ancient Rome

Auftragstaktik: Decentralization in military command

Kevin Kallmes Economics, History, Liberty , , , , , , , , , ,

Many 20th century theorists who advocated central planning and control (from Gaetano Mosca to Carl Landauer, and hearkening back to Plato’s Republic) drew a direct analogy between economic control and military command, envisioning a perfectly functioning state in which the citizens mimic the hard work and obedience of soldiers. This analogy did not remain theoretical: the regimes of Mussolini, Hitler, and Lenin all attempted to model economies along military principles. [Note: this is related to William James’ persuasion tactic of “The Moral Equivalent of War” that many leaders have since used to garner public support for their use of government intervention in economic crises from Great Depression to the energy crisis to the 2012 State of the Union, though one matches the organizing methods of war to central planning and the other matches the moral commitment of war to intervention, but I digress.] The underlying argument of the “central economic planning along military principles” was that the actions of citizens would be more efficient and harmonious under direction of a scientific, educated hierarchy with highly centralized decision-making than if they were allowed to do whatever they wanted. Wouldn’t an army, if it did not have rigid hierarchies, discipline, and central decision-making, these theorists argued, completely fall apart and be unable to function coherently? Do we want our economy to be the peacetime equivalent of an undisciplined throng (I’m looking at you, Zulus at Rorke’s Drift) while our enemies gain organizational superiority (the Brits had at Rorke’s Drift)? While economists would probably point out the many problems with the analogy (different sets of goals of the two systems, the principled benefits of individual liberty, etc.), I would like to put these valid concerns aside for a moment and take the question at face value. Do military principles support the idea that individual decision-making is inferior to central control? Historical evidence from Alexander the Great to the US Marine Corps suggests a major counter to this assertion, in the form of Auftragstaktik.

Auftragstaktik

Auftragstaktik was developed as a military doctrine by the Prussians following their losses to Napoleon, when they realized they needed a systematic way to overcome brilliant commanders. The idea that developed, the brainchild of Helmuth von Moltke, was that the traditional use of strict military hierarchy and central strategic control may not be as effective as giving only the general mission-based, strategic goals that truly necessitated central involvement to well-trained officers who were operating on the front, who would then have the flexibility and independence to make tactical decisions without consulting central commanders (or paperwork). Auftragstaktik largely lay dormant during World War I, but literally burst onto the scene as the method of command that allowed (along with the integration of infantry with tanks and other military technology) the swift success of the German blitzkrieg in World War II. This showed a stark difference in outcome between German and Allied command strategies, with the French expecting a defensive war and the Brits adhering faithfully and destructively to the centralized model. The Americans, when they saw that most bold tactical maneuvers happened without or even against orders, and that the commanders other than Patton generally met with slow progress, adopted the Auftragstaktik model. [Notably, this also allowed the Germans greater adaptiveness and ability when their generals died–should I make a bad analogy to Schumpeter’s creative destruction?] These methods may not even seem foreign to modern soldiers or veterans, as it is still actively promoted by the US Marine Corps.

All of this is well known to modern military historians and leaders: John Nelson makes an excellent case for its ongoing utility, and the excellent suggestion has also been made that its principles of decentralization, adaptability, independence, and lack of paperwork would probably be useful in reforming non-military bureaucracy. It has already been used and advocated in business, and its allowance for creativity, innovation, and reactiveness to ongoing complications gives new companies an advantage over ossified and bureaucratic ones (I am reminded of the last chapter of Parkinson’s Law, which roughly states that once an organization has purpose-built rather than adapted buildings it has become useless). However, I want to throw in my two cents by examining pre-Prussian applications of Auftragstaktik, in part to show that the advantages of decentralization are not limited to certain contexts, and in part because they give valuable insight into the impact of social structures on military ability and vice versa.

Historical Examples

Alexander the Great: Alexander was not just given exemplary training by his father, he also inherited an impressive military machine. The Macedonians had been honed by the conquest of neighboring Illyria, Thrace, and Paeonia, and the addition of Thessalian cavalry and Greek allies in the Sacred Wars. However, as a UNC ancient historian found, the most notable innovations of the Macedonians were their new siege technologies (which allowed a swifter war–one could say, a blitzkrieg–compared to earlier invasions of Persia) and their officer corps. This officer corps, made up of the king’s “companions,” was well trained in combined-arms hoplite and cavalry maneuvers, and during multiple portions of his campaign (especially in Anatolia and Bactria) operated as leaders of independent units that could cover a great deal more territory than one army. In set battles, the Macedonians showed a high degree of maneuverability, with oblique advances, effective use of reserves, and well-timed cavalry strikes into gaps in enemy formations, all of which depended on the delegation of tactical decision-making. This contrasted with the Persians, who followed standards into battle without organized ranks and files, and the Greek hoplites, whose phalanx depended mostly on cohesion and group action and therefore lacked flexibility. [Also, fun fact, the Macedonians had the only army in recorded history in which bodies of troops were identified systematically by the name of their leader. This promoted camaraderie and likely indicates that, long-term, the soldiers became used to the tactical independence and decision-making of that individual. Imagine dozens of Rogers’ Rangers.]

The Roman legion: As with any great empire, the Macedonians spread through their military innovations, but then ossified in technique over the next 150 years. When the Romans first faced a major Hellenistic general, Pyrrhus, they had already developed the principles of the system that would defeat the Macedonian army: the legion. In the early Roman legion, two centuries were combined into a maniple, and maniples were grouped into cohorts, allowing for detachment and independent command of differing group sizes. Crucially, centurions maintained discipline and the flexible but coordinated Roman formations, and military tribunes were given tactical control of groups both during and between battles. The flexibility of the Roman maniples was shown at the Battle of Cynoscephalae, in which the Macedonian phalanx–which had frontal superiority through its use of the sarissa and cohesion but little maneuverability–became disorganized on rough ground and was cut to pieces on one flank by the more mobile and individually capable Roman legionaries, This (as well as many battles in the Macedonian and Syrian Wars proved) showed the value of flexibility and individual action in a disciplined force, but where was the Auftragstaktik? At Cynoscephalae, after defeating one flank, the Romans on that flank dispersed to loot the Macedonian camp. In antiquity, this generally resulted in those troops becoming ineffective as a fighting force, and many a battle was lost because of pre-emptive looting. However, in this case, an unnamed tribune–to whom the duty of tactical decisions had been delegated–reorganized these looters and brought them to attack the rear of the other Macedonian flank, which had been winning. This resulted in a crushing victory and contributed to he Roman conquest of Greece. Decentralized control was also a hallmark of Julius Caesar himself, who frequently sent several cohorts on independent campaigns in Gaul under subordinates such as Titus Labienus, allowing him to conquer the much more numerous Gauls through local superiority, lack of Gallic unity, and organization. Also, at the climactic Battle of Alesia, Caesar used small, mobile reserve units with a great deal of tactical independence to hold over 20 km of wooden walls against a huge besieging force.

The Vikings: I do not mean to generalize about Vikings (who could be of many nations–the term just means “raider”) when they do not have a united culture, but in their very diversity of method and origin, they demonstrate the effectiveness of individualism and decentralization. Despite being organized mostly based on ship-crews led by jarls, with central leadership only when won by force or chosen by necessity, Scandinavian longboatmen and warriors exerted their power from Svalbard to Constantinople to Sicily to Iceland and North America from the 8th to 12th centuries. The social organization of Scandinavia may have been the most free (in terms of individual will to do whatever one wants–including, unfortunately, slaughter, but also some surprisingly progressive women’s rights to decisions) in recorded history, and this was on display in the famous invasion of the Great Heathen Army. With as few as 3,500 farmer-raiders and 100 longboats to start, the legendary sons of Ragnar Lothbrok and the Danish invaders, with jarls as the major decision-makers of both strategic and tactical matters for their crews, won a series of impressive battles over 20 years (described in fascinating, if historical-fiction, detail in the wonderful book series and now TV series The Last Kingdom), almost never matching the number of combatants of their opponents, and took over half of England. The terror and military might associated with the Vikings in the memories of Western historians is a product of the completely decentralized, nearly anarchic methods of Scandinavian raiders.

