—Bryan Dennis G. Tiojanco, Project Associate Professor, University of Tokyo, Graduate Schools for Law and Politics. Twitter: @botiojanco
[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]
Last month MIT News reported that we have finally opened a window to why ancient Roman concrete structures can last thousands of years, while modern ones crumble after only a few decades. The key was the curious presence of tiny lime clasts scattered about in Roman concretes:
Previously disregarded as merely evidence of sloppy mixing practices, or poor-quality raw materials, the new study suggests that these tiny lime clasts gave the concrete a previously unrecognized self-healing capability.
In crude summary: the ancient Romans hot-mixed their concrete so that “[a]s soon as tiny cracks start to form within” them the lime clasts jumpstart chemical reactions which “automatically heal the cracks before they spread.”
Ancient Roman concrete structures are still with us: tourists routinely overcrowd the Pantheon, and Rome continues to receive water from its ancient aqueducts. The Roman Republic, in contrast, collapsed more than 2,000 years ago in 44BCE. But as Robert Dahl points out, it “endured…longer than any modern democracy has yet endured”.[1] Between the fall of the Tarquins and the assassination of Julius Caesar, the Roman Republic thrived for 465 years.[2] To compare: the U.S. Constitution has been in force for 233 years; the written constitutions of most other “older democracies” for around 80 years.[3]
Little wonder, then, that previous philosophers of liberty consulted the constitution of the Roman Republic[4] during times of political crises. Hence Machiavelli’s Discourses on Livy, the great Roman historian (which I discussed in a previous post). Similarly, in the 17th century during the English civil wars James Harrington proclaimed it “necessary that the archives of ancient prudence should be ransacked” for lessons on how to establish a constitutional authority which could restore lasting peace and order.[5] Hannah Arendt, too, drew on Roman thought to make sense of the breakdown of political authority which had accompanied the rise of fascism, communism, and totalitarianism in the 20th century.[6]
Like them we are again at a Machiavellian moment, in both senses of the term: political crises across the globe are today threatening liberal constitutional democracies, and scholarly works abound diagnosing these crises and prescribing cures. One thing all these thinkers learned from Rome is that, just like its concrete, the Roman Republic too owed its remarkable endurance to structural features which gave it a self-healing capability. In crude summary: the ancient Romans mixed governmental forms so that as soon as tiny cracks start to form within them its structures jumpstart political reactions which automatically heal the cracks before they spread.
The key is the mixed constitution, which combines institutions of monarchy, aristocracy, and democracy into a system of government where each checks the others.[7] Polybius, the first to theorize it, blamed constitutional collapse on unchecked power in government as “a source of corruption growing within it”.[8] Rome’s mixed constitution nips this source in the bud by empowering the consuls, the Senate, and the people to each help or check the others so that when “one of the estates…pushes itself forward and tries to gain the upper hand over the others…the designs of each of them can be effectively counteracted and hampered by the others”—especially since “none of them is self-sufficient”.[9]
Hobbes blamed the collapse of the Roman Republic on Polybian mixed constitution, in particular “the warres between the Senate and the People”.[10] Machiavelli, in contrast, argued that these conflicts were the wellspring of Roman freedom.[11] Like Polybius he argued that the mixed constitution counteracted corruption. Republics are liable to corruption, says Machiavelli, which “will, of necessity, kill that body” “if something does not come about to bring it back to its proper limits”.[12] He identified the people’s tribunes as one of the main institutions that kept the Roman Republic in proper proportion; its power to publicly indict citizens either terrified nobles from attempting to corrupt the government, or enabled such attempts to be swiftly suppressed.[13]
Even before Polybius, Aristotle had already recognized socioeconomic pluralism as a main attraction of mixed constitutions.[14] In the early 1640s this idea was used to reinterpret the English constitution as preventing either the king, the lords, or the commons from exercising governmental power alone without the cooperation of the other estates.[15] Montesquieu relied on this reinterpretation to praise the separation of powers for giving various social groups multiple channels for political participation and strong incentives to do so.[16] This is why he criticized the Venetian Republic for separating the legislative, executive, and judicial powers in the council, the pregadi, and the quarantia, respectively, but filling each with “magistrates all belonging to the same body; which constitutes almost one and the same power.”[17]
The separation of powers handed down to us therefore presents a puzzle. As Yasuo Hasebe points out, Montesquieu “presupposes the existence of different social classes, the re-establishment of which our modern, levelled society would not tolerate.”[18] How, then, can the self-healing capability of the mixed constitution do its work in a modern democratic society?
