A Three-Layer Analysis (TLA) of Livy, History of Rome, Book 3
1. Question
Why does lawmaking power itself need control mechanisms?
This question does not mean that making law is dangerous in itself.
Making law is necessary for stable government.
If government depends only on custom, precedent, social status, and the discretion of magistrates, citizens cannot easily know what belongs to the law of the community and what belongs to the interest of those in power.
The early Roman Republic therefore needed written law.
However, Livy’s Book 3 shows another danger.
If the power that makes law is not controlled, the institution that creates law can place itself above the law.
Lawmaking power is more dangerous than ordinary administrative or judicial power because it can decide:
- what is legal
- who receives authority
- which institutions are suspended
- which routes of relief remain
- which actions are punished
- which procedures become official
The Decemvirate is the central example.
The Decemvirate was originally a temporary legislative institution created to establish written law. In its first phase, it functioned through drafting, public display, citizen comments, and approval by the assembly.
However, in its second phase, it became a pseudo royal power through the suspension of appeal, the absence of the tribunes, remaining in office after the end of its term, and the privatization of justice.
The problem was not the act of making law.
The problem was that the authority given for making law changed into power above the law.
This study examines that structure through TLA, or Three Layer Analysis: Fact, Order, and Insight. It also uses OS Organizational Design Theory.
2. Abstract
Lawmaking power itself needs control mechanisms because it can design the rule space itself.
Ordinary magistrates act inside existing law.
However, those who make law can design the limits of that law.
If this power is not controlled, the following risks appear:
- it can create authority favorable to itself
- it can create rules unfavorable to opponents
- it can suspend appeal
- it can suspend the tribuneship or representative institutions
- it can keep power after the end of its term
- it can extend lawmaking authority into administration, justice, and military command
- it can transform law from protection of freedom into a form of domination
In Livy’s Book 3, the Decemvirate shows this danger.
The first Decemvirate made law public, reflected citizen comments, and moved toward assembly approval. At this stage, lawmaking power functioned as an institution of codification.
However, the second Decemvirate became impossible to appeal against, operated without the tribunes, remained in power after its term, and privatized justice.
As a result, the lawmaking institution ceased to be an institution for creating law.
It became an institution that used law as a pretext to seize the governing OS.
The conclusion of this study is as follows:
Lawmaking power needs meta institutions that limit the power itself, not only rules about the content of law. Without limited purpose, term limits, appeal, representation, monitoring, assembly approval, division of authority, and conditions for returning to ordinary institutions, lawmaking power can become not an institution that protects freedom, but a new governing OS that destroys it.
3. Research Method
This study uses TLA, or Three Layer Analysis.
TLA divides historical material into three layers.
The first layer is Fact. It organizes the investigation of foreign law, the establishment of the Decemvirate, the publication of legal drafts, the strengthening of the second Decemvirate, the Verginia incident, and the restoration of the tribuneship and the right of appeal.
The second layer is Order. It extracts the structures behind those facts, including lawmaking power, temporary institutions, term limits, appeal, monitoring, representation, assembly approval, division of authority, and conditions for returning to ordinary institutions.
The third layer is Insight. It derives essential lessons that can also be applied to modern states and organizations.
This study also uses OS Organizational Design Theory R1.31.04.00.
The main concepts used in this study are as follows.
Lawmaking Power
Lawmaking power is the power to design rules themselves.
It often stands above ordinary public authority. If it is not controlled, it can redesign the whole institutional system.
Meta Institution
A meta institution does not decide the content of law itself.
It controls the body that creates law.
Term limits, limited purpose, appeal, monitoring, assembly approval, division of authority, and responsibility are examples of meta institutions.
Right of Appeal
The right of appeal is a correction interface that prevents the judgment of a magistrate or lawmaking institution from becoming final.
Representative Institution
A representative institution converts the voice of the weaker side into institutional output when individuals cannot overcome power differences alone.