The Mongols: You should be sensing a trend here: cultures that fostered lifelong training and discipline (and expertise in siege engineering, which seems to have correlated with the tactics I describe, as the Macedonians, Romans, and Mongols were each the most advanced siege engineers of their respective eras) tended to have more trust in well-trained subordinates. This brought them great military success and also makes them excellent examples of proto-Auftragstaktik. The Mongols not only had similar mission-oriented commands and tactical independence, but they also had two other aspects of their military that made them highly effective over an enormous territory: their favored style of horse-archer skirmishing gave natural flexibility and their clan organization allowed for many independently-operating forces stretching from Poland to Egypt to Manchuria. The Mongols, like the Romans, demonstrate how a force can have training/discipline without sacrificing the advantages based on tactical independence, and the two should never be mixed up!

The Americans in the French and Indian War and the Revolutionary War: Though this is certainly a more limited example, there were several units that performed far better than others among the Continentals. The aforementioned Rogers’ Rangers operated as a semi-autonomous attachment to regular forces during the French and Indian War, and were known for their mobility, individual experience and ability, and tactical independence in long-range, mission-oriented reconnaissance and ambushes. This use of savvy, experienced woodsman in a semi-autonomous role was so effective that the ranger corps was expanded, and similar tactical independence, decentralized command, and maneuverability were championed by the Green Mountain Boys, the heroes of Ticonderoga. Morgan’s Rifles used similar experience and semi-autonomous flexibility to help win the crucial battles of Saratoga and Cowpens, which allowed the nascent Continental resistance to survive and thrive in the North outside of coastal cities and to capture much of the South, respectively. The forces of Francis Marion also used proto-guerrilla tactics with decentralized command and outperformed the regulars of Horatio Gates. Given the string of unsuccessful set-piece battles fought by General Washington and his more conventional subordinates, the Continentals depended on irregulars and unconventional warfare to survive and gain victories outside of major ports. These victories (especially Saratoga and Cowpens) cut off the British from the interior and forced the British into stationary posts in a few cities–notably Yorktown–where Washington and the French could siege them into submission. This may be comparable to the Spanish and Portuguese in the Peninsular War, but I know less about their organization, so I will leave the connection between Auftragstaktik and early guerrilla warfare to a better informed commenter.

These examples hopefully bolster the empirical support for the idea that military success has often been based, at least in part, on radically decentralizing tactical control, and trusting individual, front-line commanders to make mission-oriented decisions more effectively than a bureaucracy could. There are certainly many more, and feel free to suggest examples in the comments, but these are my favorites and probably the most influential. This evidence should cause a health skepticism toward argument for central control on the basis of the efficiency or effectiveness demonstrated in military central planning. Given the development of new military technologies and methods of campaign (especially guerilla and “lone wolf” attacks, which show a great deal of decentralized decision-making) and the increasing tendency since 2008 to revert toward ideas of central economic planning, we are likely to get a lot of new evidence about both sides of this fascinating analogy.

How to take over Syria, Roman edition

Kevin Kallmes Current Events, History, Liberty, Politics , , , , , , ,

While Trump’s decision to bomb a Syrian airfield in response to use of chemical weapons by the Syrian government got the lion’s share of the press attention about American involvement in Syria (probably because of the contrast with Obama’s preference for diplomacy despite his “red line” threat), the more important strategic operations have not been discussed as fully. Building upon the successful establishment of two airfields last year, the US has expanded or established bases at crucial locations and begun to attack key targets in the northern part of Syria that show an excellent understanding of the topography and logistics of the region. These developments may be the linchpin in choking off traffic and crippling supply and movement of ISIL, and should contribute to the long-term goal of securing Hasakah and Raqqah provinces. What is interesting in all of this, perhaps due to the historical expertise of National Security Adviser H.R. McMaster, is that this logistical focus mimics the attack routes that were vital to invasions of the area from Alexander the Great down to Julian the Apostate.

The Euphrates River as an ancient supply highway

In the era of Alexander the Great, supply and communication were important constraints on military action; the logistics of his march through Syria are extremely well described by Donald Engels. Essentially, because of the lack of water sources in surrounding areas, the rough Taurus Mountains to the north and Arabian Desert to the south, and the provisions and easy transport supplied by it, the Euphrates River was a common “highway” for military movement in antiquity. Controlling and utilizing it was essential to control of the trade and military actions between the Mediterranean coast and Mesopotamia. In his defense against Alexander, Darius III kept his army on the Euphrates, and Alexander surprised him by crossing northern Mesopotamia to follow the Tigris River (near Mosul, which ISIL also recognized as vital) instead. However, almost every major invasion of the area from the west has gone through what is now southeastern Turkey to reach the headwaters of the Euphrates, including those of Trajan, Septimius Severus, and Julian the Apostate. Crassus reaped the gruesome rewards of avoiding the Taurus/Euphrates route.

The Euphrates valley was important not only as a military route, but also as a source of agricultural income and a crucial portion of the early Silk Road. Therefore, the nation that controlled the northern Euphrates valley could finance their military through control of trade and taxation (which Zenobia’s husband used to assert his own quasi-independence from a city that ISIL has ironically destroyed), a fact that has changed only in the economic transition from agricultural production to petroleum extraction. Now, ISIL not only taxes and sells oil to support its endeavors, but it knew from the outset to seize strategic locations on the route and even wanted to use the Euphrates river as its logo!

The mountains north of the Euphrates

The famous historian and general, Xenophon, was part of an army that followed the Euphrates down to a fateful battle at Cunaxa, and his retreat through the Taurus Mountains and ancient Armenia involved encounters with natives who were extremely capable in skirmishing on mountainous terrain. Both Xenophon and Mark Antony learned how difficult this route was, and the successful Kurdish defense of the Sinjar mountains and victories in the mountains of northeastern Syria using small arms and mobile forces while conceding villages is reminiscent of these ancient raiding methods. Though bombing obviously differs in technology and methods from ancient infantry, it also involves avoiding direct battle in order to destroy resources and harass enemy armies in motion, and so the American strategies based on assaults from the Rmeilan and Incirlik airfields over the past year have used the same attrition tactics to wear down ISIL strongholds.

What comes next?

If ancient campaigns can tell us anything, it may be that the US is transitioning from bombing from afar to more direct assaults on the cities, roads, and resources of ISIL along the northern Euphrates. The US still holds bases in northwestern Syria, defending the western flank of Kurdish-controlled territory and providing a buffer to Turkey (which, along with Turkish efforts to stop individual penetration of the border, should mitigate ISIL recruitment and international travel). Now that it has augmented this by creating bases that choke off routes to the headwaters of the Euphrates and allow closer engagement with ISIL since January, the US seems to be poised to contain ISIL attacks with greater alacrity and support Kurdish ground assaults on the ISIL capital of Raqqa. The escalation may be as support in the race to Raqqa and to take advantage of victories in eastern half of the campaign in Mosul, and comparison to the campaigns cited above would indicate that the US and Kurds are moving much slower than ancient campaigns, but using the same routes, attacking targets in similar ways, and with the same respect for topography and logistics.

Rules of Warfare in Pre-Modern Societies

Kevin Kallmes History, Liberty, Politics , , , , , ,

As my first foray into NOL blogging, I figured I would bring up a recent debate I had liberty, war, and peace that lingered in my mind: how have rules of war been maintained throughout history without a central enforcing agency? This question is fundamental to the understanding of the nation-state in IR theory, and is also an astonishing example of spontaneous order in an anarchic and chaotic scenario.

