The obvious English word for factio is faction, however, Andrew Lintott notes that in Roman comedies factio implies power from wealth and social status, rather than leadership of a political or economic special interest group which is the accepted meaning in liberal democracy. Rome existed for long enough, and the historical record short enough, that factio pops up with several meanings, including a corrupt oligarchy, but also the Roman optimates which were the noble and conservative families of the Senate.

Lintott argues that because of the vague description of factio in the Roman political record, the political effect of the Roman aristocracy is better determined through how the aristocracy controlled the consulship and their cohesion in the Senate.

The position of consul was originally the domain of the patricians alone, until the third century BC when plebians became eligible for the position through election. It appears that plebians is misleading as the position required Roman citizenship and in the increasing Roman Empire, this was a small privileged minority.

It also appears that the equistrian order (cavalry) and its high barriers of entry (400,000 sequesteres) meant that the plebians were high in the economic strata. These weren't dung shovellers being elected to the consulship, they were new wealthy families, who were outside of the original Roman nobility.

Lintott notes that despite some social mobility, with plebians families being integrated into the Roman aristocracy, the plebian consul's were still small in number:

new names form only about eight percent of the total in the consular lists in the period between the Pyrrhic War and the Second Punic War.

and:

A well known analysis of the period from 232 to 133 BC shows that the 200 consulships were shared between 58 gentes, 26 of which accounted for 159 consulships, and ten of which accounted for 99., effectively half the total.

That suggests that the Roman aristocracy was very cohesive, as well as competitive in the powerful positions, though within a small group of families.

This would suggest that a class reading of Roman politics may be in order, and since it was a democratic system, which combined voting from tribes and the military, that upward pressure from the majority was being dampened by the cohesive patrician class.

There appears that like the British monarchy, the Roman patricians bent as they needed to. For example the political communication between patricians and plebians prior to the establishment of the Tribunes, and when the position was abolished, was usually a riot. Lintott writes :

Moreover, as Cicero recognised, the plebs at Rome, deprived of its tribunes, resorted to the traditional method of riot in order to give vent to its grievances: the restoration of the tribunate of its full powers became desirable as a safety-valve.

Enfranchisement and political representation became important tools in not only political order, but also social and civil order.

The Tribune was a very powerful position, being made sacred while the Tribune was in office such that violence against them was a crime against divine law (not human law) and they also had the power of veto over consuls and the senate. Augustus, in establishing his power, made the emperor's positions equate to Tribune for life - which was more powerful and popular, with both patricians and plebians, than Caesar's constitutional position as dictator for life.

There was constant competition and the seeking of advantage between the patricians and plebians, and in the late republic, popular will was recognized as a very powerful political weapon, such that the nearest thing to what we would call parties developed. These were the optimates and populares. These were Roman conservatives, the optimates, and Roman popular politicians (normally Tribunes and Consuls), or populares, who pandered to the plebs. Which are political strategies that can be viewed under liberal democracy.

In the early republic the dominance of the patricians was shown in legislation as there were bans on marriage between patricians and plebians, as well as bans on plebians entering elected positions, though this changed.

I suspect this was mainly because of Rome's military success and subsequent conquest. This placed stress on the existing patricians to administer Rome, its provinces and new conquests while still supplying the consuls, senators, magistrates and generals. Essentially the franchise of administrative positions was expanded to include plebians, though rich ones that were Roman citizens, because of the demands of empire for an ever increasing number of skilled administrators.

The prorogatio imperium positions, which are the pro-consul and pro-praeter, were established in 326 BC as military positions to aid the military needs of the Consuls. This places them in the Roman middle republic and is probably a result of Rome's expansion during that period placing pressure on military and civil administration in the provinces.

The position of Consul was a civil one in Rome, but outside of Rome it was a military position. So consular prestige came from military campaigns - a triumph, which was a parade through Rome to celebrate a military victory, was essential for the political popularity of any aspirant public figure. Whether a triumph would be held was up to the Senate who would vote on such measures - meaning the Senate could control who received triumphs, but also, it made it impossible for them to vote down a triumph for a truly popular general.

The praetor was a position that was established during the middle republic as well, in 366 BC. The praetor was intended to be a consul, who was restricted to civil affairs in the city. Scullard writes that this position was created as a patrician only one after plebians became eligible for the Consulship, but notes that by 337 BC plebians became eligible for this magistrate position.

