- The Roman Republic according to Polybius’ description (Histories,B.VI)
or as given by Machiavelli in theDiscourses,I. 2. This regime provided legal
protections for certain due process rights. - Modern constitutional systems with separated powers based on mechan-
isms of checks and balances, with protections for individual rights of
various kinds, normally speciWed in a written text. 8 - Modern parliamentary systems with constitutional courts (Germany and
Italy and most recently established constitutional democracies).
Exceptional constitutional regimes have normally taken the form of a mon-
ocracy (i.e. one without internal checks or separations of power) 9 that
suspends temporarily some (or all) citizens’ rights. Historical examples of
exceptional regimes are:
- theRoman dictatorshipin theWrst centuries of the Republic (and also the
senatus consultum ultimum,and possibly Sulla’s dictatorship 10 rei publicae
constituendae causa 82 BC 11 ); - the FrenchComite ́de Salut Publicduring the Terror (collegial and ac-
countable 12 dictatorship terminated by the Convention onTermidor 9 th);
8 Notice that in the ancient model of mixed government the institutional polyarchy is rooted in
the division of society intoontologicallydiVerent parts, groups, ranks, or estates, and it is, so to speak,
areXection of it. Where in the contemporary post-Hobbesian constitutionalism, based on thelegal
equalityof citizens, the polyarchy is essentially an artifact resulting from constitutional engineering
endogenizing the polyarchy into the structure of the government according to the Madisonian
principle of ambition counteracting ambition!
9 In this perspective it is an ‘‘alteration in the distribution of functions and powers among the
diVerent organs of the State!’’ Sometimes this monocratic power can be exercised by a group of people
acting like acollegium(as in the case of the FrenchComite ́de Salut Publicduring the Revolution).
10 On the Roman dictatorship see Nippel ( 2000 ); and on Sulla, see Hurlet ( 1993 ). It is useful to
remember that the Roman dictator was a magistrate appointed by the consuls for a maximum period
of six months when the Senate declared the existence of an emergency situation. The dictator had the
prerogative of suspending both thetribunicia potestas—the veto that the tribunes were able to oppose
to the decisions of other high public magistrates—and theprovocatio ad populum—the possibility for
a Roman citizen to escape capital punishment in the absence of a regular trial by a popular court.
11 The case of Sulla’s dictatorship is complex as he was appointed by means of a law enacted in the
assembly and not through an action of the Senate. Possibly, the epistemic authority to declare an
emergency may have shifted, at least for a time, to the assembly. But it is also possible that the
signiWcance of the assembly action is found in the fact that Sulla was authorized to wield constituent
power—the power to change the laws or constitution itself—and this traditionally required the assent
of a popular assembly.
12 To the Convention, each month.
emergency powers 337