(a) regular government and
(b) exceptional government,
where, as already mentioned, the purpose of exceptional government is to
keep or restore thestatus quo ante(i.e. the regular government), and is in this
sense a ‘‘conservative’’ or stabilizing device. 7 The classical constitution, in
this sense, contains or authorizes two distinct governments with diVerent
distributions of powers and under which people enjoy a distinct set of rights.
But these two are connected in the sense that the only legitimate purpose of
the exceptional regime is to restore the regular regime and the conditions that
permit it to resume functioning.
Many classical and modern constitutions specify a regular constitutional
regime, which we call a ‘‘polyarchy’’ within the governmental structure.
Polyarchies are characterized by some form of ‘‘separation of powers’’ in
the exercise of political authority and by the recognition of some citizens’
rights. Most modern constitutional regimes—those adopting their constitu-
tions after the Second World War—have incorporated the two deWning
features of polyarchy. This tendency is nearly unanimous in relatively devel-
oped democracies. Here are some examples of diVerent types of polyarchical
regimes:
- The classical mixed government (the Aristotelian memigmene politeia
[Politics,book 4 ]); rights protection in the Athenian version rested on
free access of citizens to the courts and the assembly.
in a time of crisis, they can in themselves cause the downfall of the state. The order and slowness of
legal procedures require a space of time that circumstances sometimes do not permit.... No one,
therefore, should seek to strengthen political institutions to the point of losing the power to suspend
their operation’’ (Rousseau 1988 , 162 – 3 ).
7 The last classical formulation of this doctrine was spelled out by the great German lawyer Hugo
Preuß, who played a crucial role in drafting the Weimar constitution, in an article published in 1924 ,
the best commentary to our knowledge of the article 48 of theWrst German republican constitution.
Here is the text of Art. 48 : ‘‘If a state ( 8 ) does not fulWl the obligations laid upon it by the
Reich constitution or the Reich laws, the Reich President may use armed force to cause it to
oblige. In case public safety is seriously threatened or disturbed, the Reich President may take
the measures necessary to reestablish law and order, if necessary using armed force. In the pursuit
of this aim he may suspend the civil rights described in articles 114 , 115 , 117 , 118 , 123 , 124 and
154 , partially or entirely. The Reich President has to inform Reichstag immediately about all
measures undertaken which are based on paragraphs 1 and 2 of this article. The measures have to
be suspended immediately if Reichstag demands so. If danger is imminent, the state government may,
for their speciWc territory, implement steps as described in paragraph 2. These steps have to
be suspended if so demanded by the Reich President or the Reichstag. Further details are provided
by Reich law.’’
336 john ferejohn & pasquale pasquino