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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
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This book is dedicated to Nicholas Sellers on the
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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 Plato
1
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 Cicero
5
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
Introduction 5
post-war liberal interest-group pluralism as a suitable basis for any just
legal order.
Liberal critics of republicanism question whether the balanced institu-
tions of a republican legal community can solve the problems of pluralism
without an intolerable threat to personal autonomy. For many, the very
idea of a shared common good seems to shield some hidden tendency
towards intolerance and oppression. Republicanism implies the possibility
of collective objectivity, and seems to some critics to be alarmingly anti-

democratic in its reliance on the senate and judiciary. Republican checks
and balances intentionally frustrate the immediate will of the people, to
serve their common good. If private desires and personal interests were all
there is to be valued, then the public-spirited self-denial of republican virtue
would be pointlessly self-defeating.
Liberal fears of republicanism (and democracy) reflect liberal fears of
government that go back at least as far as the English Revolution of 1688.
When they are not virtuous, the people may be dangerous, and even Cicero
feared the tyranny of the mob more than the tyranny of kings. Sometimes
in the wake of civil wars, monarchs promise safe and stable government.
Rome settled for Augustus Caesar, England for Charles II, and France for
Napoléon Bonaparte. In each case subjects received guarantees from their
sovereign, which protected the private sphere while ceding public power to
the state. Benjamin Constant frankly distinguished the (republican) “liberty
of the ancients”, in his discourse
De la liberté des anciens comparée á celle des
modernes
(1819), “for which we are no longer fit”, from the (liberal) “liberty
of the moderns”, liberty to pursue ones own private pleasures in peace.
Modern liberalism emerged from the older republican tradition, when fully
republican law and government no longer seemed attainable.
Republican legal theory is deeply imbedded in modern constitutional and
legal thought through the influence of the French and American revolu-
tions, and the institutions that they introduced and inspired. The Western
democracies’ eventual success demonstrates that popular sovereignty may
seek liberty and the common good through the rule of law, checks and
balances, a deliberative senate, and a stable judiciary, without collapsing
into anarchy and corruption. The major modern innovation in republican
government has been to introduce the principle of representation into the
popular assembly, but other techniques have often been proposed and

implemented, in pursuit of the common good. Republican legal theory has
triumphed so completely in the West that its origins are largely forgotten.
Most modern legal discourse is in some sense “republican”, because republican
theory is so deeply entrenched in the universal institutions of contemporary
constitutional government. Almost every generation experiences some
return to republican first principles, and initiates its own new attempts to
build civic community and a just legal order out of the ruins of one of the
world’s oldest and most persistent legal and political philosophies.
6
2
The Origins of Republican Legal
Theory
The first self-consciously “republican” ideology originated in the senatorial
opposition to Gaius Julius Caesar, and implies a procedural commitment to
certain “republican” political and legal institutions, usually attributed to
Rome’s republican constitution of 509–49
BC
. The basic desiderata of republican
government, as articulated in the republican legal tradition derived from
Rome, secure 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 regulated popular assembly,
constrained by an independent judiciary, and subject to the rule of law.
Some republicans would add representation, the separation of powers, or
equality of material possessions, to protect public liberty (“
libertas
”) and
avoid Rome’s eventual descent into popular tyranny and military despotism.
Republican liberty signifies subjection to the law and to magistrates, acting
for the common good, and never to the private will or domination “

dominatio
”
of any private master.
1
The republic
“
Res publica
” was the Romans’ own term for their state, its public business,
all public property, and the purposes these served. The word notoriously
evades translation, most often appearing in English as “commonwealth”, or
simply (more recently) “republic”. The republican tradition took Rome as its
first inspiration, and specifically Rome’s political structure as it evolved after
the fall of the kings (509
BC
), until Caesar’s legions finally established
his principate, and subjugated the senate and the people of Rome. Self-
consciously “republican” political theory began in the years immediately
following Caesar’s victory, in reaction to his political innovations, and in
opposition to his nephew and heir, Gaius Julius Caesar Octavianus (Augustus).
Marcus Tullius Cicero and Titus Livius (Livy) constructed the first and most
influential comprehensively republican ideology in praise of the old institu-
tions, trying to explain how and why the Roman republic had failed. Both
The Origins of Republican Legal Theory 7
agreed that republican institutions collapsed when party conflict upset
traditional checks and balances between the senate, the magistrates, and the
people of Rome.
The Greek scholar Polybius had earlier described Rome’s constitutional
balance in his
Histories
, as it existed in his own time (about 150

