8 Cicero's Conception of

Liberty
French, American, English, and Italian republicanism all shared a common
origin in republican Rome. All looked more to Rome in defining their con-
ceptions of liberty than they did to each other, and it is only insofar as they
share this common Roman element that subsequent ideologies can prop-
erly be considered "republican" at all, in any useful or coherent sense of
the term "republic." This makes the Roman conception of libertas particu-
larly important in understanding republican liberty elsewhere. Roman
ideas of liberty appear throughout Livy and particularly in his aphorisms
on the tiber populus Romanus (free Roman people) and the tranquilla
moderatio of its imperia legum (empire of laws) 1 But Marcus Tullius
Cicero gave the idea of Roman liberty its most detailed elaboration, in his
works "On the Republic" and "On the Laws." 2
Cicero defines libertas in his discourse de re publica as life without a
master. Thus, liberty and monarchy are incompatible. Even if a king were
just, he would still be a master and his people would not be free. 3 Civic
libertas requires popular participation in governmental power and public
deliberation about the common good. So aristocracies cannot be free
either, because they deny the power of the people. 4 Cicero made his hero,
Scipio, explicitly acknowledge that liberty can exist only where the people
(populus) hold supreme power. But this is not "liberty" at all, unless it
preserves equal rights for everyone. 5 Not that Cicero favored general
equality. He criticized Athenian democracy as excessive, because it over-
looked appropriate distinctions in rank, to the ultimate detriment of the
people. 6 Cicero favored elections to choose the best (optimum) men as
magistrates. He argued that a free people (liber populus) will select men of
virtue (virtus) as leaders, to protect the common welfare of the state. 7 Men
of virtue will impose no law upon the people which they do not obey
themselves. Their virtue consists in not being slaves to any passion. As
leaders of the state, virtuous men should train the people by example to
share in their good qualities. 8
Liberty, virtue, and the republic were closely allied concepts in Cicero's
political and legal philosophy, inasmuch as republican government secures
virtuous magistrates, who in turn preserve just laws and the liberty of the
people. 9 Cicero's basic definition of a republic was as the property of the

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© M.N.S. Sellers 1998
44 The Sacred Fire of Liberty
people (res publica res populi), and not just any group of people. The
republican populus must be a large group brought together in search of a
shared sense of justice (iuris consensus) and pursuit of the common good
(utilitatis communio). 10 Cicero identified three possible simple forms of
government- monarchy, aristocracy, and democracy- but suggested that
the ideal republican constitution would mix them all together.ll He consid-
ered the strength of monarchy to rest on the virtue of its leader, identified
aristocracy with the wisdom of the few, and attributed liberty to the power
of the people. 12 Monarchies, however rich or well run, cannot be republics
because nothing belongs to the people (res populi) and there is no "con-
sensus" or "society" of justice beyond the individual desires of the king. 13
Aristocracies cannot be republics either, because they deny the res populi
by favoring the few; 14 nor can democracies, despite the association of the
populus with liberty and the res populi. The despotism of the many is no
better than the domination of a few, or of a single monarch. Cicero
described Laelius as insisting that the populus does not exist at all unless it
acts in pursuit of justice. Otherwise libertas sinks into licentia (license),
and the mob becomes a tyrant. 15
This leaves the question of what it is to act in pursuit of a shared sense
of justice (consensus iuris). 16 If all simple forms of government descend
into tyranny, then mixed states offer the most stabilityY Cicero believed
that they are also most productive of justice, which my often owe as much
to government as it does to the laws of nature. 18 Rome's particular mixed
constitution had developed an ideal balance between the power (potestas)
of the magistrates, the authority (auctoritas) of the senate and the liberty
(libertas) of the people, to establish and maintain the community of justice
(iuris communio), without which republics cannot exist. 19 Cicero believed
that such a constitution offered more stability and equality than any other
form of government 20 because it provided an equal mixture of the three
basic civic elements, as in Rome. 21 This "harmony" of dissimilar roles pre-
served the concord of the state, and maintained the strongest possible bond
of civic union, under the governance of justice (iustitia). 22
Cicero advocated the sovereignty of the people in the Roman republic,
the authority of the senate, and the power of the magistrates, because they
jointly served to perpetuate the search for common good and justice that
