Offences Against the Res Publica: The Role of Public Interest Arguments in Cicero\u2019s Forensic Speeches

Abstract

By the mid-first century BC, quaestiones perpetuae (standing courts) were the principal tribunals before which charges of offences against the Roman res publica were tried. The extant writings of the Roman statesman and orator M. Tullius Cicero are our main source as to the arguments which were deployed before these courts as being relevant to their determination of the charges presented to them. Cases of maiestas (treason) sometimes raised questions of law as to the relationship among different organs of the res publica, but Cicero argued that such cases also required the courts to decide whether defendants had acted against the interests of the res publica by reference to substantive policy considerations. Cicero appears also to have argued that wide public interest considerations should be taken into account in relation to other offences tried before the quaestiones perpetuae. The courts’ willingness to entertain such arguments detracted from the clarity of the rules they were called upon to apply, and altered the nature of their own function, as trials were potentially transformed into arenas of political judgment. In consequence, the quaestiones perpetuae did not operate in accordance with a modern understanding of the rule of law. Recognition of these features of the quaestiones perpetuae may assist in explaining why these courts were of questionable legitimacy, were ineffective in providing an effective constraint on the exercise of political power, and failed to achieve the purpose which L. Cornelius Sulla may have envisaged for them.