The quandary exists because even the laudable negative rights of life, liberty, and property ownership, as Eric Mack discusses in his essay on Just War Theory, require a positive enforcement by others. Similarly, “rules of war”–such as refraining from attacking non-regulars, not attacking neutral parties, abiding by the terms of treaties, treating prisoners of war with respect, etc.–are, theoretically, difficult to establish and dependent on positive enforcement. This is because if Party A respects these rules, they provide a perverse incentive to Party B to take advantage of Party A’s restraint, and if doing so gives Party B the upper hand, they can enjoy the benefits of betraying the rules of war with impunity. This is a classic Prisoner’s Dilemma, and if it generalized across many nations, the theory of rational choice would lead us to expect a coordination problem, in which those using the strategy of Party B would dominate the Party A’s.

I am certainly not the first to identify this, and the literature on overcoming coordination problems through iteration of the Prisoner’s Dilemma, regime collaboration, and international organizations and treaties is incredibly thorough (just for a taste, you can see James Morrow’s book, F.V. Kratochwil’s book, and articles by Duncan Snidal, Arthur A. Stein, and even James Buchanan and Victor Vanberg). However, I thought it would be interesting to examine the historical evidence of effective rules of war, particularly from the premodern period. Because global communication technology and networks, international courts, treaties, and organizations, and deterrence based on the terrifying weapons of modern war were lacking in antiquity and on through roughly the 18th century (open to argument on that one), premodern societies seem to be the best test of the effectiveness of rules of war and their mechanisms. I won’t discuss any in detail, and I am skipping many rules of war for which their effectiveness is not discernable (such as the Mahabarata, Deuteronomy, and the Quran), but here is a list of interesting examples for discussion:

  • The archaic Greek poleis:
    • As Victor Davis Hanson argues in his influential book, the Western Way of War, the incentive to focus on agricultural production and the fact that citizen-warriors were personally responsible for military service made the costs of long-term campaigns, especially given the lack of siege technologies and the difficulty in laying waste to wheat fields and olive trees, higher than the potential benefits. However, there were still disputes to be resolved, and raiding was still harmful to the agriculture of polis that was raided. In order to limit costs to both invader and defender, the poleis developed the hoplite warfare strategy, in which citizen-soldiers met for decisive conflicts in traditional, if not previously agreed, locations, in which limited territorial gains were afforded to the victor. While this does not describe every aspect of 7th-5th century warfare in Greece, this strategy pervaded the Greek mainland and allowed disputes to be resolved with minimal collateral damage and investment.
  • Thucydides’ Athens:
    • Though Thucydides’ History of the Peloponnesian War is seen as the invention of realism based on its “the strong did what they could, and the weak suffered what they must” representation of self-interest in foreign policy, his narrative as a whole shows an important constraint in war: if a military power makes war with the expressed intent of empire-building without casus belli, they will entrench their enemies, alienate neutral states, and cause divisiveness on the home front because they have lost the moral high ground. Thucydides notes that the majority of Greeks opposed Athens on the grounds of their selfish empire-building, and because of their inability to convince Sparta of their just motives, brutality to neutral states, internal dissension during the Sicilian expedition, and many other misfortunes of war (plague, death of Pericles, Persian intervention), Athenian power was broken. The lesson: Party B (from above) must consider the international reaction to abusing Party A, and at least make a public showing that the war is just. Also, if Hitler had only read his Thucydides, he might have known that marching through Belgium may be tactically sound, but he was risking the same reaction that the Athenians risked in the Melian massacre.
  • POW’s and ransoming in antiquity
    • Several rules of warfare were maintained through the mutual benefits to combatants, the most notable being the conventions concerning ransoming. From at least 5th century Greece (in the Sphacteria incident) to Caesar, citizens could be ransomed following a battle—and there were even conventional levels of payment for these POW’s. This was a benefit specifically afforded to “civilized” foes, and Roman practice increasingly became enslavement rather than ransom, but this convention was widespread for centuries, possibly showing that ransoming enemies is an Iterated Prisoner’s Dilemma.
  • Ancus Marcius and Just War Theory:
    • Along the same lines as the Thucydides example, the Romans engaged in the ritual of the fetiales, including the enumeration of the just cases for war, before invading an enemy. This limited war to official disagreements with neighboring states, and other religious conventions were maintained that limited certain tactics in war (a noteworthy passage of the Aeneid shows that putting on the armor of your enemies for stealth purposes would be doubly punished by the gods). These conventions included looking down on poison as woman’s weapon and on taking some religious statuary as booty, and though Roman generals still poisoned wells or robbed cities of their gods, they received negative reactions by their contemporaries.
  • Hostage policies throughout antiquity:
    • Another problem with the rules of war is the enforcement of treaties, which have credible commitment problems. Both Greeks and Romans made imperial gains by breaking treaties, but it was common practice to overcome the credible commitment problems of both alliances and treaties to end wars that hostages, usually the children of influential citizens or nobles, were exchanged. Whether they were exchanged both ways (more common in alliances) or passed only one way (usually from the defeated to the victorious), hostages were used at least 250 times by Rome and countless times by other ancient civilizations to ensure the enforcement of treaties.
  • Carthage’s “Truceless War”:
    • While we often think of ancient war as anarchic and based on the whims of generals, wars that completely lacked conventions or limitations were rare. In fact, following truces that allowed for collection of the dead, ransoming of both the living and the dead, and supplication for one’s own life go back at least as far as the Iliad, and wars that lacked such conventions were shocking to ancient historians. Such wars occurred when one side broke a general convention, usually the convention of allowing enemies to surrender alive and be ransomed. Because of this betrayal, their opponents would also stop following any rules of war, and such wars became not about achieving strategic goals but annihilating the opponent entirely. Carthage, following their loss in the First Punic War, fought a truceless war with their former mercenaries due to lack of payment that featured escalations in mutilation and crucifixion until the mercenaries were wiped out, at great cost in men and money to Carthage.
  • Roman 3rd party arbitration or intervention:
    • The Romans, after they gained international prominence but before they ruled the whole Mediterranean, took an interest in wars between their neighbors. While this sometimes included imperialism, in several instances they served as a 3rd party arbitrator of peace, and even as an enforcer of peace in Antiochus IV’s invasion of Egypt.
  • Blood feuds:
    • While mentioning blood feuds brings up images of Hatfields, McCoys, and senseless brutality over generations, blood feuds were actually a mechanism for limiting violence through threat of reprisal. While the effectiveness of this mechanism may be debatable, its intention as a limitation of violence is notable in several pre-modern societies, especially the Scots and Slavs.
  • Chivalric codes:
    • We should be careful of romanticizing this example, but from the 12th to 14th centuries, chivalry established rules of conduct for how knights should treat knights on and off the battlefield. Much of the conception of chivalry comes from poetic fictions about historical figures that were vicious or corrupt in many ways. However, it was actually the battlefield codes, such as ransoming rather than killing noble foes, that were actually practiced the most often, a trend that saw a brutal reversal in the War of the Roses. One might point out that neither the chivalric codes nor the earlier Roman codes of war included avoidance of harming civilians. This shows that, while rules of war were effective in practice at many points in history, they did not always have the same conceptions of what these rules were made to protect.
  • The Roman Catholic Church:
    • Catholicism influenced the rules of war in two ways: like the fetiales of the Romans, it established the grounds on which war was justifiable (and was influential on the ideals of chivalry), and the pope himself, through the power of excommunication, could limit the warring impulses of kings and lords. While many popes used their power to cause conflict, the church still had both moral influence and bargaining power, and was a powerful international institution for centuries that forced treaties on Christian rulers, provided a court of arbitration, and, several times, that tried to unite these leaders in war against non-Christians. The influence of Catholic peacekeeping measures waxed and waned from Charlemagne onward, but the Peace and Truce of God was one of the earliest attempts to protect non-combatants in wartime

This very incomplete list represents a lot of the more conventional examples of this phenomenon (sorry, but I am very conventionally educated). I would love if those who have other examples, especially from outside of Greece, Rome, and the Western World, would bring them up in the comments so I can expand my knowledge of the history of the rules of war!