characterizes republican government. If they ceased to do so, their laws
would be invalid. Cicero considered true law (vera lex) to be right reason
(recta ratio) in agreement with nature, perpetual and applicable to every-
one. Neither the people nor the senate can free us from our obligations,
which everyone ought to be able to perceive without the help of a judge or
lawyer. 23 For Cicero, the purpose of the magistrates, senate, and popular
 Cicero's Conception of Liberty 45
assembly was to govern citizens as the mind governs the body, in pursuit
of reason, and not as a master governs slaves. To act as a master over
people who are capable of governing themselves would be unjust
(iniusta),24 and violate the meaning of res publica, which is the bond of
justice (vinculum iuris) and service to the people. 25 Cicero insisted that
the Roman state of his era, while retaining the form of a republic, had lost
the substance. 26 Yet a good life is impossible without a res publica, and
there is nothing more conducive to happiness than a well-constituted
state. 27 So when the Romans lost their liberty, they lost their virtue and
their happiness as well. 28
Cicero rested his argument for civic liberty under a republican govern-
ment on the belief that nature (natura) has instilled the human race with an
innate love of virtue (virtus) and the common good (communis salus). 29
The noblest use of this virtue would be in public affairs 30 to induce the
people to do of their own accord what the laws require of them anyway. 31
When Cicero wrote of law (lex) in this context he meant the rules that
unite society, and make justice (ius) the same for ali.3 2 This was the
subject of his second great jurisprudential work, de legibus, which set out
to propose laws for the ideal state Cicero had advocated in his earlier book
de republica. 33 De legibus defined law as the highest reason, inherent in
nature (natura). 34 Cicero considered this innate standard in the human
mind the ultimate measure of justice and injustice. 35 Because all people
have reason (ratio) in common, law and justice should also be common to
mankind, and all humans members of a single commonwealth. 36 If virtue
(virtus) is the perfection of nature 37 and reason is common to humanity,
then all people have the possibility of virtue, and there should be a single
justice for all. 38
Universal human reason and mankind's aptitude for virtue justified
Cicero's conception of republican liberty by making public deliberation
the best measure of what is right. 39 But humans are also subject to corrup-
tion by shared vices and desires that obscure the common good. 40 If living
according to virtue, nature, and right reason is the highest good for
humans, then the foremost aim of every citizen ought to be to follow the
laws that liberate us all from the dominion of our passions. 41 This means
the laws of God, which do not necessarily correspond with written
statutes. 42 Cicero believed that the commands of the magistrates are
usually the best evidence we have of God's will, 43 at least among "free"
peoples (liberi populi). 44 To maintain the justice of the civil law, Cicero
wanted rotation in office, 45 a limitation of at least ten years on holding the
same office twice, 46 and a senate made up of ex-magistrates. 47 No one
should enjoy immunity from any statute,48 and the governing structure of
46 The Sacred Fire of Liberty
the republic should rest on the power (potestas) of the people, subject to
the moral authority (auctoritas) of the senate. 49 Cicero recognized voting
as the essence and best defense of liberty (vindex libertatis), but wanted
it structured in such a way that the passions of the people would be
controlled by the "better" and wiser citizens. 5°
Many doubt the sincerity with which Cicero proposed the species liber-
tatis of his mixed and balanced republic. 5 1 But the essence of the liberty
Cicero offered remains clear, not only in his philosophical works, but in
his legal and political speeches as well. 52 Cicero identified liberty with the
laws, and blamed the loss of both on Caesar. 53 With Caesar's advent the
republic ended, 54 and so did justice and the search for nature's reason,
which is the common good and proper source of human law. 55 Liberty,
virtue, the republic, popular sovereignty, mixed government, the rule of
law, justice, and the common good were all united in Cicero's legal and
political thought. Libertas required the vote, but only if voting was guided
by the senate to secure virtuous magistrates who would pursue the
common good through general laws, applied equally to all citizens. No
liberty was possible without justice and equality before the law, but this in
turn could best be secured by the characteristically "republican" constitu-
tion of a senate, elected magistrates, and sovereign popular assembly.
Cicero's conception of republican liberty meant freedom from passion and
dominion through obedience to law, when law reflects the sincere deliber-
ation of a mature republican community. Cicero knew no liberty outside
the republic, just the passions of tyrants and the license of the mob.