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Copyright (c) 2013 Yeshiva University
Cardozo Law Review

SYMPOSIUM: CONSTITUTIONALISM, ANCIENT AND MODERN: The Origins and Import of Republican Constitutionalism

February, 2013

Cardozo Law Review

34 Cardozo L. Rev. 917


Clifford Ando+


The Romans had no constitution. As we shall see, the moment came when they thought about writing one - or, better yet, the moment came when they talked as though they were thinking about writing one. What that moment was, and what issued from it, are problems to which we shall return.

This claim stands in spite of the elegance and compression of the definition of ius publicum, of public law, offered by the jurist Ulpian, who wrote in the early third century C.E., a quarter-millennium after the establishment of monarchy, which might be thought to bespeak a shared understanding:

There are two branches of legal study: public and private. Public law is that which respects the condition of the Roman state, private that which respects the interests of individuals, for some matters are of public and others of private interest. Public law consists in rites, priesthoods and magistracies. Private law is tripartite: for it is gathered from natural precepts, the laws of peoples and the laws of political societies. 1
But the simple fact of the matter is that the Romans never codified what Ulpian calls public law, nor, more surprisingly, did any robust theoretical literature or commentary tradition develop upon such public law statutes as did exist. 2 (If they had had a constitution or a robust public law tradition, it might be that gross errors of misapprehension like that visible in Maccabees 3 would not exist - nor is it an isolated ...
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