Jean-Louis Ferrary, La pensée politique de la Rome républicaine et les traités de philosophie politique de Cicéron. A cura di Maria Stefania Montecalvo

The volume under review consists of eleven previously published articles in French, Italian and English by the late French ancient historian Jean-Louis Ferrary (1948‒2020). Ferrary’s contributions, originally published between 1974 and 2012 but slightly updated with more recent literature and added remarks in the footnotes, all bear on Roman political thought, especially as formulated by Cicero: “Uno studio delle idee politiche a Roma sotto la Repubblica non può non assegnare a Cicerone un posto eccezionale,” as Ferrary points out (64) in the first contribution (1‒108), an extended essay providing an elegant survey of political ideas during the republican era. Cicero here is portrayed as a sophisticated political thinker who managed to combine both optimate and popular strands of thought in his political theory. Indeed, Ferrary demonstrates that Cicero’s preferred political order, the “balanced” or “tempered” constitution as described and defended in Cicero’s De Re Publica and his De Legibus, should be interpreted as an attempt to give institutional weight both to popularis and optimate concerns. If Ferrary’s Cicero is nonetheless firmly in the camp of the defenders of the senatorial order, this is owed to Cicero’s institutional design, namely his defense of the veto-power (intercessio) of the tribunes.

Ferrary thinks that Cicero was driven by economic interests and what Ferrary following Claude Nicolet calls (43) the “ideologia censitaria”, the outlook held by the uppermost strata of the census against the Gracchi and their program of agrarian redistribution and grain subsidization. But Ferrary notes correctly that the Gracchan land law did not, in fact, redistribute citizens’ private property, but instead sought to funnel the spoils of empire to a particular group (41). Perhaps this insight should have led Ferrary to bring out even more clearly that Cicero seems to have been motivated by constitutional concerns first and foremost. When Cicero writes that it was the violation of the veto-power of a fellow tribune that had brought Tiberius Gracchus down, rather than his agrarian policies^[1)], we should pay attention: Ferrary appreciates that constitutional procedure is crucial for Cicero but does maybe not separate legal and economic issues clearly enough. Cicero was not the only one to perceive Gracchus’s deposition of Octavius as deeply shocking^[2)], nor were Gracchus’s agrarian policies as ineffectual as Ferrary believes^[3)].

For if, as more recent research suggests, Gracchus’s policies aimed mostly at the redistribution of peripheral holdings of allies to citizens; distributed less land than hitherto assumed; and were largely successful^[4)], then Cicero’s claim that it was not so much the policies themselves but rather the way Gracchus pushed them through that aroused resistance, seems far more credible. If, in other words, constitutional, not economic, issues were crucial, this strengthens Ferrary’s overall argument, especially his insistence that Cicero’s ideal constitutional order represents the balancing of a concept of popular sovereignty with the idea of elite deliberation and constitutionally defined coercive powers of magistrates^[5)]. There is, however, still an inconsistency lurking in Ferrary’s account: Cicero is said to have assigned “absolute” value to the tribunician veto (53), but Ferrary at the same time follows those scholars who believe that the senate in the constitutional draft of the De Legibus was given authority to disregard that veto (35). Of course, Cicero himself might simply be inconsistent on this point, but it seems more charitable to interpret the passage from Leg. 3,10: eius decreta rata sunto as merely seeking to establish an official record of vetoed se­nate resolutions and giving senatorial decrees legal validity on a par with that of the comitia, without however protecting the senate from the veto ‒ otherwise, as Andrew Dyck has pointed out, Cicero “would effectively nullify” the veto^[6)]. It is therefore safer to assume that Cicero did indeed hold the tribunician veto to be absolute, at least in his mature political philosophy^[7)].

In several contributions (esp. 133‒149; cf. also 109‒131; 331‒343), Ferrary with great insight brings to the fore what hinges on the tantalizing tendency of our sources to distinguish between optimates and populares. Ferrary captures the distinction in terms of (142) two rivaling “value systems”, rivaling ideologies, accepting in an updated note (147) T.P. Wiseman’s view of “two ideological camps”. These camps were distinct not so much in sociological terms ‒ populares were no less elite than optimates, and one could morph into the other, depending on exigencies ‒ but in terms of their constitutional arguments and methods. Ferrary regrets, in his added note, not having said more about where he stands regarding the important scholarly dispute about the respective importance of the people or the elite within the republican system, but his remarks about the rivaling ideologies reveal that he might have thought of the rivaling value systems less in terms of intra-elite competition and more in terms of different views of the constitutional order^[8)]. The popularis method par excellence was the bestowing of extraordinary powers or commands via the assemblies, and the counterargument was usually given in terms of fidelity to constitutional rules concerning the collegiality and annuity of magistracies and, especially, concerning the veto-power of fellow magistrates and tribunes.

