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 It is based on the assumption that the state is no longer valid, usurped by the tyrant, and consequently tyrannicide is legitimate private violence against the tyrant.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.