In what follows we distinguish a ‘‘constitutional’’ from an ‘‘epistemic/
ontological’’ dimension of emergency powers. The emergency regime, if it
exists in a constitution, is a legal/constitutional object. But such constitutions
only authorize the invocation of such regimes if a certain factual circum-
stance has occurred or, to put it another way, when the existence of a certain
kind of threat has somehow been legally ‘‘recognized.’’ We may illustrate the
diVerence by considering the classical example. The Roman ‘‘constitution’’
had one or possibly two constitutional emergency regimes: theWrst, which we
discuss below, was the classical ‘‘dictator’’ who was appointed by the consuls
after the Senate had recognized a circumstance of emergency. The dictator-
ship was employed fairly often from the inception of the republic until200 bc
when it, for various reasons, fell into disuse. The second was thesenatus
consultum ultimum, employed in the second andWrst centuries, in which the
Senate (as before) declared an emergency but did not require the consuls to
appoint a dictatorship. Rather, in the examples we have, it authorized direct
action against the emergency (von Ungern-Sternberg 2004 has a description
of the known cases).
The main object of this chapter is to discuss constitutional aspects of
emergency powers. The constitutional dimension of our question can be
summed up with the words: how is it possible to think of the position and
force of emergency powers within a polyarchical constitution? We shall return
to discuss the epistemic dimension only brieXy at the end of the chapter.
2 Constitutional Dualism
.........................................................................................................................................................................................
In general, the classical or ‘‘pre-democratic’’ (which we shall also denote
‘‘Roman’’) constitutional 4 doctrine (from the Roman Republic which was
discussed sympathetically by Machiavelli in hisDiscourses on Livy 5 and also by
Rousseau inThe Social Contract 6 ) distinguishes between:
4 Here in the broad sense of the word constitution, which does not imply the existence of a written
text encompassing the constitutional provisions. In this sense constitutionalism tends to coincide
with institutional polyarchy.
5 Book I, chapter 34 , ‘‘Dictatorial Authority did Good, not Harm, to the Republic of Rome.’’ This
text is quoted by Rousseau in a footnote of a chapter ofThe Social Contract(see next note).
6 See notablyThe Social Contract, book IV, chapter 6 , ‘‘On Dictatorship:’’ ‘‘TheXexibility of laws,
which prevents them from being adapted to events, can, in certain cases, make them pernicious, and,emergency powers 335