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At first glance, the American Revolutionaries who issued the Declaration of Independence on 4 July 1776, 250 years ago, were inspired by the Roman Republic. They adopted the Roman name ‘Senate’ for the upper house of their federation, where representatives of the member states sat. The building housing the two houses, the Senate and the House of Representatives, was named the Capitol, after the Roman temple of Jupiter on the Capitoline Hill in Rome. The founders of the federation designed most major government buildings in Washington DC in a neoclassical style, including the White House, the Supreme Court, and the Capitol.
Two German Principles
On closer examination, the American Republic appears to be more a product of Germanic than of Roman political heritage. The Germanic nations followed two principles, as described by the Roman chronicler Tacitus in the first century AD and the Icelandic chronicler Snorri Sturluson in the thirteenth century: government by consent and the right of rebellion. Government by consent meant that popular assemblies elected kings, defined and revised the law, and settled disputes. The law was regarded as a common heritage, like language, that developed spontaneously rather than being imposed from above. The only lawgiver was history, not a Hammurabi, Solon, Lycurgus, or, much later, Justinian. The law relied on precedents and customs. The right of rebellion applied if the king exceeded or abused his powers under the law. Snorri’s chronicle contains many examples of this. Famously, according to Snorri, the Swedish Lawman Torgny, at an assembly in 1018, told his king Olof that if he continued to wage war against the Norwegians, he would be deposed and killed, upon which Olof yielded. In 1689, John Locke justified the Glorious Revolution, in which King James II was deposed, by reference to these two Germanic principles.
Direct and Indirect Democracy
The difference between popular sovereignty in the Athenian city-state and the Roman Republic, on the one hand, and in the Germanic and Nordic communities, on the other, was that there was no representation in Athens or Rome: they were cities, and the free male citizens decided, while women, slaves, and outsiders were excluded. In the Nordic countries, where the population was mostly rural and spread over large areas, representatives had to be sent to the assemblies. These assemblies developed into Diets of the Estates and later into parliaments, while in England the Anglo-Saxon witan, or council of wise men, abolished by the Normans, was reborn in the English Parliament of 1265, soon to form two houses.
Consultation or Participation
It is sometimes said that the Roman maxim Quod omnes similiter tangit, ab omnibus comprobetur (What affects all must be approved by all) is about government by consent. For example, John Rawls, in his Theory of Justice, quotes it as a medieval maxim to be taken seriously. But in fact, this was not an old Roman principle. It comes from the Code of Justinian, composed in the sixth century. Moreover, it was not originally a general legal maxim. It applied in inheritance cases where all multiple guardians had to consent to the end of their joint role. This maxim was, however, much later adopted by the Catholic Church as the general principle that subjects should consent to laws that affected them. In other words, it required the lawgiver to consult his subjects about such laws. But that is not the same as the Germanic principle of popular assemblies developing the law in a spontaneous process of adjustments and revisions.
The Value of Representative Democracy
It is true that St. Thomas Aquinas taught that the power of kings was limited by natural law and that a king could be deposed if he became a tyrant. But he was not speaking about the Roman Republic. The idea of a representative democracy derives from ancient Germanic principles of government by consent and the right of rebellion, in which consent is expressed through free elections at regular intervals and the right of rebellion has been transformed into the right to vote against a government. As Karl Popper observed, the main value of democracy is that a bad government can be removed without bloodshed.