The many iterations of rules of war in pre-modern societies shows the effectiveness of spontaneous order in creating systems that promote liberty and peace. These rules did not eliminate violence, cruelty, or imperialism, but they forced self-interested parties to check their selfish impulses. This is not an argument that international organizations with the goal of limiting war are unnecessary (and the Geneva Conventions are a laudable example of voluntary self-enforcement), but rather a demonstration of the wide reach of both Smith’s invisible hand and Hayek’s spontaneous order: even in the most anarchic of trades, long-term individual self-interest can support general interest, and a certain level of order is imposed on the chaos of war through the unplanned conventions of societies.

 

ἐν μὲν γὰρ τῇ οἱ παῖδες τοὺς πατέρας θάπτουσι, ἐν δὲ τῷ οἱ πατέρες τοὺς παῖδας

In [peace], sons bury their fathers, but in [war], fathers bury their sons.

–Herodotus, The Histories, 1.87.4.

Myths of Sovereignty and British Isolation XVIII: Laws, Juridification and the Administrative State

Barry Stocker History, Law , , , , , , , ,

The last post focused on the distinction between civil and common law, with regard to Britain’s position as a common law country in contrast with the civil law tradition of the rest of Europe. The promise at the end was to move onto laws, charters, and constitutions in this post. However, I have found it necessary to discuss the idealisation of common law further and look at how a large part of this looks back to a world which is lost, regardless of predominant legal system as societies have roughly speaking moved from customary law to ‘juridification’ (state centred comprehensive law penetrating all social relations), and then the world we live in now of the administrative state.

The British sovereigntist and Eurosceptic position tends to emphasise a supposed unique British exception from the statist rationalism of civil law, in the ‘common sense’ of the accumulation of law arising from judicial precedent in the decisions of judges in previous cases. This supposedly British exception looks rather challenged when we consider the thoughts of the influential German philosopher Hans-Georg Gadamer in his 1960 book Truth and Method. Gadamer refers to French rationalist Enlightenment in contrast with a German form of Enlightenment based on the original understanding of ‘prejudice’.

Prejudice, in Gadamer’s account, did not begin as a negative term for the constraints of false assumptions, but in a legal process in which the court forms a preliminary opinion in an early stage of proceedings. For Gadamer this represents the continuity of custom and the communal sense of justice in contrast to abstract rationalism. What he describes is not the same as the common law tradition, but represents another way in which the apparent underlying advantages of common law can appear in another system.

The idealisation of common law is really a claim to prolong the role of custom in law into the age of state statutes and deliberately constructed legal codes. Not that an age can be identified in which pure custom operated and no state created laws existed. It can be said that laws used to be less in number and articulated in terms of defending the wisdom of ancestors as part of a generally shared sense of justice.

However, the destruction of such a world, which depends on accepting fictions about the harmonious origin of laws outside the interests of power, was not from the triumph of civil law. The heroic moments of civil law in the process that leads from 1789 French Revolution through constitutional monarchy, republic, and Bonapartist autocracy, are the product of the decay of traditional societies in which localised and regionalised kinds of authority operated in ways which mixed statute and customary law, and where even in conditions of political autocracy the state ruled over either a very small community unified by common experience, or larger units which aggregated such communities rather than enforcing a very uniform and unitary form of sovereignty back by a hierarchical bureaucratic-military state machine.

There were of course elements of the latter, as in the eleventh century Norman Conquest of England, but even this established only a minute state machine by modern standards, which recognised the ‘privileges’ and ‘liberties’ of the City of London, the church, the barons, and so on. The idea of civil law is generally traced back to Rome, bracketed by the Twelve Tables of fifth century BCE Rome and the Corpus Juris of Civilis (often identified with the Institutes which form just one part of it) Justinian promulgated in the New Rome of Constantinople in the sixth century CE.

This civil law prevailed in Roman Britain for four centuries as it did from the Rhine to the Euphrates. The Roman world, including the Greek empire governed from Constantinople, that emerged in the sixth century, was nevertheless a world of localised traditional authority in which central state institutions were more like connecting threads rather than an all inclusive structure.

The Middle Ages saw a process of juridification, as Roman law continued in the church and was revived for the state, in which the uniform administration of justice became strong enough for a system of dominating unifying state military-bureaucratic power to emerge underneath sovereignty that was beginning to become more distinct from the person of a king (or occasionally the persons of an aristocratic assembly).

All European states went through a process, which has been implemented elsewhere, leading to what is now known as an administered society, administrative state, biopower, and all the other terms referring to the inclusive, comprehensive and unifying power of state law and state bureaucracy in relation to society. This was simultaneous with the development of capitalism as a dominant economic system working through unified national markets and trade between states.

A lot of what is said about the difference between common law and civil law represents a wish to return as far as possible to go back to a time before administered societies and even before juridification. There is no time at which law was purely traditional and consensual and no current possibility of even approaching that ideal. Concerns about the administered-juridified society have to be addressed with that world.

The common law tradition might or might not on average be better than the civil law tradition from that point of view, but common law is not what its strongest defenders wish it was and it is not obvious that civil law states in northern Europe including Switzerland, the Netherlands and Denmark, and in a slightly more qualified but real way, Germany are doing worse for liberty and prosperity than the English speaking common law countries. France, the homeland of modern civil law, is itself not doing at all badly compared with most countries in the world as it is and certainly in terms of human history.

For the next post the intention is to finally get onto charters and constitutions.

Myths of Sovereignty and British Isolation XVII: Common and Civil Law

Barry Stocker History, Law , , , , , , , , , , , , , , ,

The last post referred to the need to investigate ideas about law and related ideas in discussing Britain’s relation both with the Anglosphere (USA, Canada, Australia, New Zealand) and with the rest of Europe. The big issue here is Anglosphere common law tradition versus Roman or civil law tradition in the European mainland and indeed most of the world outside the Anglosphere. Common law in this context refers to judge-made law based on precedent versus civil law referring to statute laws based on the will of the sovereign. Statute laws are laws instituted by the state, in writing, in public explicit acts of law making.

Judge-made laws based on precedent refers to the ways in which judges, using a general sense of justice, make judgements according to that sense of justice with the precedents of previous relevant judgements shaping the sense of justice along with the whole set of laws and their general principles. Civil law judges look at the text of statutes, as do common law judges, but apparently the latter category of judges are also concerned with the mixture of precedents and general spirit of the laws.

There are certainly some real differences between common law and civil law traditions, but how straight forward are these difference? The phrase ‘common law’ itself comes from the codification and national harmonisation of laws undertaken by French-speaking kings of England, after William, Duke of Normandy, conquered England. So the phrase ‘common law’ itself refers to the opposite of what common law has come to mean: the English legal tradition since the High Middle Ages has come out of conquest by an external power. We can argue about how far Anglo-Saxon laws and judicial formalities survived the Norman and Angevin re-codification, but there is no denying that the re-codification happened and that nothing now survives from the Anglo-Saxon era.

England started off in the earlier Middle Ages where all of post-Roman Europe stood, that is Roman law had collapsed and Germanic tribes introduced their own laws in conquered territories, where some elements of Roman law survived in the canon law of the church. The Roman law system itself reached a peak with the final codification undertaken under the Emperor Justinian in Constantinople during the sixth century. The transformation of the eastern part of the Roman Empire into a Greek empire included a decline in knowledge of Latin so understanding of the definitive law text was limited, but survived in the Empire including the last Roman-‘Byzantine’ holdings in Italy.