The pro-consul and pro-praetar were the prior term's consuls and praetors who were given imperium in the provinces after they had finished their elected term in the magistracy. This certainly did make the position of Consul powerful, as imperium continued with the prorogatio positions. In later years the provinces were used by former consuls and praetors to pay for all the bribery they had done the year before in order to get elected.

Andrew Lintott writes that the territories the pro-consuls and pro-praetors had imperium were massive even by today's standards; and meant that the military and economic power of Rome was in the hands of the pro-consuls and pro-praetors.

Moreover, the growth of Roman military power and empire, which ultimately allowed a single Roman commander discretion over territory which in the present day forms more than one nation-state, made the powers of a consul in Rome insignificant compared with those of a consul or proconsul abroad.

In the late republic and its political turmoil, pro-consuls were a source of constant consternation and pro-consuls preferred the pro-consulship of Cisalpine Gaul as it placed their military just north of Rome, close by in case of any political development for or against them. When the Senate went after Mark Antony with Octavian, Pansa and Hirtius; Antony was just north of Italy.

From the book:

In one respect this is a return to the status of the consulship in the pre-Sullan period, when major wars were fought by consuls, not pro-consuls with long-term commands.

Sulla was a dictator who effectively took over civil and military rule of Rome, suspending the Republic, and causing consternation amongst the Senators, patricians and other oligarchic members that he wouldn't relinquish his dictatorial powers. Sulla did. But political control had been recast and now came with the sword and dictatorship.

This is the problem with a non-written constitution it leaks constantly as new constitutional precedents and conventions are established with each successive emergency. It ends up being hacks upon patches which inevitably get used for other than what they were originally intended.

Mos is one of the latin words the Roman used for constitutional tradition. One of the curious natures of the Roman Constitution and legal system was how unwritten it was. Much of it was ius , which me might call customary, to mos which Lintott describes as 'the way things were done at the time'.

Most Romans were illiterate, unlike modern Australia which is a literate society. So written laws were mainly of value to the Magistrates, rather than the population. However, despite Australia's high literacy rate, you could probably count the people who actually read the laws or legislation in Australia on one hand.

I am willing to bet that even in the modern Auian political blogosphere there are very few who read legislation directly, and if they do, it is probably only one or two statutorial tracts.

The benefits of written law are at their most valuable when appealing to the judicial. They are also at their best in restricting the actions of public positions from arbitrary to regulated.

Tacitus wrote that when there was bad public administration in Rome a flurry of laws would come soon after from the Tribunes and assemblies - most of which were aimed at restricting the actions of the magistrates.

Another reason for the lack of written laws may have also been because criminal law was dealt with as a civil matter. There were no public prosecutors in Rome as we know them today in our legal system.

However, written laws were inscribed into brass plates and placed in prominent public places, such as temples and obelisks, in Rome, and the other Roman cities, so that the law was widely known. Many of the archaeological evidence for Roman law comes from these brass tablets.

Mos was intended to have the force of history - but again, we find it relieved from any binding force as the liberty of the sovereign under mos is deliberately for creating new convention. It is presumed that the sovereign's action will create a new contiguous force of custom; but again, that new precedent, and even precedent before it is subject to the whim of the sovereign.

It could be glibly argued that Mos led to the abuses of consulships, and pro-consuls and pro-praetors in the provinces, not to mention the new traditions of dictators and tribune that led to the Augustan empire. Then again, the counter argument is that Mos enabled plebian law to bind the patricians, and defeat the worst excesses of classism between Roman citizens (sucked to be a slave though pretty throughout Roman history).

The mistake is to read the Roman Constitution as a liberal democratic one. Basically, the Roman Constitution is from antiquity, and prior to the enlightenment. Rome was a martial-state and its constitution was a martial one. It political, social and economic structures were designed for martial success.

Mos, as a Roman institution, has to be seen within that framework. Most of the expansions of constitutional practice, especially the negative, in Rome were claimed under emergency. The tumult of war and violence was seen as a valid method to make the Roman Constitution reactive - the problem is, as Cicero found out, once the genie is out of the bottle it will not go back in.

It becomes expansive and not contractive; new powers, hard won, are rarely given up. Cincinnatus is the myth that says they are; Rome is the history that says they are not. It did not halt Roman military effectiveness, but did make the Roman political system more arbitrary.

From a liberal democratic point of view that is horrifying, but from a martial-state's point of view, it is probably just mos in action, and despite the lament for the republic by the likes if Cicero and Brutus, consuls continued to have military success under empire, the losers were the oligarchs, whose main political power was through the Senate and its feeder magistracies.