BC
).
Polybius’ sixth book suggests that Rome’s unrivaled success depended on its
political mixture of monarchical, aristocratic, and democratic power, in
which the consuls executed the laws and controlled the army, the senate
proposed the laws and controlled the treasury, and the popular assemblies
passed the laws and elected all magistrates. Several other similar provisions
confirmed each branch’s control over the others, so that none could act
alone, but must cooperate to secure the common good, and limit each
other’s discretionary power. Cicero chose the old Roman word “republic” to
translate Plato’s Greek “
politeia
”. In his own dialogue
de re publica
, written
about 54
BC
, Cicero defined the
res publica
as the property of the people or
“
populus
”, by which he meant, not just any collection of humans, but
a large group associated in pursuit of a shared sense of justice and their own
common welfare.
2
This famous and frequently repeated definition preceded
Cicero’s more specific prescriptions for his own ideal republican constitution,
including a balance of power between the people, the magistrates and
senate, to maintain the rule of law, so that no one serves any master but the

common good. This secures liberty, which is not to have a just king or
master, Cicero explained, but to have no master at all.
3
The republican tradition
Cicero, Livy and the memory of Polybius, supplemented by the writings of
G. Sallustius Crispus (“Sallust”), L. Mestrius Plutarchus (“Plutarch”), and
P. Cornelius Tacitus inaugurated a republican tradition of “liberty” that
fortified principled resistance to demagogues, emperors and kings for the
next two thousand years. Niccolò Machiavelli did the most to revive this
republican tradition in Italy, in his
Discorsi sopra la prima deca di Tito Livio
.
The resistance of the Swiss, various Italian cantons, and the United
Provinces of the Netherlands to imperial control added practical models for
republican liberty, as did the constitutional and theoretical writings of
various English authors, in their efforts to restrain or to remove kings during
the Civil War and “Commonwealth”, the Glorious Revolution, and the
extended British controversies over American independence.
British authors such as James Harrington in his
Commonwealth of Oceana
(1656), Algernon Sidney in his
Discourses Concerning Government
(1698),
John Trenchard in
Cato’s Letters
(1720–1723) and Thomas Gordon in his
translations of and
Discourses
on Tacitus (1728–1731) and on Sallust (1749)
provided a modern gloss on the old republican authors for French

and American writers and politicians in the years leading up to American
8 Republican Legal Theory
independence and the French Revolution. The baron de Montesquieu in his
Causes de la grandeur des Romains et de leur décadence
(1734) and
De l’esprit des
lois
(1748), and Jean-Jacques Rousseau, in his work
Contrat Social
(1762), also
adopted republican vocabulary and influenced the subsequent republican
tradition, particularly in France.
The American John Adams in his
Defence of the Constitutions of Government
of the United States of America
(1787–1788), like James Madison and Alexander
Hamilton in their
Federalist
essays (1787–1788) clung much more closely to
the republican tradition in defending the United States constitutions than
any French author of the period. This reflected the actual development of
American institutions and led to a division between subsequent Anglo-
American and French conceptions of republican government. Many French
reformers came to identify republican government with the unicameral and
centralizing violence of their own revolution, despite the French nation’s
return to Rome and to American models during France’s own restored
(Third) Republic.
The French and American revolutions inspired a series of would-be republics
throughout the world, which gained political power, only to lose interest in
their old political philosophy. The decline of classical education obscured

