in the shallow academic culture wars had

approached republican doctrine in the spirit of litigants, quarrying history

for partisan advantage, without real interest in learning from the past or

understanding republican legal theory for its own sake. This discredited

republican ideas for many lawyers, put off by this partisanship, who might

have benefitted from a better understanding of republican legal institutions.

Lawyers, like all thoughtful people, should study republican legal theory

for two primary reasons: first, because republican principles have formed

the central institutions of Western liberal democracy, and second, because

they provide the only true, correct, and just way of viewing the law. Law

and government should serve the common good of the people. The common

good of the people will be found best through the checks and balances of

the republican form of government. All law does claim to serve justice, and

to do so, must take the common good of the people properly into account.

Most people, when given the opportunity, have embraced these truths. The

march of liberation over the past four centuries has followed this republican

path. This book will try to make the way a little clearer, by explaining what

republican legal doctrine is, where it came from, why it is useful, and how it

might be improved to serve the common good of the people better, with

greater liberty and justice for all.

Most of the discourses that appear in this book repeat or develop remarks

made earlier in articles and public talks, some of them already published:

Chapter 1 was published as “Republican philosophy of law” in C.B. Gray

(ed.), The Philosophy of Law: An Encyclopedia (1999); Chapter 2 as “Republicanism

(philosophical aspects)” in the International Encyclopedia of the Social and

Behavioral Sciences (2001); Chapter 3 as “The Roman republic and the French

and American revolutions” in H.I. Flower (ed.), The Cambridge Companion to

the Roman Republic (2002); Chapter 4 as “Republican legal systems” in

R. Dreier, C. Faralli and V.S. Nersessiants (eds), Law and Politics Between

Nature and History (1998); Chapter 5 as “Republican impartiality” in 11

Oxford Journal of Legal Studies (1991); Chapter 6 as “Republican authority” in

5 Canadian Journal of Law and Jurisprudence (1992); Chapter 7 as “The actual

validity of law” in 37 American Journal of Jurisprudence (1992); Chapter 8 as

“Ideals of public discourse” in J. Schonsheck et al. (eds), Civility (2003);

Chapter 10 as “Republicanism, liberalism and the law” in 86 Kentucky Law

Journal (1997); Chapter 14 as “Republican government in the United States

of America” in N. de Araujo, P. Messitte, E.G. Northfleet and M.N.S. Sellers

(eds), Liberty e Liberdade: Justice and the Courts in Brazil and the United States of

x Preface

America (2003); and Chapter 15 as “Republican principles in international

law” in 11 The Connecticut Journal of International Law (1996).

Many people have helped me in preparing this book for publication, I

would like to thank Joyce Bauguess, Donna Frank, Barbara Jones, Gloria Joy

and Martha Kahlert for typing the manuscript. Luciana O’Flaherty for

editing the final product, and Nadia de Araujo, Paul Cliteur, Harriet Flower,

Christopher Gray, Philip Pettit, Jonathan Schonsheck, Jeremy Waldron and

Carla Zoethout for reading and criticizing my work. My research was funded

by the Academic Council of the United Nations System and the University

of Baltimore Educational Foundation.

As ever, my greatest debts are for the patience and encouragement of my

wife, Frances Stead Sellers, and of my daughter, Cora Mary Stead Sellers,

sources and guardians for me of all those private goods without which the

public good would have no value. I am grateful to my uncle, Nicholas Sellers,

to whom this book is dedicated, for introducing me to the study of law.

Republican legal theory has set the institutions of government on a course

of progressive improvement over the last four centuries. Whenever the

checks and balances of republican government have stood firm, liberty and

justice have advanced. When republican forms have been absent, tyranny

and oppression have thrived. The great question for lawyers as for all people

everywhere has always been: what laws and constitution will best secure

government for the common good, through a just and stable administration

of justice, with equal concern and respect for all? All laws and governments

claim to seek this end, which is their only legitimate purpose. Only those

governments that actually do so are republican in the best sense of the

word. “All Men are created equal [and] endowed by their creator with certain

unalienable Rights, [and] among these are Life, Liberty, and the Pursuit of

Happiness. [It is] to secure these Rights [that] Governments are instituted

among Men, deriving their just Powers from the Consent of the Governed.”

Without the republican form of government, liberty and justice will never

be secure.

M.N.S. Sellers

Hawthorn Hall

Baltimore

4 July 2002

1

1

Introduction

This book is a collection of fifteen discourses on republican legal theory,

which is to say on the republican doctrine that laws and the state should

always serve the common good or res publica of a nation’s people or citizens.

