- the presidential version of the Roman Model (which we shall label ‘‘neo-
Roman’’):
–art. 48 of the Weimar Constitution ( 1919 ); 13
–art. 16 of the French Constitution ( 1958 ). 14
The Roman model—in which we may include the FrenchComite ́de Salut
Public—is characterized by the fact that the exercise of emergency power
involves the creation of a special agent outside the ordinary constitutional
structure. The Romans may have done this in order to insulate what hap-
pened in the state of emergency from the actions of ordinary government,
with the purpose of insulating the constitution from the precedents estab-
lished in emergencies. In the neo-Roman model, by contrast, emergency
powers are exercised by one of the branches of the regular government,
normally the popularly elected executive, 15 which in emergency circumstan-
ces is empowered with special prerogatives (pleins pouvoirs,Diktaturgewalt,
etc.).
The diVerence between the modern examples and the classical Roman
model is twofold: In the Roman dictatorship the agency declaring the emer-
gency (the Senate) is diVerent from the agent appointing the oYcial who can
exercise the emergency powers (the Consuls), and is diVerent from the agency
exercising Emergency Powers (the dictator). Moreover, the dictator is not an
active magistracy during the regular government. In the modern, or neo-
Roman, model the head of the executive recognizes an emergency and the
same agent exercises Emergency Powers. And, the executive is a regular (not
a dormant) organ of the constitutional system. One can suspect immediately
13 See note 7.
14 Article 16 : ‘‘Where the institutions of the Republic, the independence of the Nation, the integrity
of its territory or the fulWllment of its international commitments are under serious and immediate
threat, and where the proper functioning of the constitutional public authorities is interrupted, the
President of the Republic shall take the measures required by these circumstances, after formally
consulting the Prime Minister, the Presidents of the assemblies and the Constitutional Council.//He
shall inform the Nation of these measures in a message.//The measures must stem from the desire to
provide the constitutional public authorities, in the shortest possible time, with the means to carry out
their duties. The Constitutional Council shall be consulted with regard to such measures. Parliament
shall convene as of right.//The National Assembly shall not be dissolved during the exercise of the
emergency powers.’’
15 The neo-Roman model seems to be typical of the so-called semi-presidential systems in Europe
and of Latin American presidentialism, where the president has direct popular legitimacy through
election.
338 john ferejohn & pasquale pasquino