In Rome, the tribuneship was the central representative institution for the plebeians.
T: Trust
T is the degree to which the execution environment accepts the governing OS, institutions, magistrates, and legal operation as legitimate.
MD: Moral Discipline
MD is the degree to which magistrates and institutional operators value public good, freedom, fairness, and responsibility to the community over private interest.
4. Layer 1: Fact
Livy’s Book 3 describes both phases of lawmaking power.
It first functions as an institution of codification.
Then it changes into an institution of despotism.
In Section 31, a delegation was sent to investigate Greek law, including the laws of Solon.
This shows that Rome had moved toward institutional design through codification.
In Section 32, the delegation returned with legal materials, and the drafting of law was demanded.
In Section 33, the Decemvirate was established to create written law.
The Decemvirate was a temporary institution for making law.
In Section 34, the Decemvirate prepared a draft of ten tables.
The draft was displayed publicly, citizen comments were reflected, and the proposal moved toward approval by the assembly.
At this stage, lawmaking power functioned as an institution supported by publicity and approval.
However, from Section 35 onward, the situation changed.
Through the plans of Appius Claudius, an individual OS entered the lawmaking institution.
In Section 36, the second Decemvirate became stronger and more coercive.
The right of appeal was suspended. The tribunes were absent. The Decemvirate moved toward pseudo royal power.
In Section 38, the Decemvirs remained in power after the end of their term.
This shows that a temporary institution becomes permanent power when it lacks a clear termination condition.
In Sections 39 to 41, opposition and persuasion existed inside the Senate, but Appius weakened monitoring and correction circuits through intimidation.
In Section 42, the legions under Decemviral command lost morale.
The corruption of lawmaking power had damaged Trust T in the execution environment.
In Section 43, the Decemvirs removed opponents in the army.
This damaged H, IA, NIC, and MD inside the legions.
In Sections 44 to 49, the Verginia incident occurred.
Here, lawmaking power turned justice into a tool for private desire.
In Sections 50 to 52, the army and the plebeians resisted and withdrew to the Sacred Mount.
After institutional relief disappeared, the execution environment moved toward external correction.
In Section 53, the plebeians demanded the tribuneship, the right of appeal, and immunity for those who had withdrawn.
This was a demand for freedom protection systems that could control lawmaking power.
In Section 54, the Decemvirs resigned and tribunes were elected.
In Section 55, the right of appeal, the inviolability of the tribunes, and the binding force of plebeian resolutions were strengthened.
This shows that after the failure of lawmaking power, correction circuits were institutionally redesigned.
5. Layer 2: Order
Lawmaking power is necessary for institutional design.
However, it is also the power that most strongly needs control.
Lawmaking power can design the rules themselves
Ordinary magistrates act inside existing rules.
However, lawmaking power can design those rules.
Those who make law can decide:
- what is legal
- what is illegal
- who receives authority
- whose authority is limited
- which routes of relief are recognized
- which institutions are suspended
- which actions are punished
- which procedures become official
Therefore, if lawmaking power is not controlled, it can create a rule space favorable to itself.
The Decemvirate shows this danger.
Although it was a temporary institution for written law, the transition of power suspended the right of appeal and the tribuneship. The ordinary consular system was also suspended.
At this point, the institution that made law moved beyond a simple legislative body.
It approached a limited OS.
Lawmaking institutions can easily suspend ordinary institutions
Lawmaking institutions are often created as special reform authorities.
For that reason, they easily obtain a reason to suspend ordinary institutions.
In Rome, ordinary consular and tribunician structures were suspended for the purpose of making written law.
At first, this may seem reasonable for institutional reform.
However, when ordinary institutions are suspended, other controls become necessary.
The system must define:
- the period of authority
- the purpose of authority
- whether appeal remains
- whether monitoring remains
- whether assembly approval remains
- how the system returns to ordinary institutions after the task is completed
Without these controls, the reform institution can use the vacancy created by suspended ordinary institutions to seize the governing OS.