Knowledge of Roman law increased in the thirteenth century, in association with the growth of new universities where legal education played a very large role. England was not outside this process, but it is fair to say that it was less influenced by it than some continental powers, particularly France. The process of Revolution and Bonapartist rule, from 1789, produced a large scale deliberate construction of law as a unified system based on the will of the sovereign (whether elected assembly or absolute monarch) with regard to the laws, which was exported to other parts of Europe in the Revolutionary and Napoleonic wars.

The British commitment to common law was not entirely consistent since Scotland has always retained some differences from England in its legal system, which place it closer to the civil law tradition, at least compared with England. In the United States, there was a parallel to the French republican and Bonapartist experience of redesigned institutions in the process of adopting first the Articles of Confederation and then the Constitution of the United States, which unified the thirteen British colonies in a common structure.

The difference between French and American constitution making is often held to be that the French constitutions claimed that laws are the will of the people and the product of nature, while the American constitution is designed to disperse any idea of a single political law-making will between the different branches of federal government and the ‘several states’. However, the preamble to the US Constitution refers to ‘we the people’ and therefore asserts that it is the product of a single political will of the people in the union.

While the US Constitution does not refer directly to good laws as the work of nature, there were shared underlying assumptions in France and the US concerning the ‘natural’ status of good laws, good political institutions, and justice. It is at least true that the US constitution federalises rather than centralises, while the French process of about the same time ended in a very centralised state. This cannot be the difference between common and civil law systems though, since there are federal civil law states like Germany and Switzerland and unitary common law states like the UK and New Zealand, though the UK has been evolving in a more federal direction, if in a rather ad hoc and limited way, since the turn of the century.

Next, laws, charters and constitutions

Expanding the Liberty Canon: Seneca on Mercy and on Anger

Barry Stocker History, Liberty, Philosophy , , , , , , , ,

Lucius Annaeus Seneca the Younger (4-65 CE) was born in the Roman Spanish city of Cordoba. Southern Spain was one of the most Romanised parts of the Roman Empire outside of Italy, so it is not surprising that Seneca made his way to Rome where he became a writer and, it seems, a money lender. He was also tutor to and then adviser to the Emperor Nero. He had previously been in conflict with the Emperor Claudius, for unknown reasons, and was exiled to Corsica for a while as a consequence.

Seneca’s writing career covered philosophical essays, tragedies, and letters which amounted to an exploration of his philosophical interests. He followed the Stoic school of philosophy, which goes back to the Greek philosopher Zeno of Citium (334-226BCE), and was influential on the Roman upper classes. So much so that the Emperor Marcus Aurelius (121-180CE) wrote his Meditations with regard to Stoic thinking on character and ways of living. It was written in Greek, indicating how far Roman thought on ethics, politics, and other topics was continuous with, or at least engaged with, ancient Greek thought.

Seneca’s relations with Nero turned out to be even more destructive than those with Claudius. Seneca tried to educate and advise Nero to be honest, just, and restrained in the use of power. However, Nero turned out to be one of the most infamously cruel, paranoiac, and violent Emperors. These negative tendencies were turned on Seneca, so that even after Seneca had retired to the countryside to avoid the bad atmosphere around Nero, he was forced to commit suicide on suspicion of complicity with a conspiracy to assassinate Nero. (Nero himself was overthrown and pressured to commit suicide three years later.) Suicide was a relatively honourable form of death for Romans, and it was a privilege to be allowed to commit suicide rather than face execution, nevertheless Seneca and Nero can be said to have both met sorry ends as a result of political turmoil initiated by Nero.

Nero’s behaviour was really the direct opposite of that recommended to rulers by Seneca’s essays on anger and on mercy, and was a painful failure for Seneca who had tried to educate him from childhood for a moderate self-restrained use of power. Seneca’s approach to politics is to advise an absolute ruler in the use of power, so he might seem a bit paradoxical as part of a series on liberty. However, Seneca was considered as a major supporter of republics, of government based on individual liberty in the early modern period, so that Thomas Hobbes, the authoritarian-minded philosopher and political thinker, considered his thought a danger to sovereign state power.

Seneca’s thought certainly did mark the death of the Roman Republic, which was essentially abolished in substance (after a historical phase of hollowing out) by Julius Caesar in his period of absolute power from 49BCE until his assassination in 44BCE. The failure of the assassins to restore the republic led to the absolute power of Augustus and the inauguration of the autocratic emperor system.

Seneca refers unfavourably to those who use the Greek idea of ‘parrhesia’, that is free and critical public speaking, to excess, going against what had been taken as central to the liberty of citizens. The reason Seneca can be placed in the liberty tradition is that even when criticising excess in free speech, he praises a Macedonian-Greek king on the receiving end for the restraint of his reaction. Living in an age of absolute rulers, Seneca’s main concern is that they rule as the foundation of individual rights rather than as a source of arbitrary power over citizens.

The essays on mercy and anger bring together the fields of personal virtue and the best ways of governing. Virtue for Seneca, as was normal for ancient thinkers, was deeply embedded in ideas of self-restraint and moderation. From this point of view anger damages the angry person, as an example of self-harming extreme behaviour. Anger is a negative painful state of mind and to act under its influence leads to great harm.

Seneca is not simply saying that a ruler should follow general moral virtue in the manner of ruling. He places a particular responsibility on the ruler to resist anger and show mercy. The individual may harbour resentment against some enemy who caused harm, but the ruler must avoid such resentment. The ruler who publishes and executes all those regarded with suspicion as present or future enemies harms the state and the public good. Harsh treatment of individuals by rulers leads to those individuals becoming angry with the ruler so conspiring against that person. Executions will only stimulate further rebellion by those who were closest to the executed and leads to an increasingly violent period of rule. All the violence and revenge has negative consequences for the public good as well as for those persecuted.

The ruler should regard all individuals as part of the state, which he should be trying to manage responsibly. The state is harmed if any individual within the state is harmed, as the state exists to promote the public good. The ruler who cannot restrain desires for cruelty and who ignores the rights of individuals is suffering from a self-harming weakness of character and is likely to suffer violent revenge. Seneca mentions the third Roman Emperor, Caligula, in this context, who was assassinated in 41CE, four years after succeeding Tiberius.

The best thing the ruler can do is show mercy. Those who receive mercy, even after plotting assassination, are likely to start supporting the ruler, and even work for the ruler. It is better to forgive and try to integrate a conspirator than kill the conspirator so that others will wish to avenge that murder. The ruler should obey laws as much as ordinary citizens, and should be mild in applying laws. Everyone is guilty of some fault, of some minor breach of law, at some time, so that punishing all wrong-doers will lead to the destruction of a society, as nearly all inhabitants of the territory of the state disappear.

While Seneca assumes that political power rests with one person, he argues that the continuing exercise of the power rests both on reliable justice with regard to the execution of laws and restraint from the most extreme or obsessive punishment. The powers of the state are understood as different from those of an individual, and as such must be much more limited in use than the power of citizens. The rights and welfare of citizens depend on a ruler who follows law and assumes less power than individuals, which makes a worthy contribution to thought about liberty.

Expanding the Liberty Canon: Cicero’s On the Republic

Barry Stocker History, Law, Liberty, Philosophy, Politics , ,

Marcus Tullius Cicero (106-43 BCE) was a prominent lawyer, politician, and thinker in the last years of the Roman Republic. His death was a murder in revenge for his attacks on Marcus Antonius (known in English as Mark Anthony), in the form of a speech in the Senate against tyranny known as the First Philippic. It is known as the Philippic in tribute to the speeches of Demosthenes (384-322 BC), which attacked the tyranny of Philipp II of Macedon over Athens and the other Greek city states.

