At the start of Federalist Papers 47, Madison (writing as Publius) notes that there are two ways of conceptualizing the mixed constitution or the division of powers: one (which he associates with the respectable critics of his own proposal) is conceptualized by the following “maxim:” that “the legislative, executive, and judiciary departments ought to be separate and distinct.” This conceives of separation of powers as three distinct pillars or billiard balls with a motion of their own, but where through their interactions (or checks) the system maintains a kind of equilibrium or balance.
The alternative view, which Madison associates with Montesquieu’s interpretation of the “British constitution,” allows “that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other.” For example, (and here Madison is pretty much echoing The Spirit of the Laws, book 11 chapter 6) “the executive magistrate forms an integral part of the legislative authority.” Rather the aim of such blending is (again echoing Montesquieu) to prevent that “the WHOLE power of one [branch/power] is exercised by the same hands which possess the WHOLE power of another.” As Montesquieu puts it, “All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”
Let’s grant that these are two distinct ideal types. Both aim at the prevention of tyranny and the preservation of liberty.
It is somewhat of a truism of scholarship that the ‘balance’ view originates (via an amplification of Machiavelli) with Polybius. To be sure, it is widely acknowledged that in Polybius the component parts of the system that balance are not about the differentiation of governmental powers or branches, but rather about social classes. (See, for example, Richard Bellamy "The political form of the constitution: the separation of powers, rights and representative democracy." The Rule of Law and the Separation of Powers. 257-8).
So much for set up.
Now, when we go to Polybius’s Book 6 of the Histories, we quickly notice that he attributes the balancing view to the Spartan constitution. I quote a famous passage (in the old 1889 translation by Evelyn S. Shuckburgh): “Lycurgus…combined together all the excellences and distinctive features of the best constitutions, that no part should become unduly predominant, and be perverted into its kindred vice; and that, each power being checked by the others, no one part should turn the scale or decisively out-balance the others; but that, by being accurately adjusted and in exact equilibrium, the whole might remain long steady like a ship sailing close to the wind.”* (6.10) Part of the checking mechanism that Polybius goes on to identify here is the fear of domination by another social class.
Now, before I continue two further observations on Polybius’ treatment of Sparta: first, he treats the constitution as defective if one is interested in expansive power. Sparta’s constitution prevents it from being a hegemonic or projective power outside its own region. Second, he treats Lycurgus as a kind of philosophic legislator who through abstract reasoning gets it right in advance.
Sparta is important to Polybius’ discussion because its constitution is a contrast to (or at least highly distinct from) the constitution of Rome (in Polybius’ own age). First, and this is also important to Machiavelli, Rome’s constitution is the (unintended) effect of social learning through history and continuous on-going adjustment in the face of adversity. (6.10) Second, and this is the argument of the whole Histories, Rome is uniquely capable of projecting power anywhere. It lacks the inherent demographic and economic constraints that characterized Sparta.
This last point is rather important to Polybius, and also gets me to the issue I want to highlight: lurking in Polybius is a kind of blending between constitutional/systemic analysis with a kind of alertness to the significance of political economy. (And by this I don’t just mean the ability to fund war preparation or large navies.) And this blended analysis of institutions with political economy shapes his treatment of the mixed constitution of Rome. Or so I argue now.
So, Polybius starts his account of the Roman constitution by suggesting it has three distinct powers (consuls, senate, tribune) that in virtue of their distinctness are kept in equilibrium. (6.11) And, when he discusses the consuls (the monarchic element, which we would treat as executive power) his account seems familiar enough.
But when he turns to the (aristocratic) Senate, Polybius emphasizes that it has power over the purse. (See, e.g., Richard Jankowski 2021). And, in particular, that it controls expenses on public works. (6.13)+ And he re-emphasizes the senate's power of the purse when he discusses the power of the tribunes (6.14), and the war-making capacity of the consuls (6.15).
But it turns out that the senate’s control over public works is more significant than one might imagine. Polybius goes into great detail. I quote
In like manner the people on its part is far from being independent of the Senate, and is bound to take its wishes into account both collectively and individually. For contracts, too numerous to count, are given out by the censors in all parts of Italy for the repairs or construction of public buildings; there is also the collection of revenue from many rivers, harbours, gardens, mines, and land—everything, in a word, that comes under the control of the Roman government: and in all these the people at large are engaged; so that there is scarcely a man, so to speak, who is not interested either as a contractor or as being employed in the works. For some purchase the contracts from the censors for themselves; and others go partners with them; while others again go security for these contractors, or actually pledge their property to the treasury for them. Now over all these transactions the Senate has absolute control. It can grant an extension of time; and in case of unforeseen accident can relieve the contractors from a portion of their obligation, or release them from it altogether, if they are absolutely unable to fulfil it. And there are many details in which the Senate can inflict great hardships, or, on the other hand, grant great indulgences to the contractors: for in every case the appeal is to it. (6.17)
That is to say, and to put it anachronistically, the Senate’s domestic power is expressed in and also made possible by its control over the economy as a source of income and rents to pretty much everyone (other than slaves and women): “all citizens are much at its mercy; and being alarmed at the uncertainty as to when they may need its aid, are cautious about resisting or actively opposing its will.” That is to say, the Senate is at the center of a complex web of economic patronage and clientalism as well as, one may add, credit-debt obligations in which it functions as ultimate source of legal authority. (On this point see Claude Nicolet (1971) Irish Jurist 6.1 (1971): 163-176.)
My interest here is to note that in Polybius’ hands the Roman constitution is not one in which the distinct powers and forces are unblended and wholly distinct. Rather they are blended in all kinds of ways (see 6.18: “the mutual interdependency of all the three”), including — and I have highlighted it here a bit in one-sided fashion — in economic, even financial affairs.
That’s all I wanted to say today. But Polybius here gives us some evidence into thinking that even the most martial of ancient republics were shaped, in part, by what we might call their economic constitutional structures.
+He then notes that it is also it has key judicial functions and controls governance of the Empire as well as its foreign policy.
I conjecture that this balance as a means of achieving a liberal constitutional democracy is poorly implemented by a coercive majority-rule one person one vote, winners-take-all, public decision mechanism that awards gain to the winners, and imposes uncompensated loss on the losers. This seems to motivate voters to form factional coalitions with like-minded others to assemble a majority. This strategizing result seems to be economically wasteful. My conjecture is that it is a consequence of the inability of voters to express their intensity of preference in political/social choice. Such seems not the case for the private sector market economy in which we observe more of a continuum of outcomes. With Ryan Oprea and Abel Winn, we have an experimental paper in PNAS where subjects choose between a proposition -A or not-A (for example a zoning law change that will lower the value of some property, raise that of others) by each submitting a bid expressing their willingness to pay for their preferred option. The winning outcome is that option for which the sum of bids is largest. Since, by definition, the winning sum is larger than the losing sum, each loser can be compensated in the amount they said they were willing to pay. We examine some empirical properties of this public decision mechanism for a small (N=6) and a large (N = 18), collective, under even, close, and landslide cases based on the distribution a values assigned by the experimenters to the Ss. [Equality of means for all might be implemented by giving each citizen the same endowment of bidding currency, say 1000 units.] "C:\Users\vsmith\OneDrive - Chapman University\From_Dropbox\Vernon's Papers (from Expec, etc)\A Compensation Election for Binary Social Choice_oprea-et-al-2007.pdf"