"Sed fortuna, quae plurimum potest cum in reliquis rebus tum praecipue in bello, parvis momentis magnas rerum commutationes efficit; ut tum accidit."

C. Iulius Caesar - Commentarii de Bello Civili Bk III.68

Monday, November 29, 2004

The Constitution and the Collegium

The concept of Nova Roma having already established its own mos maiorum is an absurdity. Nova Roma is so newly established, by any yardstick let alone the span of Roman history, that we have no ancestors here whose traditions we should abide by. Of course one could just dismiss the concept at this point, but it deserves further exploration because the manner in which this erroneous assumption is being deployed in this debate is in fact contradictory.

The mos maiorum of antiquity was not static. It did change and sometimes change came abruptly and as a result of the actual or implied threat of violence. The benefit of the mos maiorum was that it laid down certain boundaries, which had the intention of inoculating the system from frequent and unnecessary changes. When change did come it was usually a "significant" issue. So did the mos maiorum bend to the people's will?

Roman politics revolved around dominant figures, on all sides of the political arena. Roman politics revolved around the client/patron relationship. Roman politics included tactics such as bribery, intimidation and subsequently murder. Roman politics did not include organized political parties where your average plebeian Roman could sign on the slate and have a voice. The Roman voting system was designed to ensure that only patricians or moneyed and influential plebeians had a real effect on the outcome of the vote. Democracy this was not.

We can surmise that there must have been occasions when the people passed laws that faced little or no opposition from the Senate, and may indeed have had their "blessing" – probably because those that sponsored them had already secured Senatorial support. Not every change to the mos maiorum was likely to have been dramatic showcase politics and dangerous stand-offs. Some of the changes were no doubt mundane in nature and impact.

If the mos maiorum did bend to the will of the people on occasion it is probably more valuable to ask in turn whose will or bidding did the "people" do? To refine it further on these occasions was this really the "people" as the whole adult enfranchised body or smaller segments that became labelled as the "people", when we could be talking about a vociferous minority. So again, it is likely that democracy this was not.

Returning to the absurdity of our having our own mos maiorum, if the mos maiorum of antiquity could be changed then the mos maiorum of Nova Roma can be changed. Now some of the proponents of women pontifices claim that the Collegium Pontificum has changed the mos maiorum of Nova Roma by adopting the stance that it has done on women pontifices.

Rather than look to the mos maiorum of antiquity or the supposed modern mythical one, let us instead look to the Constitution of Nova Roma. Maybe there is something in this document that can cast a different perspective (I don't recall any of what follows being covered before...but who knows as it appears this thread is infinite in nature)?

Section VI.B.1.c of the Constitution states that the Collegium has the power to regulate its own internal affairs and that such decreta that are passed cannot be overruled by laws passed in any of the comitia or by Senatus consultum. Is this in conflict with Section I.B? There are two interpretations. Firstly that Section I.B stands "supreme" and overrides all other sections, or second that it does not and Section VI.B.1.c cannot be overridden by any other clause. The assumption of the supremacy of Section I.B cannot be made on the basis of what the section says, for it made provision for conflicting laws but does not include any provision for overruling any other part of the constitution that may conflict with it. Therefore one can only turn to either the wording, the spirit of the constitution or both for some guidance.

"This Constitution shall be the highest legal authority within Nova Roma, apart from edicts issued by a legally appointed dictator" establishes the precedence of the constitution over all other laws and edicts, apart from those of a legally appointed dictator, yet since the rights of the Collegium Pontificum to regulate its own affairs are granted within the constitution does this section "trump" Section VI.B.1.c? I don't believe it does for that section grants those rights specifically to the collegium. The specific grant overrides the general restriction. In other words even if the Collegium passes decreta that appear to conflict with the constitution, this very grant of an exclusion clause, allows the Collegium to do so, so long as the decreta relate to the regulation of its own affairs.

Section I.E does not preclude a disparity between the genders; it simply states that the use of male pronouns cannot provide the basis for a disparity to be held to exist. Section VI.B.3 enshrines the right of the Collegium to create other religious institutions and set the rules for priesthoods "in accordance with the ancient models of the Religio Romana as practiced by our spiritual ancestors". Therefore when you link the right under Section VI.B.1.c with this right, should the Collegium pass a decreta prohibiting women from becoming pontifices it would not conflict with the constitution, for nowhere in the constitution are women guaranteed any rights (then you would have one specific clause conflicting with another, and even then depending on the wording it is possible to conceive of equally strong arguments on either side for the supremacy of each clause and thus an impasse).