the works of Cicero and Livy for most politicians and philosophers, and
although republican institutions survived, “Republican” parties won elec-
tions, and states used republican iconography; no one paid much attention
to their origins or meaning. To some scholars and politicians republicanism
implied “democracy”, to others “the rule of law”, and to many little more
than the absence of kings, or support for revolution, no matter how it was
realized.
The republican revival
Republican political philosophy remained moribund for most of the twentieth
century, known only to classicists and to a few historians of ideas. Careful
studies by scholars such as Hans Baron,
4
Zera Fink,
5
Caroline Robbins,
6
J.G.A. Pocock,
7
Claude Nicolet,
8
Gordon Wood
9
and Quentin Skinner
10
illuminated various periods of earlier republican enthusiasm, which made
republican models more readily available to scholars and inspired a new
interest in republican legal theory in the period leading up to the bicentennial
celebrations of the French and American Revolutions.
11
The United States Constitution institutionalized republican political

architecture, with its senate, its many references to “liberty” and even a
federal “guarantee” that every state in the Union would always enjoy
“a republican form of government”.
12
This kept republican political principles
permanently available to modern lawyers and judges, for application to
modern cases and controversies. The lawyers’ republican ideology offered
a coherent vocabulary for broader discussions about deliberation and political
The Origins of Republican Legal Theory 9
community already current among political philosophers such as Jürgen
Habermas
13
and Michael Sandel.
14
Older doctrines of liberalism had sought
to protect liberty from politics, by declaring rights against power. Later
liberals, such as John Rawls,
15
found themselves forced back to politics or
“political liberalism” to mediate conflicts of rights, and to construct
common values. Republican doctrine solved the problems of liberalism by
providing a meaning and a rationale for liberty, while offering political
structures to coordinate public reason in pursuit of the common good.
Republican legal theory clarifies the constitution of justice, in pursuit of the
earliest, most useful conception of liberty as “freedom from domination”.
16
Liberty
The republican conception of liberty as non-domination challenges Thomas
Hobbes’ later equation of liberty with license, or the unfettered ability to do
what one wants. Republican liberty follows instead from Cicero’s prescription

for life without a master. Algernon Sidney put it succinctly in a passage of
his
Discourses
, repeated by John Adams and many others, when he said that
liberty consists only in being subject to no man’s will, and nothing denotes
a slave but a dependence upon the will of another.
17
This does not mean the
license to do as one pleases, which leads to conflict and oppression, but
rather (as Sidney explained it) equal subjection to the rule of laws made for
the common good,
18
and secured by “dividing and balancing the powers of
government” so that no one or few or many individuals can subvert the
republican purposes for which all governments exist.
19
George Washington reiterated this fundamental dependence of liberty on
the republican form of government at his inauguration as the first president
of the United States under the new United States Constitution, when he
said that the “preservation of the sacred fire of liberty, and the destiny of
the republican model of government, are justly considered as
deeply
,
perhaps as
finally
, staked on the experiment entrusted to the hands of the
American people”.
20
Livy too had insisted (and Sidney repeated) that Roman
liberty began with the inauguration of republican government by Lucius

Brutus in 509
BC
.
21
The English “Cato” concluded that the same principles
“of nature and reason that supported liberty at Rome, must support it here
and everywhere”, so that there should never be too much power in any-
one’s hands, or “power without a balance”.
22
These examples, and many others, illustrate the extent to which the
republican tradition understood “liberty” to require equal citizenship in
a republican state. Trenchard and Gordon, writing as “Cato”, reminded the
English people that “government executed for the good of all” (and with
their consent) “is liberty”,
23
and produces “justice”.
24
Adams clarified this
republican consensus in the first volume of his
Defence of the Constitutions of
Government of the United States of America
when he traced the republican
10 Republican Legal Theory
tradition of liberty through Aristotle, Livy, Harrington, Sidney, and Richard
Price to their common conclusion that liberty requires “equal laws” made by
“common consent” for the “general interest” or “public good” of the people.
25
The common good
The fundamental republican insight that government and laws should serve
the common good did not originate in Rome. Most governments have made