Lawmaking power becomes impossible to correct when appeal is suspended
Lawmaking power becomes most dangerous when it suspends appeal.
The right of appeal is a correction circuit that prevents the judgment of public authority from becoming final.
Under the second Decemvirate, appeal no longer reached the Decemvirs.
Without appeal, the lawmaker can:
- make law
- interpret law
- apply law
- issue judgment
- reject objection to that judgment
In this structure, law no longer protects citizens.
It fixes the judgment of those in power.
The Verginia incident was the result.
Appius used a claim that Verginia was a slave and made justice follow his private desire.
This shows that lawmaking power must always leave a route for appeal.
Lawmaking power becomes permanent when it lacks termination conditions
Lawmaking institutions are often created as temporary institutions.
However, temporary institutions require clear termination conditions.
The Decemvirate was a temporary institution for making written law.
But in Section 38, the Decemvirs remained in power after the end of their term.
This means that a temporary institution without a clear end can seize the ordinary OS.
When temporary authority has no termination condition, the temporary becomes permanent.
Permanent temporary power then begins to erode ordinary institutions.
Lawmaking power therefore requires:
- term limits
- task completion conditions
- restrictions on reappointment
- conditions for returning to ordinary institutions
- responsibility after the term
- approval procedures for any extension of authority
Lawmaking power justifies itself when monitoring is blocked
Lawmaking authorities often present themselves as reformers.
They may therefore treat opposition as obstruction of reform, resistance of the old order, or destruction of order.
In Sections 39 to 41, opposition and persuasion existed inside the Senate.
However, Appius intimidated opponents and closed debate.
When monitoring is blocked, the lawmaker begins to justify its own judgment.
The following cycle appears:
Acquisition of Reform Authority
→ Exclusion of Opposition
→ Decline of Monitoring
→ Absolutization of Self Judgment
→ Further Expansion of Authority
→ Despotism
To stop this cycle, even the institution that makes law must be monitored externally.
Necessary forms of monitoring include:
- monitoring by the Senate
- approval by the assembly
- protection and veto by the tribunes
- public deliberation by citizens
- reporting at the end of the term
- later responsibility for abuse
If lawmaking power is not monitored, it can use the name of lawmaking to remove monitoring of itself.
Lawmaking power is vulnerable to takeover by an individual OS
The stronger a lawmaking institution becomes, the more important the OS of the individual inside it becomes.
Appius Claudius shows this danger.
When a person without self control holds public office without appeal, the whole institution can become an amplifier of personal desire.
When lawmaking power is taken over by an individual OS, the purpose of the institution changes.
| Original Purpose | Changed Purpose |
|---|---|
| Establish public law | Maintain personal power |
| Protect civic freedom | Realize private desire |
| Clarify boundaries of authority | Expand authority |
| Create common rules | Exclude opponents |
| Gain community approval | Force obedience through fear |
Therefore, lawmaking power must be designed on the assumption that an individual OS can go wrong.
It is not enough to rely on good people.
The structure must be strong enough to avoid collapse even when a bad person enters it.
When lawmaking power runs out of control, the execution environment withdraws
When a lawmaking institution becomes despotic, the problem does not remain inside the institution.
The execution environment withdraws.
In Section 42, the Roman army under Decemviral command lost morale.
In Section 43, the Decemvirs removed opponents in the army and increased anger and distrust.
In Sections 50 to 52, the army and plebeians resisted and withdrew to the Sacred Mount.
This shows that after institutional relief disappeared, the execution environment stopped participating in the governing OS.
When lawmaking power becomes impossible to control, the following effects appear:
- soldiers do not fight
- citizens do not obey
- plebeians leave the city
- the Senate loses governing capacity
- external enemies exploit internal conflict
- the state OS becomes unstable as a whole
Therefore, controlling lawmaking power is not merely a legal technique.
It is necessary for maintaining the execution capacity of the state OS.
