The Importance of where power lies: Lessons from the Roman Republic and a reconsideration of the separation of power
The argument for a proportional system to be adopted in the election of Members of Parliament in the UK seems to have gained traction recently and will perhaps grow as time goes on.[1] Although often touted as a way to solve the issue of voters feeling disconnected and unrepresented by Politicians, I fear it would be more a plaster for a gaping wound. Even with a proportional system, power would still be concentrated in a single place and, although more representative of the population, Members would still not have the time, or sometimes, expertise, insight or inclination to deal with certain issues which could be better addressed elsewhere.
The UK is one of the most centralised states in the West, most decision-making power is concentrated in Westminster and even powers which are handed out to other authorities are done so on the say of, and held in hoc by, the central Government.[2] The Brexit vote was in some way a reflection of the short comings of this system which places too much power in one place and is unable to dedicate the time needed to consider all the problems put before it in the detail these issues need to be addressed. Brexit will only make this problem worse as powers returned from Brussels look set to be hoarded in the hands of central Government.[3] With this in mind, it is worth considering ways in which this imbalance can be addressed and the reasons for doing so.
It is worth taking a moment to consider the history of the concept of the separation of powers to understand what it has been used for in the past and glean what lessons we can for the future.
Aristotle first mentions the concept of a mixed government in his work The Politics, in which he draws on numerous examples from the constitutions of the Greek city-states. The idea of what Aristotle calls mixed government[4] was to draw on the best practices of Monarchy, Aristocracy and Democracy using each to check the power of the other to render it impossible for their degenerations, Tyranny, Oligarchy and Anarchy respectively, to occur. In essence, this is an attempt to try and protect citizens from the abuse of the apparatus of the state by certain groups or individuals, whilst also allowing an effective governing structure. A Constitutional Government using a separation of powers is, therefore, one solution Aristotle offers to avoid the traps and pitfalls of the other systems, blending the best bits of each whilst mitigating the worst effects. This concept is partly reflected in the system in Britain, but it could be taken further.
Although first introduced to us as a concept by the Classical Greeks, it is in the ancient Roman Republic that we find the best example of this theory in action. A clue to this is even given in the words the Roman’s used when describing the actions of their state, SPQR — Senatus Populus Que Romanus, the Senate and the People of Rome.
The Constitution of the Roman Republic[5] is a huge subject and in and of itself from the founding of the Republic in about 509BC until the reign of Augustus beginning in about 27BC, and arguably even beyond this date. Over its long history, the Roman Constitution went through significant changes and development and therefore, a detailed analysis is way beyond the scope of this piece. However, a brief overview of the general roles, bodies and principles will suffice to illustrate the point.
Power in Rome was divided between a series of bodies known as assemblies,[6] elected Magistrates,[7] both ordinary and extraordinary, and a series of honorific titles, all backed up by a legal system based off both codified law and precedent.[8]
The assemblies of the Roman Republic used a form of direct democracy. Assemblies were taken to represent the entirety of the Roman People, even if it did not contain all of the people or actively excluded certain classes, as was the case with the Comitia Curiata.[9] According to the historian Polybius,[10] these assemblies were called upon to vote on the election of Magistrates, the enactment of Roman laws, the carrying out of capital punishment, the declaration of war and peace, and the creation of alliances. Assemblies were presided over by a Magistrate who decided on all matters of procedure and legality. Other Magistrates in attendance held the power of veto as a check on an excessive law or a wayward presiding Magistrate.
Assemblies would take a specific form depending on the issue at hand, for example the Assembly of the Tribes.[11] This Assembly split voters into voting blocs originally based on geography, but which eventually became hereditary.[12] The Assembly of the Tribes had a legislative, electoral and judicial function, its primary role being to elect three different types of Magistrates, namely Quaestors, Curule Aediles and Military Tribunes.[13]
The highest-ranking Roman Magistrates, specifically Consuls, Praetors and Censors, were elected by the Assembly of the Centuries.[14] This Assembly was principally a way of organising the Roman Army and divided citizens into voting classes based on an economic means test.[15] Only this Assembly could declare war and grant constitutional command authority to Consuls and Praetors,[16] it also served as the highest court of appeal and ratified the results of the census.[17]
The way each assembly voted is complicated, but effectively meant that the classes citizens were divided into had a real effect on the outcome of the votes, although they were deliberately designed to give the edge to the Patrician class.[18]
As you can see from these two examples, power was held by different assemblies depending on their function. The Assembly of the Tribes was used to elect low ranking officials and make civil legislation, and the Assembly of the Centuries was used to elect senior officials who would have command over Roman military units and held the ultimate power to declare war. Other assemblies also existed for other specific purposes. As such power is held in a place best qualified to hold it and where it can be most effectively exercised. Even the practice of dividing the citizen body along different lines for each vote depending on the issue meant that monolithic voting blocs, of the same constitution regardless of the matter under consideration, could not develop, again attempting to ensure that power is exercised effectively.