Hasebe suggests we look to Tocqueville,[19] who wrote that “[i]n democratic countries, political associations form so to speak the only powerful particular persons who aspire to regulate the state.”[20] Participating in these associations, says Tocqueville, teaches citizens the practices, benefits, and mindset of democratic citizenship.[21] These are crucial lessons for our times, when young people across the globe have become far less committed to democracy (and far more open to authoritarian alternatives) than our parents or grandparents.[22] Nine of ten citizens in Sweden, one of the freest democracies in the world,[23] for example, are members of at least one association.[24] But how do we get plenty enough citizens in other democracies to participate in political associations when we can’t even rely on a lot of them to vote?[25] Tocqueville drew the answer from his study of the American township system during his time: “scatter power in order to interest more people in public things.”[26]
Outside of Vermont, the traditional town meeting has all but disappeared in the United States.[27] But as Heather Gerken points out, public power in the U.S. remains scattered in various other institutions—such as juries, school committees, local governments, and even states—which give multiple points of access to political institutions for various national minorities to enjoy majority decisionmaking power in local decisionmaking bodies.[28] In my other published works I also highlight what we may call the people power provisions of the 1987 Philippine Constitution, which similarly scatter power by giving multiple channels for political participation to various kinds of citizens: workers; farmers; the urban and rural poor; people’s organizations; nongovernmental, community-based, or sectoral organizations; etc.[29] These people power provisions have propelled several spectacular success stories.[30] They also give hope amid our Machiavellian moment that democracies can still self-heal in our modern times.
Suggested citation: Bryan Dennis G. Tiojanco, Self-healing Constitutions, Feb. 8, 2023, at: http://www.iconnectblog.com/2023/02/self-healing-constitutions/
[1]Robert A. Dahl, On Democracy: with a New Preface, an Introduction, and Two Chapters by Ian Shapiro 14 (2020).
[2]Mary Beard, SPQR: A History of Ancient Rome 563–568 (Reprint ed. 2016).
[3] Dahl, supra note 1 at 138.
[4] As well as of two longer lived republics: Sparta and Venice.
[5] James Harrington, “The Commonwealth of Oceana” and “A System of Politics” 69 (J. G. A. Pocock ed., 1992).
[6] Hannah Arendt, Between Past and Future 91–141 (Revised ed. 2006).
[7] Niccolo Machiavelli, Discourses on Livy 26 (Julia Conaway Bondanella & Peter Bondanella trans., 2009).
[8] Polybius, The Histories 378 (Robin Waterfield tran., 2010).
[9] Polybius, supra note 8 at 385.
[10] Thomas Hobbes, quoted in Arihiro Fukuda, Sovereignty and the Sword: Harrington, Hobbes, and Mixed Government in the English Civil Wars 57 (New ed. 1998).
[11] Machiavelli,supra note 7 at 29.
[12] Machiavelli, supra note 7 at 246.
[13] Machiavelli, supra note 7 at 38.
[14] Aristotle, Aristotle’s Politics: Writings from the Complete Works: Politics – Economics – Constitution of Athens 48 (Jonathan Barnes ed., 2016).
[15] Fukuda, supra note 11 at 22.
[16] Alan Ryan, On Politics: A History of Political Thought from Herodotus to the Present 530 (2012).
[17] Charles de Secondat baron de Montesquieu, The Spirit of Laws: Complete Edition 153 (Thomas Nugent tran., 2011).
[18] Yasuo Hasebe, Towards a Normal Constitutional State: The Trajectory of Japanese Constitutionalism 118 (2022).
[19] Id. at 120; See also Andrew Sabl, Community Organizing as Tocquevillean Politics: The Art, Practices, and Ethos of Association, 46 American Journal of Political Science 1, 3–5 (2002).
[20] Alexis de Tocqueville, Democracy in America 499 (Harvey C. Mansfield & Delba Winthrop trans., 2002).
[21] Id. at 497.
[22] Yascha Mounk, The People vs. Democracy: Why Our Freedom Is in Danger and How to Save It 115–123 (2019).
[23] Sweden: Freedom in the World 2022 Country Report, Freedom House, https://freedomhouse.org/country/sweden/freedom-world/2022 (last visited Feb 6, 2023); cf. Still Top of the Class? Sweden’s Democracy in a Global Perspective | International IDEA, https://www.idea.int/news-media/news/still-top-class-sweden-democracy-global-perspective (last visited Feb 6, 2023).
[24] Torbjörn Larsson & Henry Bäck, Governing and Governance in Sweden 97 (2008).
[25] Voter Turnout by Country 2023, https://worldpopulationreview.com/country-rankings/voter-turnout-by-country (last visited Feb 6, 2023).
[26] Tocqueville, supra note 23 at 64.
[27] Dahl, supra note 1 at 110–111.
[28] Heather Gerken, Dissenting by Deciding, Paper 355 in Faculty Scholarship Series, 1748 (2005), http://digitalcommons.law.yale.edu/fss_papers/355.
[29] e.g., Bryan Dennis Tiojanco, The Philippine People Power Constitution: Social Cohesion through Integrated Diversity, in Pluralist Constitutions in Southeast Asia 251 (Jaclyn Neo & Bui Ngoc Son eds., 2019); Bryan Dennis Tiojanco, Gender, Sexuality, and Constitutionalism in the Philippines, in Gender, Sexuality and Constitutionalism in Asia (Kelley Loper et al. eds., 2024); Bryan Dennis Tiojanco, The Making of the 1987 Philippine Constitution, in Asian Comparative Constitutional Law: Constitution-making 223 (Ngoc Son Bui & Mara Malagodi eds., 2023).
[30] see, e.g., Transforming Local Government, (Maria Regina Hechanova, Mendiola Teng-Calleja, & Edna Franco eds., 2017).
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