Already in the age of Plato1

and Aristotle,2

reflective persons understood the

common good of the people to be the only legitimate basis of justice,

government and law.3

Few rulers since have dared to deny this fundamental

truth, and even the most tyrannical governments have attempted, not so

much to refute republican doctrine, as to evade it. Rulers often claim to be

just, and assert an obligation to obey the laws that they promulgate, with￾out constructing persuasive arguments why anyone should do so. The dis￾courses collected in this volume consider contemporary legal questions

from a republican perspective, seeking to clarify which laws and rulers

deserve obedience, by considering what would constitute a just rule of law

in a legitimate commonwealth or state. The questions presented do not so

much concern specific legislation or particular aspects of the public good as

they do the principles that follow from seeking a worthwhile life for all citizens.

Republican legal theory considers which legal rules and procedures will

recognize and implement the common good of the people most completely.

Everything else should follow from this.

The Romans gave republics their name, their purpose of supporting

worthwhile lives for all citizens,4

and a catalog of techniques for doing so.

This republican constitution or “republican form of government”, as articu￾lated by Marcus Tullius Cicero5

and Polybius,6

and imitated by their successors

in Italy, England, America and France, secured government for the common

good through the checks and balances of a mixed constitution, comprising

a sovereign people, an elected executive, a deliberative senate and a regu￾lated popular assembly. The product of republican government is “liberty”,

by which the Romans meant subjection to public laws made for the

common good, and not to any other person’s private will or arbitrary

power. Popular sovereignty, the deliberative senate and other fundamentals

of the republican constitution prevented the domination of citizens by any

2 Republican Legal Theory

single interest or faction in society. Republicans understood justice, liberty

and the common good to be essentially related concepts. Justice consists in

whatever social arrangements between persons will best secure the common

good of all people. Liberty is the status of persons in societies whose social

arrangements are just. The common good of the citizens ultimately deter￾mines all justice, liberty and the law in a fully republican state.

Republican legal theory developed out of the jurisprudential and constitu￾tional legacy of the Roman res publica, as interpreted over two millennia in

Europe and North America. Leading republican authors include Marcus Tullius

Cicero, Niccolò Machiavelli, James Harrington, Algernon Sidney, John Adams

and (more controversially) subsequent self-styled “republican” legislators

such as Abraham Lincoln and Charles Renouvier. Many important writers

outside the republican tradition also reflect a strong republican influence,

including the baron de Montesquieu, Jean-Jacques Rousseau, and Immanuel

Kant. These eighteenth-century authors illustrate the close connection

between republican ideas and the European enlightenment, leading up to

the French and American revolutions.

The central concepts of republican legal theory include pursuit of the

common good through popular sovereignty, liberty, virtue, mixed govern￾ment and the rule of law, linked by a Roman conception of libertas that

defines justice between free people as subjection to no one’s will or interest,

but only to general laws approved by the people for the common or “public”

good of the community.

Republican theorists have usually followed Cicero’s conception of republican

laws and institutions, as set out comprehensively in his treatises de officiis

(on duties), de legibus (on the laws) and de re publica (on the republic). Other

fundamental texts include the first ten books of Titus Livius on the history

of Rome, the sixth book of the Histories of Polybius, and much less import￾antly, the works of Aristotle, insofar as they anticipate and justify Roman

practices. Of these authors only Cicero primarily concerned himself with

legal institutions, not just in his monographs, but also in letters and orations,

including the widely read Philippicae and speeches against Catiline. Cicero

and Livy took the proper province of legislation to be the public interest or

“res publica”, protected by laws established in advance, to avert the

improper influence of private self-interest. Private interests (“res privata”)

also deserved protection, within their own sphere, as defined by public

deliberation. The republican tradition justified popular sovereignty as

a necessary check against self-interested factions, but only under the guidance

of an infrequently elected legislative council or “senate”. Necessary components

of a “republican” constitution on the Roman model include a bicameral

legislature, standing laws and elected magistrates.

Constitutional law has always been the central concern of republican

legal theory, but several other components of the republican legal tradition

have provided judges, legislators and lawyers with standards of virtue and

Introduction 3

a vocabulary for legal discourse. Republican public virtue (“virtus”) is a dis￾position to serve the common good. The Lives of L. Mestrius Plutarchus

supplies a rich source of republican narratives and models of civic virtue.