A second form of direct democracy was also used. Citizens of a certain class would be called into a Council focused on an issue specific to their needs and asked to vote, the Plebeian Council is the best example of this practice.[19]
This activity was all underpinned by an unofficial system known as Conventions. These were gatherings where citizens went to hear political speeches and debates, usually occurring before a vote was due in the Assembly or a Council.
The Assemblies, as outlined above, would elect the Magistrates of the Roman State, the executive branch of the Government.[20] These officials would generally serve one-year terms, introducing legislation to the various citizen bodies and presiding over their meetings, they would also oversee the day to day administration of the city and carryout public duties.[21] The election of Magistrates followed a clear cut and strictly regulated career path with individuals, generally of the Patrician class, gradually climbing the ladder of office from Military Tribune to Consul, a career known as the cursus honorum. A member of the Plebeian class also had the chance to stand as a Magistrate to the office of Tribune of the Plebs. This office, which was created out of class strife to give the Plebeians a voice, embodied the sacrosanctity of the Roman people and had the power to veto legislation and call meetings of the assemblies.[22]
In extreme situations, an extraordinary Magistrate could be appointed, known as the Dictator. This office was reserved for times of national crisis, a Dictator would be appointed during a military crisis or to carry out a very specific and urgent task. There were very strict limitations placed on the office due to paranoia about placing so much power in the hands of one man. Dictators were obliged to resign from their post either after they had carried out their task or after 6 months in office, whichever came first. Tribunes of the Plebs also maintained limited veto powers over Dictators and Dictators were expected to only operate within the sphere of their intended authority. The process of appointing a Dictator also carried checks and balances, the Senate first had to pass an advisory decree called the Senatus Consultum, the two serving Consuls would then either nominate a Dictator or draw lots for the role and this appointment would be ratified by the Comitia Curiata.[23]
This system was observed and overseen by perhaps the longest lasting political institution the Western world has ever produced, the Roman Senate.[24] Almost unique in the Western world today, the Senate was not a legislative chamber, but an advisory one.[25] It’s influence would grow and fall throughout the life of the Roman Republic, but at the height of its powers the Magistrates and, to some extent, the assemblies would defer to the advice of the Senate. The Senate was not an elected body, rather its members were appointed by Consuls, and later Censors, although any member of the Patrician class who had served a term of office as a Magistrate could expect to be appointed to the Senate.[26] Polybius says that the Senate was the predominant branch of the Roman Government and, considering that its members served as the Magistrates of the city and commanded Rome’s armies, there is no reason to doubt this was the case.[27]
Despite being an advisory institution, the Senate did hold power over financial and administrative issues and the details of foreign policy.[28] Once again this shows the way in which the power was separated in the Roman Republic. The Senate, with no direct elections to worry about or constituent concerns, could direct its attention on to the finer detail of policy that would require decades long planning and strategy to implement effectively. With the Patrician class serving as Senators and Rome’s Magistrates, a link between the formal electoral and legislative process and the day to day running of the state was maintained.
Although this system may look chaotic and disjointed, it had 500 plus years of success and independence and proved to be one of the most flexible, robust and remarkable political systems of the ancient world, with a huge impact on modern political thinking and practice.
Considering the Roman example above, the argument that the power of decision making in the UK is too concentrated, burdening Westminster with too much of the ability to make decisions but lacking the time, will or expertise to produce sensible policy answers to the myriad problems which effect the country, can be placed in a wider context of the separation of power. To compound this, the electoral system encourages monolithic party blocs to emerge that crushes nuance in debate, only increasing dogged tribalism. The addition of further direct decision-making power to Westminster if and when the UK leaves the EU will only serve to compound this problem.