The veto was of course a double-edged sword; tribunes might use it against decisions by the senate, but they could just as well veto proposals before the people. The tribunician veto, when exercised by senate-friendly tribunes against a fellow popularis tribune ‒ Octavius’s veto of Ti. Gracchus’s legislation in 133 ‒ serves Ferrary as the key structuring device for the last century of the Roman Republic: from the deposition of Octavius onward, there were two opposing conceptions of the constitutional order, one based on the power of the people and the popular will, the other based on the tribunician veto right, the principle of collegiality, and tribunician inviolability (50). This establishes a very convincing framework for analysis and directs attention to the most fundamental tension characterizing the late Republic: were there any constraints on what the assemblies could do, on the legislation the people could ratify, or the commands the assemblies could bestow? Polybius famously thought that the Republic of his own day was in equilibrium, that the popular assemblies, the senate and the magistrates constrained and balanced each other. Ferrary argues that Cicero followed Polybius in giving the senate the deliberative weight it in his view deserved (36f.). When the senate ceased to be in charge of public deliberation (Cic. Leg. 3,28: dominus publici consilii), the equilibrium broke down.

So far, so Polybian. But then it becomes clear that Ferrary does not think that Cicero is ultimately all that Polybian: Cicero’s view of the relationship between imperium, on the one hand, and popular libertas, on the other, is now said to rely chiefly on Plato’s Nomoi, not Polybius. The Roman constitution develops out of a monarchical power, imperium, which is then said more and more to be tempered by concessions to popular liberty (91): “tutt’altra cosa, come si vede, dal sistema polibiano di checks and balances.” Cicero’s ideal constitutional order on this view turns out to be inspired chiefly by Plato’s second-best order, but the purpose of Cicero’s ideal state is said to be entirely in line with Aristotle. Ferrary argues (79) that what we have of the very fragmentary fourth book of Cicero’s De Re Publica indicates that Cicero is wedded to Aristotle’s eudaimonism and a view of politics as the implementation of a eudaimonist ethics.

Now Cicero does write (Rep. 4,3, trans. James Zetzel), it is true, that the “first cause of the creation of society” is the promotion of “the citizens’ shared association in a happy and honorable way of life” (illam civium beate et honeste vivendi societatem). Yet nowhere does Cicero connect this with a eudaimonist outlook in ethics, let alone in politics. Indeed, when we try to find out what he means by the citizens’ good life, we encounter a very un-Aristotelian list (Rep. 5,8, trans. Zetzel): “they should be solid in their resources, rich in property, well endowed with glory”, and, lastly, “honorable in virtue”. This is not particularly astonishing if we keep in mind the fact that Cicero was a card-carrying member of the skeptical Academy who, in his work on ethics and the good life, the De Finibus, leaves his readers with a sense of aporia when it comes to the competing conceptions of the good life on offer by the Hellenistic schools. Nor is it astonishing when we remember how Cicero defined, not the “first cause” of sociability, but the very purpose of the state in his De Officiis (2,73, trans. E.M. Atkins): states (res publicae) and cities (civitates) “were constituted especially so that men could hold on to what was theirs (ut sua tenerentur)”. Cicero goes on and separates the “first cause” of sociability deftly from the justification of the state: “It may be true that nature first guided men to gather in groups; but it was in the hope of safeguarding their possessions (spe custodiae rerum suarum) that they sought protection in cities.”