After Tiberius politics becomes arbitrary as well, mos compounds mos. Where once imperium hand over was consistent and ordered through the elections of consuls, praetors and tribunes each year; it was replaced with dynastic or violent passage of power from one Emperor to another with the support of the Senate or Pretorian Guard.

Violence and civil war replaced elections.

Currently reading: Violence in Republican Rome. An expensive book unfortunately, but one which explores an area I am fascinated with; the use of violence in public and private life and as an expression of politics and law. Andrew Lintott writes:

Roman tradition tolerated and even encouraged violence in political and private disputes, and both the law and constitutional precedent recognized the use of force by private individuals.

Often Rome is seen within the the liberal tradition; but this use of violence, rather than debate, deliberation, consensus and the seeking of the point of the least dissatisfaction places it wholly outside of modern political rationality.

The most famous tyrannicide in history is the killing of Caesar in the Senate at the hands of Marcus Brutus. Basically it is the killing of a tyrant in the name of the public good and to restore the democratic (or oligarchic) mores of state.

Most legal systems are premised upon the state having a monopoly on violence. Where any private violence is subject to the review of the state to determine its validity. Tyrannicide is outside of that system. It is based on the assumption that the state is no longer valid, usurped by the tyrant, and consequently tyrannicide is legitimate private violence against the tyrant. Lintott writes of Cicero's view on tyrannicide:

For us the disquieting features of this view are first the idea that a tyrant has no rights at all and no claim to justice, and secondly the extension of the principle to quasi-tyrants.

The quasi-tyrant in Cicero's view was a demagogue who had a 'lasting hold on the populace' even if the demagogue had not used violence or force. The other side of Cicero's view of quasi-tyranny was the use of limited violence outside of the state legal system in order to save and restore the state - in other words a classic state of exception.

There were legal positions in the Roman state, such as the Dictator, which existed in states of exception, so such principles were not unknown to the Roman system. It is unsurprising as Roman magistracy was a state based form of pater-familias and absolute power. Lintott continues:

Tyrannicide is therefore a permissible form of private violence (like that employed in defense of a tribune or against a thief) whose justification lies not only in political philosophy but in a specific legal provisio.

Cicero's view of tyrannicide is expansive and enables the defense of the senatorial and equestrian order's power from the plebians and their demagogic populaire leaders. Consequently private violence can be used to maintain the status quo of state; whether in the death of a dictator-for-life tyrant like Caesar or populists like the Gracchi.

This brings the use of private violence into the domain of politics. And like the state of exception becomes the line where politics and the judicial intersect. The use of violence for justice and redress becomes purely political.

Central to liberalism is that politics - the bartering of power in a public and social situation - is conducted through the mechanisms of debate, deliberation, consensus and the reaching of a point of least dissatisfaction between parties, faction and special interest groups such as minorities. Liberalism replaces violence through this process. Lintott compares the meeting of violence, cohesion and legislation in Athens to Rome:

Cohen [writing on Athens] argues that social cohesion was (and is) far more a product of the regulation and modification of conflicts between individuals and families through shared assumptions and understandings than the effects of rules imposed from above: the law at Athens merely provided new channels in which feuds, rivalries, and tensions played themselves out.

This is an important corrective to the traditional positive approach to law which tends to be held by lawyers but is itself no more than a half-truth.

The cohesion of Athenian democratic society was maintained to a great extent by Athenian social attitudes and political ideology, whereas there was a major division in Roman society even in the politically stable period of the middle republic.

Athenian and Roman constitutional practice grew in response to political crisis. Athens became a democracy at the hands of crisis, and increasingly democratic forms of Roman governance were also in response to constitutional failure - a good example being the plebians quieted with the creation of the constitutional position of Tribune.

Westminster has a muddly constitutional practice as well which only changes after each new crisis and in some cases does not learn at all from it. Australia has had numerous crisis with our form of Westminster including two over-throws of democratically elected executives, in the 30s and 70s, yet little in modification to solve those issues.

Canada is now having their own version of the same crisis where a weak Governor-General has allowed governance to hibernate - or prorogue - while the current minority government tries to shore up its control of the legislative. Something that will most likely end up in failure.

Westminster at the national, NSW and Qld level has most likely survived as the crisis was amongst political elites, and the majority was only affected as much as having to go to the ballot boxes to determine which elites get to win for the next three years.

Rome started as a monarchy and grew different constitutional elements over the centuries that it operated as a republic. When it became an Empire under Augustus Caesar the republican elements were co-opted into the politics and constitutional machinery of an emperor.