Although the Roman system has many flaws, it is a useful example to begin the process of thinking of alternative ways to form, discuss and implement policy. First of all, we need to accept that, as we separate the powers of the legislature, executive and judiciary (or almost do in the UK), we also need to separate out some decision-making powers from these monolithic concepts. By doing this we would be able to place power where it can be most effectively exercised. This will mean sometimes sending powers downward to the lowest practical level, but it will also mean sending powers upward to a higher body where they can be used most effectively.
Having several layers of power will mean that legislators can have the time to examine and develop the needed expertise to understand and implement effective legislation. This will also require a willingness to be flexible, conducting regular reviews of where power lies and shifting that power accordingly.
Furthermore, a further separation of powers will bring the added benefit of a natural check on the balance of power as it is spread more widely across the political apparatus and so will be more difficult to concentrate in the hands of one party or group. On top of this, voters will feel more connected as power is exercised in bodies closer to them in which they are more easily able to participate.
Moreover, legislators and executives at the high layers of the system will have sufficient distance to consider a more long-term strategy over briefs that require timescales which stretch way beyond current election cycles. With the technology of the day, and the improvements to these systems which will inevitably come, it will be perfectly possible to involve voters more often in the consultative and deliberative process of creating and passing legislation and this will be best and most effectively exercised at as local a level as possible.
In practice, for the UK to develop its own cursus honorum, a new devolution settlement would first need to be found. Sending power down to reformed local councils, based on current local authority areas, would see them gain a wide new set of decision-making abilities over their local areas, from aspects of environment policy, to infrastructure and local housing, even extending to tax raising powers.
New technology would allow citizens to be actively engaged with the decision-making process and regular election cycles, of one year, would elect candidates to a local legislature. Populist parties in Europe have been quick to seize on new technologies to implement a form of direct democracy in their policy development and candidate selection process, Italy’s 5 Star Movement’s Rousseau system is the best example of this.[29] Using technology along the same lines, a system to allow close participation of citizens in their local legislature could be developed. Combining these technologies with the technologies being explored by Estonia in their E-Citizenship programme,[30] a new way of forming, scrutinising and seeking a mandate for policy could be possible.
Using the Local Legislature as a source of candidates, a random ballot would allocate a role within the local executive on a rotating monthly basis and a rotating monthly presidency. An appraisal at the end of the monthly rotation would be used as a quality control mechanism.
With this system used as a training ground, engaged and interested individuals would be able to move up to the next layer of the system. Candidates would be able to stand for election to a regional parliament, in the UK this could be done using the existing devolution settlement in Scotland and Wales, and once restored in Northern Ireland, and by extending this to England with regional parliaments dividing the country up on geographical, historical, cultural and population grounds. With a longer election cycle of 5 years and a proportional system.
A Regional Parliament would hold power over infrastructure, energy, environment, healthcare, any issue which can be dealt with at a regional level, and hold tax raising power. Executive positions would be filled through a concurrent presidential style election.
The National Parliament would be similarly constituted but run on a 10-year election cycle. The national parliament’s power would be focused entirely on macro financial planning and administrative issues as well as long term foreign policy goals and nationwide regulatory frameworks. Any supranational organisation the UK is a part of will of course have to be considered when designing such a system.
The system will be overseen by a National Oversight Chamber whose task it will be to provide a check on the power of the various assemblies by conducting independent performance appraisals. The oversight chamber would also provide a rolling commission assessing the positioning of powers within the system and proposing their movement to a new layer if deemed necessary. Elections to this chamber will be run on a 10-year cycle and see the nation carved up into significantly different constituencies to the local, regional and national elections.
The above suggestion is of course the bare bones of a model which could be implemented if we start to think more about a clearer separation of powers. A change in thinking and structure could provide the twin benefits of more focused legislative bodies giving clear boundaries of responsibility, the development of expertise and time to design, scrutinise, and implement legislation for legislators, as well as producing a more engaged and politically astute electorate.
