Rome did not have a written constitution as the United States or Australia do. It did not even appear to have a Westminster style one such as Britain's or Tasmania's which exists across multiple non-contiguous acts. It seems to be purely a mix of convention and tradition. Which was probably why it was easy for Sulla, Caesar and Augustus to subvert it.

We mainly know the Senate as the Roman political body, but prior to 510BC Rome was ruled by a monarch until (King) Tarquin was run out of town. This led to a fear of unitary or supreme power and Roman political institutions established themselves to stop such an outcome. What replaced it was effectively a Senate led oligarchy. For most of Rome's early history approximately twenty families dominated the Senate and it was rare that outsiders were able to establish themselves sufficiently to become Senators - Cicero was one of those rarities.

Since Montesquieu it has been firmly established that the three branches of government are executive, legislative and judicial. The Roman system does not really fit into those categories; the Senate being problematic again; but the Roman institutions are near enough that modern Australians would recognize executive, legislative and judicial functions in the Roman political bodies.

The main Executive position was the Consul. Rome solved the issue of absolute power and sovereignty in this position by electing two Consuls each term who would alternate month to month. A Consul's term was twelve months and they could not be re-elected Consul after serving in the position.

This pluralistic or power-sharing aspect of Roman politics may have been why would-be emperors such as Caesar, Augustus, Antony, Pompey, Crassus, Lepodus etc were happy dividing the Roman Empire up and ruling it as triumvirates - however transitory the arrangements were; ie Caesar crushed Pompey, and Augustus crushed Antony.

After a Consul's term was up they became a Proconsul and were sent off to govern a province such as Spain, Africa, Macedonia, Cisalpine Gaul etc. Anywhere that was far away from Rome. For the Proconsuls there was the added advantage of being able to extort the provinces for money as Roman elections were usually quite expensive - what with all the bribing and whatnot.

There was no civil service or bureaucracy in Roman times, that was a technology that was invented during English and French dominance in the 1700s as they required organisational technologies to support their highly militaristic and capital intensive war machines; such as a navy and continental army.

Roman politicians carried the burden of the civil service as they would take their own people with them to their appointed position and the cost tended to be defrayed by the wealth that a Roman could make in such a position. There was also no tax department either; especially not in the provinces. Tax collection was sold off, or bidded for. Tax Farmers were a wealthy and politically influential special interest group that rivalled the merchants for the ears of Roman politicians.

The Roman system carried checks and balances everywhere, and achieving the position of Consul required serving in several political positions first. An aspiring Roman public figure had to first serve as a Quaester. These were like provincial tax collectors. Cicero, for instance, served his period as Quaester on Sicily.

After serving as a Quaester the individual was eligible to become an Aedile of which they were only four in Rome. This wasn't absolutely necessary to become a Consul as it was an expensive position to hold. Most of the civic improvements came out of the Aedile's own pocket. Crassus apparently made the comment in his later life that you "Weren't rich unless you could afford to pay an army." Which gives an idea of how oligarchic the Roman system was. Only the Bill Gates, Warren Buffet's etc of Rome could afford politics; George Bush would be too poor to be part of the Roman oligarchy.

The final position before Consulship was as a Praetor. This position held real executive power as they executed the law in provinces and stood as judges. The Roman judicial system is different to our form. For instance all cases, criminal or civil, were brought by individuals against another. Again, there was no civil service, no police force, and no real penitential system. So most decisions were fiscal in nature. Capital punishment was extremely rare even in times of emergency.

The Roman lawyers used to act like TV attorneys. They would be the interviewer, the detective, the collector of evidence and then would represent their client in the Forum, defending their case with a speech full of rhetoric, innuendo and facts. This would be done infront of a public audience, who would react to the speech with cheers and boos. It is hard to believe that mob justice didn't have an influence on Roman law cases in such an environment.

The Senate was an unusual body. It wasn't really legislative, as it didn't make laws, however it controlled money supply and made policy. It also reviewed any legislation that came from the Assemblies, effectively giving it the yay or nay. Probably the closest analogy to their function in a modern democracy is the committee system in the Australia. But even that is a bad analogy.

Senators were appointed for life, and because of the high turnover of Consuls and their power-sharing requirements, the real power of Rome was in the Senate. It dominated what an executive could do, what was political achievable in the system, and how policy was conducted. It was a permanent institution, consequently it was very conservative in its political operation.

The Consuls and Tribunes were far more temporary institutions and it is a not a surprise that most radicalism came from those bodies such as Sulla, Caesar and Augustus. Than again Caesar during his period as dictator/tyrant managed to appoint so many Senators that it became a body pliant to his executive will.

The other positions in the Roman executive were the Censors and the Tribunes. The Censors were like public servants, they conducted administrative functions such as keeping the census up to date, enrolling citizens, purging the Senate of deadwood (!). There were only two Censors and the individual had to have been a Consul to become one.

The final position is the Tribune. This position came into being when the people (plebs) removed their labor from Rome in 493BC and basically conducted a strike over debt relief by camping en-masse on a nearby hill. To placate the plebs and have them return to Rome a voice of the people, the Tribune, was established. The Tribunes could propose legislation and could convene a Senate meeting to respond to the concerns of the people, but their main power was the veto.

The veto was the ultimate Roman power of check and balance. Consuls could veto, Praetors could veto and Tribunes could veto. The veto was final too, and only required one Consul, Praetor or Tribune to shoot down a proposal. It seems the idea was that it covered an executive veto, a kind-of judicial veto and a popular veto to place a check on absolute power.