The constitution of the middle and late republic contained the permanent body of the Senate which was oligarchic. The elected elements were the consuls and the tribunes. The consuls were more like generals even though they had the absolute power of imperium. The Tribunes represented the plebians and could veto Consul's and Senatorial legislation.

There were numerous other constitutional positions and magistracies; but Rome did not contain anything that we would call a police force or sheriffs. As a consequence there was a great deal of tradition surrounding dealing with theives and other forms of property and personal violence which involved the gathering of neighborhood help, that served as a local vigilante group or gang. This is a greatly different society to the liberal democracies we know today with their ample public services.

Even so the Roman Republic managed to sustain itself in a relatively similar manner, with and without external pressures, until violence rose to the surface almost continually in the last century of the republic. Andrew Lintott writes:

The constitution that evolved [in Rome] was more of a truce position than a peace settlement. It formalized the conflict between the oligarchic element and the plebs. Afterwards in the period of concordia the tribunes from time to time tested the authority of the consuls and their own powers. In a conflict the Senate was usually accepted as the referee, but otherwise the rules of the game made a decision impossible, and the end was resignation or stalemate.

Lintott identifies the constitution as being unable to produce a form of power sharing that was suitable enough to dampen political violence and keep it from spilling over into civil war. Gangs were a constant presence in the last century and were founded in the use of force for private violence. Once gang warfare grew above a certain level it required military intervention or violence on the scale of military force to be put down. Ultimately that became part of politics and civil war was how power was bartered between competing factions.

From 133 BC there was a progressive loss of scruple and restraint, as violence bred violence, but there had been an inherent weakness in Roman society, which was vulnerable to circumstance.

The constitution was unequal to controlling violence.

At the same time its [violence's] use was encouraged both by tradition and principle, and politicians applied these without foreseeing the consequences.

The end result was Augustus Caesar establishing himself as emperor through Tribunacion powers. The constitution moved in such a form that violence was dampened by the absolute political power of Augustus. However, it was no longer of the republican form that Cicero saw as the perfect government, and Rome survived centuries more as an Empire.

Andrew Lintott explores the constitutional methods open to the Roman system where laws passed by violence could be over-turned by Senatorial veto. For instance if the Assemblies were under the sway of violence they would be unable to replace, modify or pass new laws to remove the bad laws that had been made under coercion.

Prior to the late republic, laws were not passed under the Roman Constitution that were repugnant to the Senate (the optimates). It was only in the later republic when the constitutional mechanisms, such as Tribunes, were in place to challenge the constitutional primacy of the Senate. Lintott writes:

Annulment was essentially a political weapon of the optimates reviving as it did the patrum auctoritas in a new form.

He argues that this was intended to be used as a mechanism to stave off the passing of laws by violence because there was no statute offense against violence itself being used in this manner - a failing of the Roman Constitution in Lintott's view. The opening it allowed however, was political, and for the Senate as a social class, to use against plebian policies and demogogic leaders. Lintott continues:

At times when the authority of the Senate was strong this did not matter: at other times the evasion by the optimates of a direct challenge to violent legislation allowed an escape route to unscrupulous politicians and, indeed, was an encouragement to violence.

Central to Lintott's thesis on the Roman Constitution and the increasing violence in the late republic is that violence was not only tolerated as part of the constitutional system it was seen as a legitimate mechanism for securing redress; privately, publicly and politically.

Lintott argues that the solution to violence in 52 BC left control of the city in one group under Pompeius and consequently, any dispute between Pompeius, Caesar and the optimates (Senate) without constitutional compromise would elevate the violence immediately into civil war. The solution of 52 BC where constitutional mos had been stretched to achieve a political solution to demagoguery and urban violence. Lintott writes:

Though urban violence had been suppressed, the feelings associated with it lived on. The optimates, finding that they could not use legal means to control a man they considered the enemy of the republic, decided automatically for force. They could not see clearly enough the dangers of a new civil war, which, though it was not founded on the personally bitterness that characterized the previous one, was to spell the end of republican government.

For Caesar the concept of the republic involved his right to maintain his dignitas, especially his position of patronage over his troops, by any constitutional means possible. When these were of no avail, violence had always been the way for a Roman to right undeserved wrongs.

As Lintott notes, if Caesar had returned as a private citizen he most likely would have faced a political prosecution which Caesar feared would take the form of a biased court and his being surrounded by armed men.