[1] https://hansard.parliament.uk/Commons/2019-04-23/debates/D3B823DB-CB97-4508-8398-7ABD7E9F1609/ProportionalRepresentationHouseOfCommons
[2] https://publications.parliament.uk/pa/cm200809/cmselect/cmjust/529/52904.htm
https://iea.org.uk/on-regulation-and-centralisation-the-uks-record-is-no-better-than-the-eus/
[3] https://www.bbc.co.uk/news/uk-wales-politics-43433180
[4] Aristotle, translated by Ernest Baker, Revised with an introduction by R.F Stalley, “Politics”, Oxford University Press, Oxford, 1995, Pg151–155, 158–160, 163–164, 197–198, 200–201, 229–230
[5] Andrew Lintott, “The Constitution of the Roman Republic”, Oxford University Press, Oxford, 1999
[6] Andrew Lintott, “The Constitution of the Roman Republic”, Oxford University Press, Oxford, 1999, Pg49
[7] Andrew Lintott, “The Constitution of the Roman Republic”, Oxford University Press, Oxford, 1999, Pg104
[8] Edited by Paul J. du Plessis, Clifford Ando, Kaius Tuori, “The Oxford Handbook of Roman Law and Society”, Oxford University Press, Oxford, 2016
[9] Edited by Paul J. du Plessis, Clifford Ando, Kaius Tuori, “The Oxford Handbook of Roman Law and Society”, Oxford University Press, Oxford, 2016, Pg88
[10] Polybius, Translated by Robin Waterfield, “The Histories”, Oxford University Press, Oxford, 2010
[11] Lily Ross Taylor, “Roman Voting Assemblies: From the Hannibalic War to the Dictatorship of Caesar”, The University of Michigan Press, 1996, Pg7
[12] Andrew Lintott, “The Constitution of the Roman Republic”, Oxford University Press, Oxford, 1999, Pg51
[13] Lily Ross Taylor, “Roman Voting Assemblies: From the Hannibalic War to the Dictatorship of Caesar”, The University of Michigan Press, 1996, Pg7
[14] Frank Frost Abbott, “A History and Description of Roman Political Institutions”, Elibron Classics, 3rd edition, 1966, Pg257
[15] Colleen McCullough, “The First Man in Rome”, Avon Books, 1990, Pg943
[16] Frank Frost Abbott, “A History and Description of Roman Political Institutions”, Elibron Classics, 3rd edition, 1966, Pg257
[17] Lily Ross Taylor, “Roman Voting Assemblies: From the Hannibalic War to the Dictatorship of Caesar”, The University of Michigan Press, 1996, Pg3–4
[18] Lily Ross Taylor, “Roman Voting Assemblies: From the Hannibalic War to the Dictatorship of Caesar”, The University of Michigan Press, 1996, Pg77, Pg86
Rachel Feig Vishnia, “Roman Elections in the Age of Cicero: Society, Government, and Voting”, Routledge, Mar 12, 2012, p. 113.
[19] Frank Frost Abbott, “A History and Description of Roman Political Institutions”, Elibron Classics, 3rd edition, 1966, Pg261
[20] Andrew Lintott, “The Constitution of the Roman Republic”, Oxford University Press, Oxford, 1999, Pg104
[21] Andrew Lintott, “The Constitution of the Roman Republic”, Oxford University Press, Oxford, 1999, Pg104
[22] Frank Frost Abbott, “A History and Description of Roman Political Institutions”, Elibron Classics, 3rd edition, 1966, Pg196, Pg261
[23] Andrew Lintott, “The Constitution of the Roman Republic”, Oxford University Press, Oxford, 1999, Pg109–110
[24] Cartwright, Mark. “Roman Senate.” Ancient History Encyclopedia. Ancient History Encyclopedia, 12 Dec 2016. Web. 25 Jun 2019.
[25] Byrd, Robert, “The Senate of the Roman Republic”, U.S. Government Printing Office, Senate Document 103–23, 1995, Pg44
[26]Byrd, Robert, “The Senate of the Roman Republic”, U.S. Government Printing Office, Senate Document 103–23, 1995, Pg36
[27] Polybius, Translated by Robin Waterfield, “The Histories”, Oxford University Press, Oxford, 2010
[28] Byrd, Robert, “The Senate of the Roman Republic”, U.S. Government Printing Office, Senate Document 103–23, 1995
[29] https://www.ft.com/content/546be098-989f-11e7-a652-cde3f882dd7b
[30] https://e-estonia.com/solutions/e-identity/e-residency/