One of the criticisms of the Roman system was that this overlapping check and balance created stasis in the system such that good governance could not occur; and consequently a unitary executive was required to come in and plow through these obstructions to government. When Caesar established himself as dictator he basically did an end-run around these checks and balances, however he made the other positions weak or pliant to his executive will. Augustus did similar. So this is not necessarily a good argument.

There is an argument that all the overlapping made the constitution and conventions difficult to change. Which was an issue successive Roman reformers discovered. The loophole in the Roman constitution was the position of dictator, and this is what reformers such as Sulla, Caesar and Augustus used to get around the Senate. The Dictator was a formal position, established through law, where a Consul had supreme power for six months.

This law was enacted through the Final Act which the Senate would vote into being. This would establish tumultus where civil law falls down and laws becomes the arbitrary whim of the Dictator. This is where the state of emergency and state of exception, as well as Agamben's work on homo sacer come from.

Roman politics were militaristic. Consuls and Senators were expected to be generals as much as they were required to be politicians. A quick method for an aspiring Roman politician to become a public figure was to be a successful general. For instance Pompey rose to public prominence through raising an army illegally and leading it to success during a civil war. He was twenty-three when he did that.

There were two legislative bodies in the Roman system during Cicero's time, or its most powerful age. There was the Centuriate Assembly which was a military body, and the General Assembly which was tribally based and called comitia tributa in Latin. The General Assembly approved bills, but it didn't debate them. It could also declare war. The General Assembly was territorially based rather than the oligarchic nature of the Senate which only included the wealthy families. But all democracy was constrained in Rome by transport and communications.

Enfranchisement in Rome was for male citizens and elections were held in Rome, so only those that were within travel distance of Rome could vote. Given the size of the Roman Empire, and the lack of a representative system of government, this meant that citizens in Rome wielded a great deal of power over the politics of the Empire.

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Hadrian is best known in Australia through Hadrian's wall in England which separated the Romans from the Celts of Scotland. Publius Aelius Hadrianus was the emperor of Rome between 117 and 138 AD. The emperors had been constantly changing the unwritten Roman Constitution in such a way to increase their power; by 138 AD there was no doubt that the emperor was sovereign.

The democratic component of the Roman Constitution had been in decay for quite a while. Apparently by the end of the first century AD, the assemblies were no longer being convened in order to pass law. Senatorial decrees were filling that function, even though the Roman Constitution had the Senate as a customary body who had no statutorial power.

It seems by Hadrianic times, the Senatorial decrees had the force of law. Colin Wells' writes:

... but some modern scholars credit him [Hadrian] with the initiative in giving senatorial decrees force of law. The first such decree which we know to have directly altered the civil law is in fact Hadrianic, but there may have been earlier ones, and the distinction is perhaps important only to the specialist in legal history.

The emperor rather than a vehicle for policy, and having the other components of the Roman Constitution complete the legal basis for those policies, was now undoubtedly sovereign. Hadrian's edicts and enactments had the full force of law as well.

In the Middle Republic the Roman Constitution was richer in its magistracy and assemblic bodies. There were the Consuls who acted as military and executive power, the oligarchic body of the Senate, the three assemblies, and the Tribunes who represented popular will through enacting law and the veto.

The magistracies were elected and the democratic bodies were composed of tribal, militaristic and popular forms.

With Hadrian's reign, the assemblies are no longer convened, he was appointed through dynastic means, and he held Tribune power for life. The Consuls still exist, but the legislative power is now in the Senate, an appointed body who has tenure for life unless removed by a Censor - a position which the emperors had also adopted.

This is a big change in where the sovereignty lies in the Constitution over the space of a century. Cicero would still recognise the structures, but would be aghast at where the real power in the constitution now was.

The Early Roman Republic, while adopting the forms that were present in Regal Rome, appeared to have a genuine fear of tyranny. Vetoes were absolute, and only was was required to scuttle any legislation.

The Roman Constitution was unwritten, and did change, most often through emergency. For instance the position of Tribune was established in response to a civil emergency.

This is the weakness in the unwritten constitution; emergencies tend to have a negative effect, and in the case of the late republic, the body the constitution relied on to enforce and remember custom, were wiped out in the civil emergencies and wars of the Caesars.

Tacitus commented in The Histories that by Nero's time, there was no-one left in the Senate who knew what a republic was like.

Of the twenty-six great patrician genus or clans that dominated the Senate when Augustus ascended to imperatur, only six of them remained with Senate appointments in Hadrian's reign.

The Senate had served as an genus based oligarchic memory of Roman constitutional custom and convention. It was a pretty closed shop, Cicero, as a 'new man' was an exception even in the Late Republic.

Between the proscriptions and series of Civil Wars that constitutional memory was lost, the desire for civil order at the end of civil emergency meant that the constitution expanded again, this time with the tribunicia potestus or tribune for life. This was to become the basis of an emperor's executive, legislative and constitutional power.

The noble description of the killing of Julius Caesar in the Senate is that his claiming dictator for life was an affront to the custom and convention of the Roman Constitution. Previously dictators were temporary positions of emergency, lasting no more than six months.

A less noble reading of the murder of Caesar is that his dictator potestus or dictator for life was a direct threat to the executive, judicial and policy making power of the Senate.

This was true, Augustus found a different means to become the dominant political power - imperium maius. By Hadrian's time as emperor the assemblies were not used, Tribunes were not elected, and the Consuls were not powerful outside of military command.

In fact, the pro-consuls often had more power in the Roman Empire as the legions in the provinces could lead to them becoming the next emperor. A-la Vespasian.

x-posted

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.