Bringing the Mixed Constitution Back In

No doubt exists that the separation of powers is a fundamental architectural principle in Canadian public law jurisprudence. But what about the idea of a mixed constitution? A simple CanLII search for “mixed constitution” turns up six cases. In five1 of these cases, the search reveals the following phrases: “pre-mix constituted goods,” “the mix constituting the excavated material,” “the Owners’ mixes constitute ‘bread and rolls’,” “the improper mixing constituted a fraudulent misrepresentation,” and “quality control for the asphalt mix constituted.” Clearly baking and aggregate blends figure largely in constituted mixes, but the constitutional jurisprudential sense is largely absent. That said, concerns about pre-mixing, constituted goods, excavating, improper mixing, and quality control do have some salience for the discussion that follows.

Civic Freedom in Plato’s Laws

In Book 3 of Plato’s Laws, we read that a legislator must aim to endow the polis with a trio of properties: freedom, wisdom, and internal friendship (philia). This paper explores what such freedom consists in, with a focus on the so-called doctrine of the mixed constitution. It argues that such freedom is a constitutional matter; that it is not to be identified with ‘voluntary servitude to the laws’ cultivated by persuasive preludes to the laws; nor is it the rational self-control essential to virtuous character, or citizens’ ability to decide and act for themselves; nor is it a restriction on the size of individual political authority. Rather, it is a freedom based on equality: a polis is free to the extent that its constitution mitigates the inherent inequality between rulers (archontes) and ruled (archomenoi), between those who wield political authority and those who are subject to that authority.

Philosophical Perspectives on Eunomia

This contribution analyses the ancient Greek notion of eunomia in the philosophical prose literature of the fourth century BC. While the term eunomia is often translated as ‘good government’ or ‘good order’, such vague translations fail to capture the specifics of eunomia, and thus part of the philosophical debate about constitutions is lost. Closer inspection reveals that within the fourth-century constitutional debate, eunomia entails two distinct aspects: the excellence of the laws and their durability. These two aspects are predicated of various constitutions: the mixed constitution, of which Sparta and Crete are primary examples in the fourth century; the Athenian democracy as a paradigm of law-abidingness; and philosophical constitutions aiming at virtue. It is a hallmark of the last that such law codes start from marriage and childbirth and follow the course of human life.

Government

In On the commonwealth Cicero explores three main ideas, discussed here in turn. First introduced is the concept of a res publica itself, held together as an association of citizens by the justice inherent in a fairly based legal order. Then Cicero stresses the consilium (deliberation) needed to govern it, and above all secure and maintain its stability, with the recipe a ‘mixed’ system of government such as Republican Rome had historically evolved. Finally, he turns to the leadership required to supply that consilium and to carry it through in action, whether in the ordinary functioning of the res publica or in moments of crisis when its integrity is threatened and a ‘director (rector) of the commonwealth and initiator of public consilium’ is needed. On laws presents and defends a more detailed account of the roles particularly of senate and people, and of their interaction, within the mixed constitution.

Authority and Power in Russia

Can classical political theories of mixed constitution from Polybius to Cicero help us shed new light on Russian politics? In order to so, this article first considers political structures of such non-parliamentary republics as medieval Novgorod and Venice, while choosing Constantinople as a basis for their comparison. Second, using Anthony Kaldellis's recent book that has reinterpreted Byzantium in terms of the classical theory of res publica, it analyzes the question of auctoritas in ancient republican Rome and then imperial Constantinople. Third, the author employs Giorgio Agamben's book on the state of exception, in order to see how mechanisms of power and authority that the Roman emperors had employed might help us interpret anew the phenomenon of tsardom, given that Ivan the Terrible was the first in Russia to be crowned as tsar, that is, Ceasar. This might have a lasting significance even for present day politics.