this claim, which Cicero
26
attributed to Plato. Plato had argued in his
Politeia
that rulers should always serve their subjects’ common interest, or
good.
27
Cicero wrote his dialogues
de re publica
and
de legibus
to celebrate
and modernize Plato’s works on the state and the laws,
28
supplanting Plato’s
imaginary constitution with more practical institutions, closely modeled on
the form of government actually established in Rome. But Cicero gave Plato
full credit for the insight that laws should always serve the common welfare
of the state.
29
Plato condemned democracy, oligarchy, and tyranny equally
as partisan rule, maintained by violence, without the consent of the people
as a whole.
30
Cicero praised Aristotle for having been, like himself, a disciple of Plato in
pursuit of the republic.
31
Aristotle followed Plato in believing “justice” to
consist in government for the common good and securing liberty against
the despotism of private interests.

32
Like Plato, Aristotle criticized government
in the factional interests of the one, the few or the many as tyrannical, and
wrong.
33
Better, he suggested, to mix oligarchy, monarchy and democracy
together, as in Sparta, to prevent any one faction from usurping the power
of the state.
34
So Aristotle endorsed the sovereignty of the laws,
35
to secure
justice, “which means the common good of the community as a whole”.
36
The arguments of Aristotle and Plato illustrate the extent to which liberty
as government for the common good, secured by checks and balances and
laws, was already a philosophical commonplace before Polybius and Cicero
first praised the Roman republic. When Cicero defined the purpose of the
state as being to create harmony from the disparate interests of all members
of society,
37
he simply repeated Aristotle’s earlier commitment to help all
social groups live happy and worthwhile lives.
38
What distinguishes fully
republican doctrine from its Academic and Peripatetic antecedents is not
commitment to the common good (which they shared) but rather a more
specific constitutional prescription for securing the republic, through popular
sovereignty, elected executives, and an independent senate, deliberating for
the public good.

Popular sovereignty
Aristotle himself had conceded that just as a larger body of water will be less
easily polluted, so many men acting together will usually be more honest
The Origins of Republican Legal Theory 11
than a few.
39
Cicero went further to insist, with all Romans of every party in
his day, on the ultimate
imperium populi
or sovereign power of the people.
Cicero frequently repeated in his speeches to the senate and the people of
Rome that without popular sovereignty, there will be no republic.
40
He
denied the possibility of liberty, unless the people hold supreme power.
41
Cicero believed that a free people will elect men of virtue (“
virtus
”), to pro-
tect the common welfare of the state.
42
He did not propose that the people
should execute the laws themselves,
43
but rather that they should defer to
the authority of senators and magistrates, whom they themselves have
selected.
44
Machiavelli credited Cicero with the insight that although the people
may be ignorant, they are capable of grasping truth, when good men place

the truth before them.
45
He thought that this makes the people proper
guardians of liberty. Because the people have less opportunity to usurp
dominion, they will strive to free themselves, and prevent domination by
others.
46
Machiavelli adopted Cicero’s maxim that the voice of the people
(
vox populi
) is often the voice of the God (
vox dei
).
47
He argued that so long
as they are guided and regulated by law,
48
the people will choose better
magistrates than princes would.
49
Left without regulation, the people would
fall into confusion, and welcome tyrants to control their warring private
interests.
50
The purpose of republican popular sovereignty is not that the people
should govern every day, but rather, as Benjamin Rush suggested in advo-
cating American “republican” institutions, that the people should select
their own rulers. The people must exercise their power on election days, and
then defer to the magistrates that they themselves have chosen.
51