Ferrary’s view of Cicero’s ideal constitution as deeply influenced by the third book of Plato’s Nomoi strikes this reviewer as unhelpful as well, for if it is true that Cicero does not develop a eudaimonist political theory, Plato may well explain less here than Polybius does. In the fourth contribution (151‒174), a well-known article on the Roman constitutional history found in the second book of Cicero’s De Re Publica, Ferrary claims (162) in the same vein that Cicero’s constitutional history “ne conduise pas à la mise en place d’un système de checks and balances tel que Polybe le décrit”. Cicero’s was a proposal for a constitution that created a just relationship between the power of magistrates and popular liberty, Ferrary argues, rather than an equilibrium (167f.). But it is hard to follow the argument here: for Cicero, Ferrary writes (168), the tribunate could be opposed to the powers of the consuls, yet this “frein au pouvoir” should not be interpreted, for reasons unclear to me, as a countervailing power “destiné à équilibrer le pouvoir […] consulaire”. However, Cicero applied Polybius’s cycle to Roman constitutional history because he wanted to demonstrate the fragility of virtue: in every ruler, even the most virtuous, most just king imaginable (iustissimus sapientissimusque), there is hidden a potential tyrant (Rep. 1,43f.); virtuous aristocracies or democracies, too, cannot be expected to remain stable for long, precisely because virtue is not reliable; only a constitutional equilibrium made explicit in a system of fundamental constitutional norms may provide stability. Cicero’s solution, pace Ferrary, is Polybian, therefore, but it is Polybian with an important add-on: the equilibrium between institutions is not enough, constitutional legal norms of the kind Cicero put forward in the De Legibus are needed as well.

Ferrary believes that instead of the constitutional order in equilibrium, fortified by a hierarchy of legal rules, Cicero saw the solution in the figure of the rector: this statesman, or group of statesmen, is discussed in the eighth contribution (283‒317). Ferrary here argues with Richard Heinze against Richard Reitzenstein and Eduard Meyer that Cicero’s rector was not meant as a prefiguration of the principate but should be interpreted as a citizen with great insight into constitutional cycles, a citizen who will be able to control constitutional changes in the normatively correct way ‒ i.e., someone capable of stabilizing the balanced constitution anew. I am skeptical of this interpretation, if only because it seems to presuppose what the Polybian cycle was designed to show to be unreliable in the first place: a supremely virtuous statesman. If the most just rulers routinely turn into tyrants, what entitles Cicero to wheel in a rector ex machina to right things when they go awry? It would seem that Cicero’s entire constitutional theory is, on the contrary, meant to economize on virtue and therefore at odds with Ferrary’s view of the rector. Cicero tells us (Rep. 1,45) that this kind of man is “almost divine,” thus perhaps indicating the rarity of the phenomenon. It is true, of course, that there are indications (Cic. Leg. 3,30‒32, for example) that Cicero did think along the lines envisaged by Ferrary, but this would saddle him with considerable inconsistency in my view.

A better interpretation might be Andrew Lintott’s: given that the rector is entirely absent from the magistrates described and institutionalized in Cicero’s De Legibus, Lintott believes that we should interpret the rector neither as an ordinary magistrate nor as Cicero’s pious hope for a miraculously virtuous ordinary citizen, but rather as being “present in the De Legibus as the central figure in the dialogue, Marcus Cicero himself”. The function of the rector is, after all, “to pronounce on the principles of the res publica”^[9)]. This is in line with Cicero’s much more modest view of the virtue of those running the state; they are supposed to be virtuous in the sense of being highly knowledgeable in said “principles of the res publica”, namely in the fundamental law (ius) underlying the state^[10)] ‒ precisely the law Cicero thinks he is himself expounding in the De Legibus. Cicero’s ideal state, one might say, is designed on the basis of natural law by a prudent rector such as himself and run by statesmen who are, not Greek philosopher-kings, but Roman lawyer-magistrates. Roman political culture, on this view, turns out to be essentially juridical.

The centrality of Roman law may not be sufficiently recognized in the volume under review. Note the terminology with which Cicero delineates his concept of the rector: it is legal through and through. The rector is likened to a tutor et procurator, a guardian or manager, a fiduciary, and this legalistic, fiduciary view of the magistracy has the advantage of being in line with Cicero’s declared view of the magistrate as a speaking law (Leg. 3,2), constrained by the law (magistratibus leges praesunt)^[11)]. The knowledge of fundamental, natural law enables the rector to manage (dispensare) and oversee (vilicare) the state (res publica)^[12)]. Again, this ventures against Ferrary’s view of the rector as a great virtuous citizen, and in favor of the statesman as a natural lawyer acting on behalf of the people. The language of agency used is that of a slave ‒ overseers (vilici) were usually of servile status ‒ representing and serving the principal or owner ‒ the people ‒ within the parameters set by the law^[13)]. What unites the figures of the guardian, manager and overseer is their ability to act on behalf of someone else ‒ represent another party ‒ usually with limited liability for the principal, here the Roman state^[14)].

