In this chapter, therefore, we will try to disentangle and shed light on some of
the main conceptual questions entailed in the doctrine of emergency powers,
taking into account the theory and experience of their enforcement.
‘‘Public emergency situations involve both derogations 1 from normally
available constitutional rights and alterations in the distribution of functions
and powers among the diVerent organs of the State’’ (European Commission
for Democracy through Law 1995 , 4 ). Recognition and protection of human
rights and separation of powers are, indeed, not only deWning characteristics
of modern constitutionalism but more, in general, distinctive elements of any
non-absolutist and anti-despotic power that we shall callpolyarchy. By this
word, we mean a political and constitutional system in which powers are
distributed among diVerent branches and agencies of the government and in
which fundamental rights are recognized in the constitution and enforced in
some way. 2 In some constitutional circumstances, these features (separation of
powers and fundamental rights) may be suspended by invokingemergency
powers, but only under a strict stipulation: if their enforcement has the
eVective aim of stabilizing the constitutionalstatus quo ante. 3 In other words
they are aconservative measure, comparable to the Lockean idea of revolution,
an ‘‘appeal to heaven,’’ the function of which was to reestablish the Ancient
English Constitution, which had been threatened by an attempt to establish in
the Kingdom an absolute monarchy. Without that conservative principle, the
suspension of polyarchical principle would not be an exercise of emergency
powers but would be a constitutional innovation or transformation or, to use
Carl Schmitt’s ( 1994 ) expression, an application of constituent powers.
1 The Latin wordderogaremeans: to repeal part of a law, to enforce it onlyin part. TheOxford
English Dictionary(vol. IV, p. 504 ; ed. 1989 ) gives the same deWnition of the wordderogation: ‘‘partial
abrogation or repeal of a law.’’
2 R. Dahl uses ‘‘polyarchy’’ in a quite diVerent sense, one we do not need to discuss here. Dahl was
wrong in thinking that he had introduced the world in the political language. It was used by E. Sieyes,
the author of theThird Estate, in his polemic against Thomas Paine in 1791 to qualify an executive
power exercised by a plurality of members (Sieyes 2003 )
3 As Schumpeter said: ‘‘democracies of all types recognize with practical unanimity that there are
situations in which it is reasonable to abandon competitive and to adopt monopoly leadership. In
ancient Rome a non-elective oYce conferring such a monopoly of leadership in emergencies was
provided for by the constitution. The incumbent was called magister populi or dictator. Similar
provisions are known to practically all constitutions, our own included: the President of the United
States acquires in certain conditions a power that makes him to all intents and purposes a dictator in
the Roman sense, however great the diVerences are both in legal construction and in practical details.
If the monopoly is eVectively limited either to a deWnite time (as it originally was in Rome) or to the
duration of a deWnite short-run emergency, the democratic principle of competitive leadership is
merely suspended. If the monopoly, either in law or in fact, is not limited as to time... the
democratic principle is abrogated and we have the case of dictatorship in the present-day sense’’
( 1984 , 296 ).334 john ferejohn & pasquale pasquino