James
Harrington explained the different roles of the senate, the people, and the
magistrates, through which the senators debate, the people approve, and
the magistrates execute the laws.
52
The people have the authority, as ultimate
“guards of liberty”, to approve all legislation,
53
but only after proposal and
previous deliberation by the senate.
54
The senate
The Romans always credited their victories and all public achievements
jointly to the senate and the people of Rome (“
senatus populusque
Romanus
”), so long as their republic survived. This Roman bicameralism
remained a central requirement of republican government in Italy and after-
wards, when republicans continued to recognize the concurrent necessity
both of a “senate” and of a regulated popular assembly and criticized the
unicameral “democracy” of some Greek city-states. Cicero blamed the
intemperance of the Greek assemblies for their political troubles.
55
He qualified
the sovereignty of the people with the senate’s moral authority (
auctoritas
)
in pursuit of the common good.
56
Harrington quoted Cicero’s oration

12 Republican Legal Theory
against Flaccus to show that democracy had ruined Greece.
57
He preferred
the
senatus populusque Romanus
,
58
because it reflected a salutary balance
between the deliberative senate and decisive people of Rome. The senate
would “divide” (or propose) laws, Harrington explained, and the people
would choose (or ratify) them, solving the “whole mystery of the common-
wealth”, like “two silly girls” dividing a cake.
59
Sidney also embraced the formula “
senatus censuit, populus jussit
” through
which the senate proposed and the people ratified the laws.
60
Unicameral
democracy might be suitable, he explained, in tiny towns like San Marino,
“where a hundred clowns govern a barbarous rock”,
61
but the best governments
will always be “mixed, regulated by law, and directed to the public good”.
62
Montesquieu wanted a senate too, exemplifying public virtue, and elected for
life, as in Rome.
63
States are ruined, he explained, when people strip the senate

of its powers.
64
Even Rousseau, who supposed that the senate would be an
executive body of elected aristocrats,
65
added that nothing should be done
without the concurrence of both the legislative and the executive powers.
66
Rousseau endorsed Rome’s actual constitution, in which the people always
ratified the laws,
67
but adamantly opposed any exercise of executive power by
the people themselves, because they lack the senate’s wisdom and restraint.
68
Rousseau’s change in emphasis introduced a diversion into republican
thought that profoundly influenced later republican ideas in France. While
Rousseau endorsed the sovereignty of the people (like all republicans) and
wanted them guided to secure the common good,
69
he never specified the
constitutional provisions for doing so, and explicitly opposed mixed powers
in the legislature.
70
Rousseau insisted that the people should always vote
directly and collectively to approve all legislation, without representation,
in person.
71
He spoke much less of the senate than of the “general will”, and
minimized the senators’ direct role in guiding the votes of the people.
72

Rousseau’s Roman populism seemed to imply, or impliedly to tolerate,
a legislative unicameralism very much at odds with the older republican
tradition.
73
John Adams wrote his defense of the American constitutions
specifically to counteract this attitude as it developed in France. Anne Robert
Jacques Turgot and Gabriel Bonnot de Mably had endorsed unicameral
legislatures, to express better the will of the “nation”.
74
Adams insisted that
only “the checks and balances of republican governments” could control the
ministers of state,
75
through “a governor, a senate, and a house of representa-
tives”.
76
He repeated Cicero’s and Harrington’s observation that the Greeks
knew no balance, and suffered for it.
77
Adams insisted on a republican senate
“consisting of all that is most noble, wealthy, and able in the nation”.
78
Representation
Rousseau made less of the senate than most republican authors, and seemed
to denigrate its legislative power, while clinging to other old Roman republican
The Origins of Republican Legal Theory 13
practices, by rejecting representation in the popular assembly.
79
The Roman
comitia

had controlled and manipulated popular suffrage in many ways, as
Rousseau agreed that they should,
80
but the people always acted directly.
Every citizen had the right to vote, and no laws passed without public
approval. Rousseau denounced any statute not approved by the people as
void and not really a “law” at all. Like Rush he knew that those who elect
representatives are only really “sovereign” on election days. Rousseau
denounced representation as anti-republican, the product of weakness, and
sloth.
81
Anglo-American republicans admitted the novelty of representation,
which they advanced to purify the voice of the people, and preserve republican
deliberation in large and populous states. Adams endorsed representation,
the separation of powers, and a legislative veto as modern innovations that
perfect republican government;
82
Hamilton added the life tenure of judges
to representation and the separation of powers as necessary improvements
on old republican institutions;
83
and James Madison repeated their arguments
to assert that
only
representative governments can be true republics, by
selecting more virtuous and deliberate legislators, in place of the turbulent
mob.
84
“The true distinction” Madison believed, between ancient and
modern republics, is “