The background to this is that the Roman Republic had been falling into the hands of military strong men for some time, who stretched the institutions and  laws of the republic in order to exercise supreme power.  Gaius Julius Caesar was  the last in this sequence. After his conquest of Gaul (France) he taken supreme power in Rome out of a mixture extreme drive for power and as a protective measure against enemies after the lost the immunity associated with the governor’s post he had during his war of expansion.

After winning a way against his most important rival, Caesar offered mercy to previous opponents allowing them to be influential in Rome. However, Caesar was increasingly looking like a new king, a  hated office in Rome, and the political system was designed to prevent any one person having complete power except for a short period in exceptional circumstnces. Caesar used this office of dictator, originally designed to offer emergency powers to a general during a time of military crisis for no more than six months, to become the permanent absolute ruler of Rome. He publicly rejected the offer of a crown from Mark Anthony, but was suspected of waiting for the right moment to proclaim himself king.

A conspiracy developed against Caesar amongst aristocrats who wished to preserve republican practices in which no one man could dominate Rome, so that power was shared between the aristocracy, with some influence granted to the common people. Cicero was a not a member of the conspiracy, but approved of its action against Caesar, which was led by Cicero’s friend Marcus Junius Brutus. It is highly pertinent  to Cicero’s vision of the republic that Brutus was, or appeared to be, the descendent of the Marcus Junius Brutus who led the overthrow of the last King of Rome in the early years of the sixth century BCE.

The conspiracy against Caesar resulted in his assassination by a group of senators in 44 BCE. However, the assassins were not able to take over Rome and moved to eastern Mediterranean parts of the Roman lands to raise forces and organise for a war against Caesar’s followers. After the assassination Caesar’s friend and colleague, mark Anthony allied with an 18 year old nephew of Caesar, who was his legal heir. The boy became the Emperor Augustus. The rest of the story would go beyond the limits of this post, so it will enough for now just to mention that Mark Anthony took power in the city of Rome, leading to the murder of Cicero, while the future Augustus built up a position which enabled him to become the political successor to Caesar, not Mark Anthony.

Mark Anthony is reported to have ordered Cicero’s hands to be removed during the assassination and nailed to the door of the Senate house, in a tribute of a kind to the power of an eloquent speaker arguing for liberty and demonstrating liberty in the act of speaking, using his hands as ancients did in a rhetorically guided way as a major part of emphasising points. Though after the First Philippic the likelihood of violent retribution from Mark Anthony led Cicero to confine himself to writing further Philippics that were not read out in the Senate.

Cicero had previously served as consul (one of two officers of the Republic who shared the powers of a king for one year), the governor of Cilicia (modern day Adana in Turkey), and other offices. His political career included some  very rough measures to defend the republic against what he thought of as existential danger and we should not turn Cicero into defender of pure constitutionalism and law in life, as well as in his writings. His writings do suggest a strong wish to live under laws rigorously enforced, and it has to be conceded that it was practically impossible to participate in politics at that time without being party to some very rough actions.

Cicero’s writings are not merely an important moment in antique thinking about liberty, but a major event in the  linguistic and conceptual translation of Greek philosophy into Latin. Cicero’s Latin became the model for educated Latin style and usage under the Empire. His influence as a Latin stylist, thinker, and republican, was important on many generations of the more educated members of the aristocracy and the upper classes in Europe into the 19th century, because of the centrality of Latin  to elite education.

Cicero wrote a number of texts concerned with liberty apart from On the Republic, including On the Laws, On Duties as well as various texts about oratory, letters and speeches. Online versions of On the Republic can be found here and here. The book connects with the issue of the apparent lineage of Brutus the assassin of Caesar going back to Brutus overthrower of   monarchy, because it emphasises tradition. Laws are understood to be good if coming from venerable custom and that reinforced the arguments for a Senate connected with the Roman past through the ancestry emphasised by the aristocracy. Cicero was himself from a provincial family that had recently became rich, but felt that the connections of many other Senators with the deep Roman past was very valuable.

The aristocracy, organised politically in the Senate, provides the real heart of Cicero’s ideal republic as it provides a means of government midway between the disorder of democracy and the tyranny of one man rule. The people should have a share in the political system, but one constrained to prevent imbalances arising. Monarchy existed in the Roman republic, in the form the consuls who shared power for two years. Democracy existed in the role of citizen assemblies and tribunes who had veto powers and were elected by the lower classes as a guarantee of their rights.

Cicero saw the benefits of aristocratic power as a so great that except where the people had become unusually virtuous it is a good thing for the aristocracy to be able the how the lower classes voted, so that patrons could influence the votes of those who depended on them financially. This could be seen as very self-interested on the part of Cicero since he was a member of the aristocracy, but also fits in with his argument about the importance of avoiding the bad government of individuals with absolute power and of disorderly democratic assemblies. Both extremes are bad for a republic.

Cicero was certainly very horrified by the idea of a tyrant, suggesting that such people were vicious beasts and enemies of humanity. Unfortunately, like the other ancient thinkers, it just seemed obvious to him that Romans were a free people not worthy of slavery, while other peoples were worthy only of slavery. Roman readiness for liberty was based on customs and traditions that endured over the centuries.  Cicero’s vision of law was as the outcome of  virtue cultivated over over centuries.  Laws were based on what could be found in customs so reducing the chances of laws appearing that impinged on the rights of any citizen.

Cicero’s understanding of law, custom, rights, and virtue was rooted in Roman history, in which he thought the early Roman kings Romulus and Numa, had built the institutions needed  by a republic concerned with respect for a divine sanction underlying laws.  Cicero probably did not believe in the standard Roman paganism, but evidently thought it suitable for making the laws as respected as possible. Cicero’s view of virtue also led him to favour a republic not too open to trade and other forms of connection with the outside world. He thought that Rome’s position  on a river rather than the sea was ideal for keeping foreign influences down to an acceptable level. Carthage, Rome’s old enemy in what is now Tunisia, was less blessed in that it was a city on the sea and had been dominated by trade.

Cicero’s suspicions of trade and cosmopolitan interaction  was regrettable, but was part of the antique way of thinking in which individual liberty in a city rested on virtue, state enforcement of public behaviour, as was the responsibility of Roman ‘censors’, and  detachment from money making activities. Liberty could only fully existed where an aristocracy accustomed to self restraint dominated institutions in which the recklessness of the lower classes and the greed of those trying to rise up could be held down.

It was difficult for Cicero to imagine strong laws and institutions, as able to guarantee liberty, except in a society where the rapid innovations and changes of trade and commerce were sufficiently dampened to allow the old to remain in place. There are modern problems in integrating effective laws and institutions with change and variety, and no one had an obviously better idea of how find a balance than Cicero did in antiquity.

Expanding the Liberty Canon: Rome and Carthage in the Histories of Polybius

Barry Stocker History , , , , , ,

This historically-based exploration of writing on liberty now reaches the point where the Greek world has fallen under the domination of Rome, but even at this point we can see that the Greek language and heritage will continue to be important in a Roman dominated Mediterranean, particularly in the eastern parts, leaving the legacy of the Christian Gospels in Greek, the fifth and sixth century CE transformation of the eastern Roman Empire into a Greek Empire, still known to itself as Rome, but to us as Byzantium. In Polybius we see the beginning of a history of major writing in Greek within the Roman world, which continued through many areas of thought, producing major classics at least up until the philosophy of Plotinus in the third century CE. The founding figure of the Byzantine system, the Emperor Justinian took Christian teachings to the extreme of closing the Academy of Athens in the sixth century, and that is a convenient marker of the end of the greatness of ancient Greek writing and thought. Of course all such markers are arbitrary and the antique Greek tradition did not abruptly vanish at that moment, and the writing of the last Athenian philosophers had a very different context from that of original Athenian classicism and even more so from earlier Greek thought.