6. Layer 3: Insight
Lawmaking power can create institutions that protect freedom.
At the same time, it can also create institutions that destroy freedom.
For this reason, lawmaking power requires meta institutions that control it more than it requires rules about legal content.
Health of lawmaking power
The conditions for healthy lawmaking power can be expressed as follows:
Health of Lawmaking Power
＝ Limited Purpose
× Term Limits
× Possibility of Appeal
× Maintenance of Representative Institutions
× Possibility of Monitoring
× Assembly Approval
× Division of Authority
× Conditions for Returning to Ordinary Institutions
× Moral Discipline MD of Operators
× Trust T of the Execution Environment
The important point is that lawmaking power does not become healthy simply by being strong.
It needs both strength and control.
When appeal, term limits, monitoring, and representative institutions are absent, the lawmaking body changes from a maker of law into a ruler above law.
Model of despotic lawmaking power
The structure through which lawmaking power becomes despotic can be expressed as follows:
Despotism of Lawmaking Power
＝ Lawmaking Authority
× Suspension of Ordinary Institutions
× Suspension of Appeal
× Suspension of Representative Institutions
× Absence of Termination Conditions
× Blocked Monitoring
× Loss of Division of Authority
× Deviation of Individual OS Purpose
The Decemvirate is the central example.
It should have held only lawmaking authority.
In reality, it suspended ordinary institutions, stopped appeal, stopped the tribuneship, remained in power after its term, intimidated monitoring inside the Senate, and privatized justice.
As a result, the lawmaking institution changed into a despotic OS.
Control mechanisms for lawmaking institutions
A lawmaking institution requires the following control mechanisms.
| Control Mechanism | Function | Failure When Missing |
| Limited Purpose | Limits authority to lawmaking | Purpose shifts toward holding power |
| Term Limits | Ends temporary authority | Remaining in office after term occurs |
| Right of Appeal | Corrects individual judgments | Unjust judgment becomes final |
| Tribuneship and Representation | Institutionalizes the voice of the weak | Protection of plebeians disappears |
| Assembly Approval | Gains community approval | Lawmaker approves itself |
| Public Deliberation | Opens information to the community | Secrecy and self justification increase |
| Monitoring by Senate and Multiple Offices | Reduces concentration of power | One institution monopolizes the governing OS |
| Division of Authority | Separates legislation justice and administration | Lawmaker becomes judge and executor |
| Responsibility | Allows later accountability | Abuse of power becomes unpunished |
| Return to Ordinary Institutions | Restores the ordinary OS after reform | Emergency authority becomes permanent |
Because these controls exist, a lawmaking institution remains a reform institution.
When they disappear, the reform institution becomes a new ruling institution.
Causal Chain
The causal chain of this case can be expressed as follows:
Unclear Law
→ Demand for Written Law
→ Investigation of Foreign Law
→ Establishment of the Decemvirate
→ Public Drafting and Approval by the First Decemvirate
→ Expectation toward Lawmaking Power
→ Concentration of Power in the Second Decemvirate
→ Suspension of Appeal and Absence of Tribunes
→ Remaining in Power after Term
→ Blocking of Monitoring
→ Privatization of Institutions by an Individual OS
→ Privatization of Justice
→ Verginia Incident
→ Collapse of Trust T in the Execution Environment
→ Withdrawal of Army and Plebeians
→ Removal of the Decemvirate
→ Strengthening of Appeal Tribunician Power and Plebeian Resolutions
→ Redesign of Control Mechanisms over Lawmaking Power
This causal chain shows that lawmaking power may be expected as a reform device when it is introduced.
However, when it loses control mechanisms, it changes into the most dangerous despotic device.
Final Insight
The final insight is as follows:
Lawmaking power itself needs control mechanisms because it can design the rule space itself. If the body that makes law is not controlled by appeal, monitoring, term limits, representation, assembly approval, and division of authority, it changes from an institution under law into an institution above law. The Decemvirate was established as a temporary institution for written law, but in its second phase it suspended ordinary institutions, held authority without appeal, remained in power after its term, and privatized justice. This shows that without meta control over lawmaking power, the institution that makes law itself becomes a despotic OS.