Does the spirit of the constitution assist us? That could have been the case had it been littered with clauses relating to the protection of the rights of female gender or indeed a flavour of what today could be described as "civil liberties". The stark fact is that there is nothing of the sort to seize upon there as guidance. Use of the "spirit" of a constitution, law or even a court order to overrule a specifically worded clause is not consistent with sound legal interpretation. I have only mentioned it at all as it may arise as an issue.

If the Collegium passes such a decreta then by the tenet of Nova Roman law, if any of the comitia attempt to pass a law overruling such a decreta that law will be unconstitutional as the supremacy of the decreta relating to internal regulation is enshrined in the constitution. By the same token should the comitia pass a law allowing in any way altering the composition of the Collegium or the manner in which pontifices are appointed or elected, then all the Collegium has to do is pass a decreta to the contrary and the law will be nullified.

Section VI.B.1.c does not limit the ability of the Collegium to react after the event, in other words it does not limit the Collegium to only having its existing decreta protected from change. The use of the word "passed" could be taken as future tense as well as past tense; "(such decreta may not be overruled by laws passed in the comitia or Senatus consultum)" can imply that decreta already passed cannot be overruled, or, that laws already in existence cannot overrule decreta yet to be passed.

There is no ambiguity here; the constitution simply doesn't preclude either. In the absence of ambiguity it is pointless to look to the spirit of the clause, but again as it maybe likely to happen anyway the spirit of Section VI.B.1.c can be said to be the protection of the right of the Collegium to regulate its own affairs. It would therefore be consistent with the spirit that the Collegium's decreta cannot be affected by either laws existing when the decreta were passed or yet to exist.

How does this relate to the mos maiorum? If the Collegium Pontificum elects to pass a decretum prohibiting women from becoming pontifices, even if Nova Roma has its own mos maiorum because the constitution is supreme the issue of changing the mos maiorum without it being the will of the people is irrelevant. The constitution subordinates the people to the will of the Collegium, so long as the Collegium only speaks to its own regulation, through making the laws in comitia subservient to the Decreta.

So the Nova Roman mos maiorum may or may not be the expression of true popular democratic feeling, or it maybe the product of wishful thinking and the frequent posting of its supposed existence by equally frequent posters to the point where some people may actually believe it exists. What ever it is, and it could be many things – were it to exist, which it doesn't – it would in any case be overruled in this matter by the constitution. As the constitution provides for the Collegium to specifically have this authority, then the Collegium Pontificum cannot be held either in the past, present or future to be acting unconstitutionally should they pass such a decretum, nor against the will of the people as expressed in the comitia.

On a final note, as I am sure it may arise, if the contitution grants the Collegium this right and the spirit of the constitition is to protect the Collegium's right and as the decreta regulating internal matters trump the comitia and Senatus consultum, then what about the Tribunes right of veto?

"To pronounce intercessio (intercession; a veto) against the actions of any other magistrate (with the exception of the dictator and the interrex), Senatus consulta, magisterial edicta, religious decreta, and leges passed by the comitia when the spirit and/or letter of this Constitution or legally-enacted edicta or decreta, Senatus Consulta or leges are being violated thereby;"

So - the Tribunes cannot pronounce intercessio unless the spirit/letter of the constitution is being violated. In the case of the Collegium regulating it's own affairs, the Constitution provides
for this, so in fact if the duty of the Tribunes is to protect the constitution (as some argued) then logically those same people must accept that in this case should the Collegium pass a decretum prohibiting women from being pontifices, then the Tribunes should in fact defend that decretum against any attempt to pass a law in the comitia or a Senatus consultum.

What about a Dictator or even an attempt to change the constitution? As to the latter, an attempt to change the constitution could be seen as a violation of the spirit of the constitution as it exists now, and therefore the Tribunes would be bound to defend it and pronounce intercessio (according to those who say that is their duty above all others and they don't have the right to decide whether to pronounce or not). Once appointed the Tribunes cannot pronounce intercessio against the actions of the Dictator, but they can pronounce intercessio against his or her appointment.

Just a few things to ponder over.