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

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

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

(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

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

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

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

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-

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

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

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

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

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

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.

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

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

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

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 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

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.