Ferrary’s view of the relative importance of the virtuous statesman vis-à-vis the law and institutions of the state grows out of his subtle and sensitive reconstruction of Cicero’s De Re Publica. Two of the contributions in the volume under review are concerned with reconstructing Philus’s and Laelius’s speeches in the third book of De Re Publica, respectively: “Le discours de Philus (Cicéron, De re publica, III, 8‒31 Z.) et la philosophie de Carnéade” (175‒214) and “Le discours de Laelius dans le troisième livre du De re publica de Cicéron” (243‒281). These articles are well-known and have been influential on subsequent scholarship^[15)]. Several times (e.g., 77‒80; 284‒288) Ferrary takes up the problem of the content of the very fragmentary books 4‒6 of De Re Publica (i.e., the part of book six that was not preserved as the ‘Dream of Scipio’). Ferrary sensibly takes his cue from Tubero’s request (Rep. 2,64) that Scipio give an account of the education or order (disciplina), the customary rules (mores) and the laws (leges) required to establish or preserve the best commonwealth. Ferrary relies on a remark from a letter by Cicero to his brother written in 54 BCE that his dialogue would be not only de optimo statu civitatis, but also de optimo cive (Q. fr. 1,5,1). It is clear that this would give virtue equal weight vis-à-vis institutions: on this view books 1‒3 were about the best state, its institutions and laws, and books 4‒6 about the best citizen, his education and virtue.

It is not clear, however, whether this remark from Cicero’s correspondence can quite bear the weight Ferrary wants it to have^[16)]. Importantly, in a passage not discussed by Ferrary, Tubero’s request is answered by Scipio in a way that seems better suited as a table of contents for the remaining books of De Re Publica than the remark from Cicero’s letter (Rep. 2,65, trans. Zetzel): “I think,” Scipio answers Tubero, “we’ll shortly have a more suitable occasion, Tubero, for discussing the establishment and preservation of states (de instituendis et conservandis civitatibus); but I thought I answered [the] question about the best condition of the state (de optimo statu) adequately.” In other words, books 1‒2 are about the best state; books 3‒4 are de instituendis civitatibus, about the foundation or constitution of states; and books 5‒6 de conservandis civitatibus, about their preservation. What Scipio does not announce are books de optimo cive, or de virtute civium, or anything of that sort. Accordingly, it is probably more prudent and in line with what remains of books 4‒5 to take Scipio at his word, but this would give institutions and their foundation, namely natural law, priority over the virtue of the citizen and the statesman^[17)].

On natural law, Ferrary follows Klaus M. Girardet in thinking that the laws Ci­cero puts forward in books two and three of his dialogue De Legibus are (311) “not substantive laws whose conformity to natural law raises them to the status of good laws, they are themselves part of the ius naturae and claim as a result the universality and permanency of natural laws.” This leads him to the striking insight (315) that the state, “if governed by true law, would be designed for the same eternity as that law”. Cicero, that is, was a realist about the natural law and justice, and defended justice against Carneades’s sophist attacks by arguing for its independent reality, a reality that it was necessary for all states to conform to if they wanted to maintain stability and order. It is perhaps because Ferrary conceives of the natural law too much in terms of virtue-ethical justice – the kind of justice that is best expressed as a character disposition to behave in the right way – and not enough in terms of a system of legal rules – the kind of justice best expressed as rights and obligations based on rules – that he is led to think of Cicero as a thinker who was more concerned with virtue than with institutions. Cicero himself, however, in the preface to the first two books of De Re Publica explicitly argued against Plato’s student Xenocrates, who had extolled eudaimonism, and wrote (Rep. 1,3, trans. Zetzel) that he preferred “formal authority (imperium) and the punishments established by law” which compel “everyone to do what philosophers through their teaching can persuade only a few people to do”.

None of these criticisms and suggestions subtract from Ferrary’s lucidity and the great insights he brings to a wide variety of topics in this volume. What is most impressive, because it is as rare as it is desirable, is his ability successfully to spend as much scholarly effort on institutional aspects as on philosophical ones. Ferrary was that rare scholar who could discuss the institutional details of the comitia centuriata with equal expertise as the normative ideas these details implied or the explicit normative ideas put forward in a technical way by philosophers. The last article (345‒377), on the views developed by various sixteenth-century scholars of the relationship between republican Roman and the Republic of Venice, shows that Ferrary was also keenly interested in the long afterlife of Roman political thought. An updated bibliography and several indices complement this very stimulating volume.