The writings of Cornelius Tacitus and Gaius Sallustius Crispus contain salacious

accounts of the vices that emerge when republican principles decline. All

three authors had considerable influence on the aims and invective of sub￾sequent republican politics.7

The central objective for republicans since Cicero has been to revive the

liberty, the principles, and the virtues of the Roman republic, while avoiding

the vices and constitutional flaws that led eventually to the tyranny of the

emperors and to the tragedy of civil war. Cicero had proposed the maintenance

of frequent rotation in office for executive officials, and a strengthened

senate, to control both the magistrates and the popular assembly. Macchiavelli

suggested in his Discorsi sopra la prima deca di Tito Livio that republics thrive

best in poverty and war, which unite citizens in pursuit of the common

good. He concluded that wealth and leisure made Rome too corrupt to be

free. Harrington agreed in his Commonwealth of Oceana (1656) and advo￾cated limits on landholding, and rotation in office, to maintain the civic

equality necessary for true republican virtue. Sidney’s Discourses Concerning

Government (1698) argued that wealth would actually strengthen the republic,

and endorsed representation in the popular assembly to check the excesses

of direct democracy. John Adams’ Thoughts on Government (1776) and

Defence of the Constitutions of Government of the United States of America

(1787–1788) also embraced representation, with the added check of a veto

in the chief executive. James Madison writing his contribution to The Feder￾alist (1787) under the republican pseudonym of “Publius”, praised the

American republic’s central constitutional reform, which comprehensively

excluded direct democracy from any active role in legislation.

Despite their different proposals for protecting republican liberty and

virtue, all the main authors in the republican tradition shared a basic con￾ception of the constitution and legal order that they sought to revive. This

embraced pursuit of the common good through standing laws, ratified by

popular sovereignty, in a bicameral legislature of educated senate and

democratic popular assembly, for implementation by elected magistrates.

Republicans agreed that unelected kings or any other uncontrolled power in

the constitution would lead to self-interest and corruption. Liberty and the

common good depended on “mixed government” and a “balanced constitu￾tion”. During the age of European revolution, even many theorists who

remained reluctant to identify themselves as “republican”, nevertheless

accepted aspects of this ideology. Montesquieu supported monarchy, which

made it impossible for him to endorse or even accurately to describe repub￾lican government. He did, however, embrace the common good and rule of

law in De l’espirit des lois (1748), as well as balanced government, the senate,

and even a (representative) popular assembly. Rousseau viewed a sovereign

4 Republican Legal Theory

popular assembly as the essential attribute of legitimate government. His

discourse Du contrat social (1762) insisted, as in Rome, on the ratification of

all laws by a general vote of the people. Rousseau would have restricted the

senate to a purely executive function. Kant proposed in Zum ewigen Frieden

(1795) the creation of an international federation of republican states, to

provide the basis for perpetual peace.

Rousseau’s identification of liberty with law, and law with the common

good, repeated the republican formula of Cicero, Machiavelli, Harrington,

Sidney and even Montesquieu, who put it into a monarchial context. Rousseau

differed only in his program for realizing republican virtue. Republicans,

since Harrington, had endorsed representation as a technique for purifying

the popular will. Republicans, since Cicero and Polybius, had praised mixed

government as the best control over private passions in public life. Rousseau,

however, preferred the democratic formula that no law is valid without a

plebiscite. He attributed this idea of a unitary state to the Spartan king

Lycurgus, which reflected his general preference for Spartan equality over

republican balance – even to the extent of accepting slavery for some to

maintain the liberty and virtue of the rest. Montesquieu had also admired

Spartan poverty and virtue. Both authors insisted that republican purity

could survive only in small states or cantons, such as Sparta and Geneva.

French unicameralism and the Terror under Maximilien Robespierre both

derived in large part from Rousseau’s fascination with the homogeneity,

poverty and asceticism of Sparta. This has colored the tone of French repub￾licanism ever since, and marks the beginning of separate republican traditions

in France and the United States.

The republican triumph in the American Civil War represented a rejection

of “Greek” democracy, with its frank reliance on slavery, and a return to the

Roman rhetoric of liberty, and to Cicero’s condemnation of servitude as

a violation of natural law. American republicans never feared commerce or

wealth as the Spartans had, and the new American “Republican” party

sought to maximize both, by reinvigorating the common good through

a widened electorate and universal rule of law. The Fourteenth Amendment

to the United States Constitution protected the original Constitution’s guar￾antee of a “republican form of government” by forbidding the states to deny

any person the equal protection of the laws, or to withhold citizenship and

its privileges from any persons born in the United States.

The strongly republican nature of early American constitutionalism

produced a senate, a bicameral legislature, elected executives, balanced

government, popular sovereignty, and broad commitments to the “general

welfare”, to “liberty” and to the “due process” of law. Yet twentieth

century constitutionalism developed after the Second World War towards

a procedural “liberalism” that endorsed the frank pursuit of private self￾interest by an atomized and unreflective electorate. The recent revival of

republican legal theory emerged in response to moral dissatisfaction with