7. Implications for the Modern World
This analysis can also be applied to modern companies, public institutions, schools, and nonprofit organizations.
Modern organizations also have bodies similar to lawmaking power.
Examples include:
- institutional reform committees
- compliance committees
- investigation committees
- crisis management offices
- personnel system reform teams
- restructuring teams
- management reform projects
- internal control departments
- evaluation system design departments
- disciplinary decision bodies
These bodies can design rules, evaluations, responsibilities, sanctions, authority, and reporting routes.
They are therefore very important.
However, if they are not controlled, they can become not instruments of organizational repair but new ruling powers.
Dangerous conditions include:
- the term is unclear
- no one can monitor the body
- the body defines its own authority
- opposition is treated as obstruction of reform
- there is no condition for returning to ordinary organization
- the same body investigates, judges, and punishes
- no route of appeal exists
- the system is used to remove specific people
- there is no accountability
- top management is excluded from the scope of the system
Under these conditions, reform authority changes into organizational domination.
Modern organizations therefore need controls over institutions that design systems.
1. Limit the purpose
The organization must define whether the purpose is reform, investigation, reconstruction, or another task.
2. Set a term
Temporary authority must not become permanent.
3. Allow objection
The judgments of reform bodies and investigation bodies must also be open to review.
4. Preserve representation
People in the field and members in weaker positions must not be excluded from system design.
5. Accept monitoring
Reform bodies and investigation bodies themselves must be monitored by external or higher bodies.
6. Divide authority
The people who design the system, investigate, judge, and punish must not become the same unchecked body.
7. Keep publicity
The reason for institutional change, decision standards, and scope of application should be made public as much as possible.
8. Define return conditions
Temporary bodies must return authority to ordinary organizations after completing their task.
9. Make accountability possible
If a system design body abuses authority, it must be possible to hold it responsible.
10. Build in MD
Institutional reform must be conducted for the health of the whole organization, not for factional interest or revenge.
The power that creates institutions must be controlled more strictly than ordinary power.
This is because it can design the standards for almost all other actions inside the organization.
8. Conclusion
Livy’s Book 3 shows not only the necessity of law but also the danger of lawmaking power itself.
Rome needed law.
Custom, precedent, patrician legal knowledge, and magisterial discretion did not allow the plebeians to share governing standards.
Rome therefore investigated foreign law and established the Decemvirate.
The first Decemvirate drafted the laws, made them public, reflected citizen comments, and moved toward assembly approval.
At this stage, lawmaking power was controlled to a certain degree and functioned as an institution of codification.
However, under the second Decemvirate, the situation changed.
The institution that made law became impossible to appeal against, operated without the tribunes, remained in power after its term, removed opponents, and privatized justice.
At that point, the Decemvirate was no longer an institution that made law.
It became an institution that used law as a pretext to seize the governing OS.
The lesson is clear.
The more a body reforms institutions, the more control it needs.
The more a body designs systems, the more control it needs.
The more a body makes law, the more control it needs.
Reform, institutionalization, restoration of order, and the creation of law are legitimate purposes.
However, a legitimate purpose does not justify unlimited authority.
Rather, power with a legitimate purpose needs stronger control.
The conclusion of this study is clear:
Lawmaking power can protect law, but it can also become power above law. Therefore, lawmaking power requires meta control: limited purpose, term limits, appeal, representation, monitoring, approval, division of authority, and conditions for returning to ordinary institutions.
9. Sources
Titus Livius, History of Rome from its Foundation, Book 3. Japanese translation: Iwaya Satoshi, Roma kenkoku irai no rekishi 2, Kyoto University Press, 2008.
OS Organizational Design Theory R1.31.04.00.