GBroad concepts of the political also have the function of ordering conditions or showing changes in a direction, thus giving actors and interpreters something that gives meaning to the always diverse, contradictory, often chaotic reality. Their archeology often unearths misunderstandings or conscious shifts in meaning without the established tradition being simply cleared away. The lawyer Henner Jörg Boehl now provides an example in a conceptual and conceptual search for traces of (extraordinary) constitutive violence (“Tresviri rei publicae constituendae” – From the origin of the Pouvoir Constituant in the Roman Revolution, in: Der Staat, vol. 60, issue 4, 2021 / Duncker & Humblot).
The first stage of genesis is clear. After the violent end of the two Gracchi brothers and the first civil war a generation later, Cicero’s writings contain the idea that the grown public order of Rome, the res publica, could temporarily cease to exist under the spell of naked violence: res publica amissa (not coincidentally the title from Christian Meier’s groundbreaking 1966 study). Efforts to (re)establish order after the “un-state” should therefore be considered. Cicero used the verb “constituere” in his work “De re publica” and repeated it to Caesar a few years later when he asked him “ut rem publicam constituas”. What was meant by this was to get the traditional political system going again after a temporary suspension, above all political control by the nobility in the Senate and free play in the annual elections.
Dictatorship as office or fact
So Cicero’s vanishing point was no other, but the old, ancestral order. However, both in Scipio’s dream and in Caesar’s reality, this should be accomplished by a dictator with unlimited powers, since such an act obviously required considerable assertiveness. It was precisely this prerequisite that proved to be compatible: when in 43 Antony, Octavian and Lepidus came together to form the alliance of Caesarians against the arming murderers of Caesar, they had the official designation “three-man college for the establishment of public order” (tresviri rei publicae constituendae) by a formal popular vote. to lend. This was essentially a collective military dictatorship, relying on soldiers and funds stolen by kill lists to win a civil war. In the context of the political order, it was a matter of endowing those in power with universally valid, comprehensive powers that the staggered and restrictive office system of the republic, including the republican office of the dictator, did not allow.
However, in Boehl’s recapitulation of ancient historical research, it is hardly clear how unsuitable the empowering formula of the triumvirate appeared to be for establishing a peaceful order after the renewed excesses of violence and civil war. That is why Octavian referred to a general unanimity in Italy ten years later and then coined formulas around a “restituere”. After his transformation into Augustus, he spoke of “setting at liberty” or “returning to the disposal of the senate and people”.
In the second volume of Theodor Mommsen’s “Roman State Law”, the legal gerund then mutated from the bent, makeshift formula used only a few years to conceal the unlimited exercise of power and violence to the almost magical myth of the origin of a discontinuous order in the modern age. Against the background of the republican-revolutionary constitutional thinking of the American founding fathers and of minds like Emmanuel Sieyès, the legal systematist assigned the aforementioned (Second) Triumvirate together with completely different cases to a construct called “extraordinary constituent powers” in a brief, daring chapter – for him a “remedial remedy” by the way, and often a worse calamity than that which it was intended to remedy.
Constituere, constituenden, constituant – the lexical correspondence has not only tempted lawyers to establish continuity, but even to equate it. But Boehl is rightly cautious: neither did “rem publicam constituere” mean a constitution in the modern sense, nor did the modern revolutionaries derive their authorization for a new beginning directly from a Roman model. However, the common reference to the Roman origins of our terms connects the European constitutional cultures. With a view to the context of its origins in the Roman Revolution and its modern namesakes, but especially in the radicalization by Carl Schmitt, the doctrine of the Pouvoir Constituant proves in Boehl’s eyes “as theory and practice from dangerous times for dangerous times, but also as dangerous theory”.