Polybius’ Histories may contain the last important work of political thought in ancient Greek, though such claims are always up for debate. He was born in about 200 BCE in Megalopolis in the central part of the Peloponnesus, that is the southern land mass of mainland Greece. The Greek city states had previously lost full independence to the hegemony of Macedonia. Roman expansion provided both an alternative to Macedonian rule and subordination to a new hegemonic power. The Achaean League had allied Megalopolis and other southern Greek states at a time of renewed independence from  Macedonia. However, the complications of continuing competition between the Greek city states, along with trying to play Macedonia and Rome off against each other, ended with absorption into the Roman state system expanding outside of Italy.

These political complexities led to Polybius becoming one of the hostages taken to Rome to ensure the adherence of the Achaean League to an alliance. Polybius was an aristocratic politician and general who served the Roman need for hostages who would tie the elite to Rome. Polybius could have left Rome long before his death, but became a friend of leading citizens and an admirer of the Republic, so stayed in Italy though maybe dying in southern France in 118 BCE. He wrote various books, though all we have left is the Histories, and that is not complete. It is mainly concerned with the Punic Wars, that is the wars between Rome and Carthage, and is one of the main sources for that major event in antique history, which is more than just  a war. It was the triumph of one form of republic over another for hegemony in the Mediterranean world. In the end, the Carthaginian Republic was completely destroyed including the city of Carthage itself and Rome changed in nature from a  major power in Italy to the dominant power from Anatolia (the major landmass of what is now Turkey) to Spain, from central Europe to north Africa.

The transformation attracted the attention of later writers on liberty, who will appear in later posts. In particular, two great Enlightenment figures Giambattista Vico and Charles-Louis de Secondat, Baron de la Brède et Montesquieu were centrally concerned with the story as that of a triumph of republican liberty, that of Rome, mingled with a subsequent decline of liberty, and the loss of another model of republican liberty, that of Carthage. The story and the political interpretations were well known over centuries to writers on liberty.

Polybius studied the Punic Wars in depth, using his friendship with the Roman general Scipio and a journey through the Alps where the great Carthaginian general Hannibal crossed into Italy. Within that historical account, in Book VI Polybius embeds an account of the Roman constitutions, itself mingled with a discussion of the Roman military system.

Polybius concluded that Rome had the greatest of all constitutions known to him. His comparisons were with the Greek city states and with Carthage. He admired the Spartan constitution most out of the Greek constitutions, which may surprise many now. However, as a recent post on Aristotle points out, many Greek thinkers were suspicious of Athenian democracy as allowing a kind of mob rule over law and traditional restraints on power. The way Polybius supports that positions is to refer to the limited endurance of Athenian democracy, (defended by Pericles as reported by Thucydides) compared with the more oligarchic, or aristocratic, Spartan republic. Republic is a Latin originated word, which is very close in meaning to the Greek term for a city based on laws, which in modern English becomes polity, so when discussing Rome and Greece together, republic is a useful term.

The idea that Sparta was a better model for a modern republic than Athens, goes up to the Constitution of the United States. The Framers were conscious of the idea that the Athenian republic had failed, because it was too democratic, maybe too much based on the rule of the propertyless majority to be a republic. The United States did not have a citizen assembly like those of ancient Greece, but the Framers thought of the House of Representatives as an equivalent body, to be restrained by an aristocratic-oligarchic body, that is the Senate, along with a monarchical body, that is the President. Senators were nominated by state governments at that time, and the Electoral College to appoint the President was understood much more at that time as a vote for electors who would make up their own mind than as a embellishment in the direct election of the President.

It seems to me that this attempt to replicate ancient Sparta had broken down by the 1830s, or that is certainly what is suggested by Alexis de Tocqueville in Democracy in America (to be discussed in later post), who suggests that  America was already both republic and a democracy on a modern rather than an ancient model. The continuing claim of some in the United States that the country is ‘a republic not a democracy’, therefore seems highly unsatisfactory to me, and I doubt that many who use this slogan have thought about the Sparta above Athens message implied.

Anyway, Polybius’ arguments did influence the deliberations of the Framers, and even though I doubt those deliberations completely captured what a republic must be in a modern commercial society, his arguments are worthy of continuing consideration as thought about laws and institutions can work for liberty.

Polybius admired the way that Sparta balanced powers between different forces, so that though there was a citizen assembly, it largely deferred to a senatorial body, the Gerousia composed of aristocrats along with two other institutions: a monarchy made up of two kings from different royal families, who sat in the Gerousia; five ephors selected for one year, with the power to protect laws, customs, and institutions. This was underpinned by the famously extreme training of male citizens as soldiers, who maintained Spartan citizens as an aristocracy by force in relation to groups that were completely unfree, or who had legal rights, but no citizenship.

The Roman model seems to Polybius to be significantly similar to Sparta, and the differences are to the advantage of Rome, since not only has the Roman system already lasted centuries, but it has supported a far greater spread of military and political power than Sparta, which never extended its territory beyond the Peloponnesus. He sees the Roman system as embedded in the military system, and to a large degree sees military and political systems as embedded. Given the constant war and mobilisation of adult male citizens in the ancient world, this is unsurprising, particularly as citizenship rights and political systems were associated with what kind of military there was and which groups provided the most part. The Spartan system reflected the role of Hoplite infantry from the landowner-farmer class, while the Athenian system reflected the role of labourers employed to row naval ships. The Roman republic was a land military power, with different kinds of unit selected from all classes above slave, which fits with Polybius’ vision of republic as a mixed political system.

The Roman mix was a monarchical element of two consuls appointed for a year. The aristocratic-oligarchic element was the senate where the major landowners and state officials sat for life. The democratic element was the city assembly along with the tribunes appointed by that assembly. As with the earlier Greek writers, Polybius associates democracy with the political participation of the propertyless, or nearly propertyless classes of labourers, small traders, and craftsmen.

We may now sympathise with the idea of a system that prevents anyone institution or social groups dominating everything else, turning laws and administration into means of economic plunder. However, liberty advocates now may be less happy with Polybius’ advocacy of a vision of the virtue of citizens, in which military self-sacrifice is at the centre and commercial spirit is dismissed as corrupting. Polybius shares an attitude to be found in Aristotle and most antique writers (there may not be any clear exceptions at all) according to which wealth based on inherited landownership and state service is honourable, while wealth based on production and services for other peoples needs and wants is somehow disgraceful and immoral. This was part of antique suspicion of Athenian democracy which existed in a relatively commercial society, something else to be remembered by those inclined to oppose ‘republic’ to ‘democracy’. The suspicion of democracy and commerce extended to a suspicion of navies as a military instrument compared with land armies. The Romans were not as good sailors as the Carthaginians, because they were less active in trade and commerce. They built a navy against the Carthaginians as a duty and necessity, not by inclination.

Anyway, Polybius compensates for his faults with regard to his limited appreciation of virtue, and therefore of how liberty is exercised, does supply us with an alternative model to Rome, though it is sadly lacking in detail. Polybius concedes that Carthage had a great republican constitution worthy of comparisons with Rome and Sparta, along with the other Greek cities. For Polybius, the Carthaginian constitution must be inferior to those of Rome and Sparta, because it was a society of commerce, sea trade, and a navy to protect those activities. We may think something different and look to Carthage as an important model, where the commercial capacity was so great Rome feared to allow the Carthaginian city and republic to exist even after victory in two major wars. There is less we can say about Carthage than Rome, but we know that it balanced a citizen assembly with a political and military aristocracy, and that the people prospered from a spirit of commercial liberty as well as political liberty.