Teoria politica e scrittura storiografica nei ‘libri imperiali’ della Storia Romana di Cassio Dione

This paper investigates to what extent the emergence of the princeps shapes Dio’s narrative. The best fitting passages for investigating this topic are the so called “anectodical-biographical sections”, which cannot be utterly dismissed as pieces of imperial biography: it would be better to consider those sections as devoted to the evaluation of the emperor’s praxis of government on a very concrete (rather that moralistic) ground. These narrative proceedings betray the existence of a well-structured framework lying beneath the work’s building in terms of political thought. In fact, Dio develops a consistent perspective about the relationship he expected between the princeps and the senate, fashioned, to my mind, by the princeps civilis model. This paradigm is sustained by a very classical political theory, although remoulded: the ‘mixed constitution’ theory.

Self-Limitation and Democracy Lefort’s Model of Council Democracy

This chapter explores the theory of council democracy developed by the French political thinker Claude Lefort. Like his onetime compatriot in Socialisme ou Barberie, Cornelius Castoriadis, Lefort also developed an early and a late theory of council democracy. While Lefort and Castoriadis were basically in agreement on the principles of council democracy at the time of Hungarian Revolution of 1956, while they were both members of Socialisme ou Barberie, Lefort provided a markedly different analysis of the council system after he broke with Socialisme ou Barberie and developed with famous theory of the democracy as the empty place of power. In Lefort’s late theorisation of council democracy, the councils collaborate with trade unions and political parties to make up a conglomerated, federalised polity, which is founded upon the principles of self-limitation and mixed constitution. While liberal interpretations of Lefort have stressed how representative, parliamentary government is the best expression of ‘the empty place of power’ and radical democratic interpretations have argued of inherent hostility between democracy and institutions in Lefort’s writings, this chapter argues that Lefort’s theory of council democracy could productively be understood as an institutional approximation of democracy as an empty place of power.

Contemporary Plebeian Thought

This chapter highlights plebeianism as a political philosophy in the works of Martin Breaugh and Jeffrey Green and provides an in-depth analysis of recent attempts at retrieving the mixed constitution and proposing institutional innovations by John McCormick and Lawrence Hamilton. It looks at McCormick's proposals to revive the office of the Tribunate of the Plebs and bring back plebeian power to exert extraordinary punishment against agents of corruption. It also argues that McCormick's radical republican interpretation of Niccolò Machiavelli places class struggle, the threat of plutocracy, and the need for popular institutions to control the rich at the center of material constitutionalism. The chapter explores the illiberal nature of McCormick's proposals and the legitimacy problems arising from lottery as mode of selection. It explores Hamilton's proposal to combine consulting participatory institutions with an updated tribune of the plebs and a plebeian electoral procedure.

Arendt on the Republic of Parties and Councils

This chapter analyzes Hannah Arendt's intellectual relation with Rosa Luxemburg's work, including her critique of the American founding and her proposal for establishing a council system. It analyzes Arendt's most controversial, understudied, and misinterpreted work, On Revolution, which was conceived after her engagement with Luxemburg's critical essay on the Russian Revolution. It recounts Arendt's view on how the revolutionary spirit was lost and the government became mere administration at the moment when the founders focused on representation, and neglected to incorporate the township and the town-hall meeting into the Constitution. The chapter talks about Arendt's support of the council system as an alternative form of government aimed at the continual reintroduction of freedom as action in a public realm dominated by administration. It describes Arendt's proposal of the mixed constitution, in which parties are dedicated to administration and councils are dedicated to political judgment.

Elitist Interpretations of the Republic

This chapter traces the intellectual history and institutional iterations of the theory of the mixed constitution that originated as a critique of monocratic constitutions and offered a realist redress for systemic corruption based on the institutionalization of different forms of social power. It offers the genealogy of an elitist-proceduralist strand commenced by Polybius and Cicero, reinterpreted by Montesquieu, constitutionalized by Madison, and brought to its highest level of philosophical sophistication by Philip Pettit. It also analyses a plebeian-materialist strand originating in the political experience of the plebs within the ancient Roman republic and continuing in Niccolò Machiavelli's interpretation of the political praxis of the popolo during the Florentine republic. The chapter makes the distinction between elitist and plebeian constitutions based on who has final decision-making power in a given framework. It provides a visual representation of constitutional orders to better understand the distribution of powers and compare between different models of republics.