the total exclusion of the people in their collective capacity
,
from any share in the
latter
” and not (despite Rousseau) “
in the total exclu-
sion of the representatives of the people from the administration of the former
”.
85
Rome had elected representative tribunes, but the United States should
never allow direct democracy of any kind.
Representation allowed republics to serve large and prosperous states,
where direct democracy would be impracticable. Madison hoped that size
would overcome local interests, which otherwise might have dominated the
state.
86
Adams noted that even Turgot’s unicameral “nation” would have to
be representative, in the United States or France, to speak for such large
populations.
87
Harrington had endorsed representation for his republican
“Oceana”, because the “whole nation” would be “too unwieldy” to be
assembled.
88
Sidney accepted representation to express the will of the
people,
89
and Montesquieu preferred it, because the people themselves are
not suited to discuss the public business, “which is one of the great draw-
backs of democracy”. Like Madison, Montesquieu thought it safest to shut

the people out of government, except to choose their representatives, on
election day.
90
The rule of law
Rousseau’s solitary opposition to representation masked his fundamental
agreement with other republican authors that republics require the rule of
law, made for the common good, by a regulated popular assembly.
91
John
Adams repeated this republican commitment to law, citing passages from
14 Republican Legal Theory
Sidney, Harrington, Aristotle, and Livy, who all demanded an “
imperia
legum
” or “empire of laws and not of men”.
92
Adams and Harrington both
quoted the observations of Donato Gianotti who divided the whole history
of government into two periods. The first “ending with the liberty of Rome”
was government by law (“
de jure
”), founded on the common good. The
second “beginning with the arms of Caesar” was government by some few
men in pursuit of their private interests (“
de facto
”), an “empire of men and
not of laws”.
93
The republican conception of law implies just laws, made by popular
sovereignty, for the common good of the people. Cicero insisted that such

laws must serve the public welfare “
populi utilitas
” not the public will “
populi
voluntas
”,
94
because “the votes of fools” cannot alter the natural laws of
justice.
95
The purpose of republican government is to realize the best
“combination of powers in society”, as Adams put it, or whatever “form of
government will compel the formation of good and equal laws, an impartial
execution, and faithful interpretation of them, so that the citizens may
constantly enjoy the benefit of them, and be sure of their continuance”.
96
Adams presented this republican formula to the convention that drafted
the United States Constitution. Roman history shows (he suggested) that
“there can be no government of laws without a balance” in the magistrates,
“there can be no balance without three orders” in the legislature, and that
even three orders can never balance each other, unless they are fully separate
and independent.
97
Harrington identified legislation as the “reason” and
“virtue” of the commonwealth, whose liberty is the “empire of her laws”,
98
Sidney died for his belief that there can be no liberty, where the king’s will is
law,
99
and Adams concluded that the essence of republican government

must be the guarantee that “all men, rich and poor, magistrates and
subjects, officers and people, masters and servants, the first citizen and the
last, are equally subject to the laws”.
100
Republican legal theory
Republican philosophy since Cicero has sought to construct a harmony of
interests and common sense of justice among citizens through the “empire
of laws and not of men”. Republican laws draw the line between liberty and
license, in pursuit of the common good. Republican theory seeks to find and
to establish good laws, by discovering the principles and basic structure that
serve the
res publica
best. So although republican philosophy begins, as
Thomas Paine put it, by making the “
res publica
, the public affairs, or the
public good” the object of all government, and “republican government is
no other than government established and conducted for the interest of the
public”,
101
the idea of the “republic” entails a constellation of political struc-
tures to secure republican legislation, embedded in two thousand years of
republican tradition, derived from Rome.