Another Liberty Canon

Barry Stocker Philosophy , , , , , , , ,

For my first post, I’ll pick up on the bio under ‘About the Notewriters’ and start to address the issue of what kind of texts I find most valuable with regard to thinking about liberty, though there are other reasons for selecting those texts, in particular I favour the kind of texts which are deeply embedded in literature, culture, and history. It is not an either/or situation with regard to whether one prefers the alternative canon here or more standard canons in introductions to liberty, and the like, but I think there are good reasons for paying more attention to the suggested texts, which apply to individual toms of  engagement, and more institutional ways in which groups promote liberty.

My own personal ‘canon’, apart from my favourites among the more obvious liberty oriented thinkers,  includes Niccolò Machiavelli (1469-1527), Michel de Montaigne (1533-1592), Søren Kierkegaard (1813-1855), Friedrich Nietzsche (1844-1900),  Hannah Arendt (1906-1975), and Michel Foucault (1926-1984).  If anyone is disturbed by the inclusion of any of these figures, I hope they will be less so by the end of the series of posts I am now starting on these figures.

I suppose that Montaigne is the least controversial inclusion, but nevertheless I have not seen a great deal of liberty oriented writing devoted to him. The word ‘canon’ is itself necessary when talking about what texts and writers count the most, but let us beware of any idea that there is a self-evident canon, rather than a variable canon, or canons, constructed from the shifting aggregations and interactions of the preferences of many individuals concerned with liberty.

Let us start at the beginning of the list in this post with Machiavelli, traditionally condemned to the extent of being identified with  the devil, and often seen as the arch-apologist for the cynical use and abuse of power, so as to promote state authority without regard to individual rights. A more favourable variation on this is to see the exposure of cynicism in politics as a justification for an anti-political streak of liberty oriented political thought.

On this last point, the anti-political position is really the opposite of the truth about Machiavelli, since he was very rooted in an antique republicanism for which human flourishing includes politically active citizenship, or at least living in a community where many are pursuing their rights through politics. Machiavelli was very attached in particular to the ancient Roman Republic, which he discusses in some detail in The Discourse on the First Ten Books of Livy, usually just known as The Discourses. 

Livy was the Roman historian Titus Livius Patavinus,  living at the beginning of the period in which one man rule by Emperors had taken over from shared republican government. His massive History of Rome only survives in part, including those books discussed by Machiavelli, which cover the foundation of Rome, the rule of the early kings, the overthrow on monarchy, and the early republic, including its struggles between aristocratic and democratic political forces.

In his commentary, Machiavelli certainly has ‘Machiavellian’  moments in which he welcomes ruthless use of force or manipulation of religious symbols for state purposes. However, these moments are very much concerned with state foundation, changes in political regime particularly to a more liberty based regime, and wars. The reading of ‘auspices’ (pagan interpretation of avian  behaviour and the innards of sacrificed birds) is manipulated only when necessary to rouse soldiers in battle.

War is a deeply unpleasant and destructive business and we should all hope we  are moving to a world without it, but we do not live in a world free of bad governments, or proto-governments, willing to use force to extinguish liberty in other states as well as within their own. Machiavelli certainly did not and nether did Livy.  The use of some psychological manipulation to raise military morale in the heat of battle is not the last word in tyranny.  The foundation of states, including those most inclined to liberty, law and peace, and the overthrow of tyrannical regimes has largely happened by force.  This certainly applies to the foundation of the United States.

Machiavelli’s view of republics is that they are strongest, and most resistant to the return of tyranny, where the citizen body are motivated to defend their rights in the public political sphere, and that an unruly rambunctious democracy is the antidote to feudal oligarchy as well as one person tyranny.  This is surely a powerful argument against anti-politics, which risks leaving liberty advocates unable to participate in the political process in order to resist tyranny.  We can certainly find that argument in the conventional heroes of thought about liberty like Alexis de Tocqueville and John Locke. Despite his willingness to excuse extremes of force and deception in certain situations of  necessity for survival, Machiavelli is overall and overwhelmingly an advocate of the rule of law, and recommends republican government, partly on the basis that it is more favourable to the universal enforcement of law than the more personalised and arbitrary attitude to law arising from monarchy.

Sometime Machiavelli’s Discourses are divided from his most famous work, The Prince on the grounds that the latter text just is a cynical manifesto to obtain favour from the Medici rulers of Florence. However, careful reading will show many ways in which Machiavelli argues for the limitation of the power of a prince, and of the state in general. Again law is regarded with the utmost favour and respect, so that, for example, France is praised at least a couple of times for the many laws and legal institutions built up during the late Middle Ages and Renaissance, in implicit contrast with Italian princely states.

Again force and deception are advocated where necessary, but only where necessary and in strictly limited terms. It is said that the prince should use  force like a lion and deception like a fox, and that to be feared is better to be loved. However, the force, deception,  and ‘fear’ is oriented towards the stabilisation of institutions of law, followed by the  regular  enforcement of laws, and Machiavelli places limits on how far the force, deception, and fear can go . The unloved prince is unloved, because he does not attempt to bribe the people with money raised through taxes on them, and does not bankrupt the state with unfunded ‘generosity’.  We can surely all agree that liberty would be better preserved if contemporary governments followed such maxims.

Machiavelli recommends that a prince should avoid contempt through showing respect for the property of subjects and the honour of women, that is the prince should not use state power to seize property, or sexually abuse women. In general the prince should be mostly concerned with the art of war, which is really a way of trying to nudge princes into accepting the de facto republics that  will arise if monarchs if they limit their powers and activities to defence of national sovereignty.

In his views on the proper limits of state power and the consequences of over extension, Machiavelli is a forerunner of public choice theory, one of the major aspects of recent liberty oriented social science, and like James Buchanan he had a strong belief in democracy, where it is concerned with laws that apply equally to all, and is to opposed the extension of state activity beyond strictly defined public goods.

I would say that Machiavelli is a great lover of liberty and though there is an increasing amount of good scholarship and commentary on his thought, the lingering associations around his name still create problems in the proper appreciation of his thought. There is a streak in the liberty community of suspicion of politics and of suspicion of  any state action even in emergency situations, outside the strictest legal supervision. There are some good impulses behind those suspicions, which I welcome, but taken to the extreme they would have prevented the formation of the United States or the Swiss Confederation, the Glorious Revolution in Britain, or any of the historical republics which explored the possibilities of liberty. Leaving aside such purism, I don’t see anything disturbing in Machiavelli beyond a taste for presenting brutal realities for what they are.  Even the most pure and fastidious of min-archists, and individualist anarchists, should at least find some value in Machiavelli’s analyses and his impulses towards liberty under law.

Libertarianism and Republican Virtue

Brandon Christensen History, Liberty , , , , , ,

I am short on time and effort these days, so I apologize for bringing up my school readings on the blog. I have moved on from Locke’s Two Treatises to Montesquieu’s Spirit of the Laws.  This passage in particular has stood out to me so far:

When Sulla wanted to return liberty to Rome, it could no longer be accepted; Rome had but a weak remnant of virtue, and as it had ever less, instead of reawakening after Caesar, Tiberius […] Nero, and Domitian, it became ever more enslaved; all the blows were struck against tyrants, none against tyranny (pg. 22).

The decay of the American republic has been a worry of learned men since the agreement first took place.  My big question here is not so much about decay or liberty, but rather what virtue is.  I have some conception of it, but any sort of clarification would be great.

Montesquieu treats the desires and defenses of manufacturing, commerce, wealth, finance and luxury as the end of virtue and the beginnings of ambition, which leads to despotism and tyranny.

Given that most libertarians are also republicans (small “r”), how do we go about explaining that the freedom to pursue material goods is what is actually compatible with democratic government?  Was Montesquieu attacking a straw man?