directelectionof the legislative and sometimes of executive authorities) the
suspension of rights needs less of a procedural justiWcation. The point here is
that non-despotic pre-democratic societies, like the Roman Republic or
England in the seventeenth century, have been very insistent on the import-
ance of legality or of legal regulations, and as a result they have tended
to regulate rights and suspension of rights through ordinary laws (or Senat-
orial decrees in Rome). For the same reason, parliamentary sovereignty
regimes, because they are monocratic in our sense, do not need these complex
legal-constitutional provisions because their statutes can be regarded as
expressions of the popular will, as expressed in elections, and the elected
government is eVectively under the control of the voters.
In what we call neo-Roman systems, however, constitution-makers have
thought there was good reason to create special emergency powers. Perhaps,
as in Rome, they settled on a constitutional system that had extensively
divided powers and which was for that reason unlikely to cope well with
emergencies of certain kinds. Or perhaps the ‘‘constituent power’’ did not
think parliament capable of successfully managing in emergencies (that was
the case of men like Hugo Preuß who drafted the Weimar constitution), or
perhaps the constitutional drafters simply did not trust parliament at all (as
with de Gaulle who did not trust the political parties—and their domain, the
parliament—but only himself and the French citizens).
A new type of dualism seems nowadays to be replacing the old one. It started
in the USA, probably during the Civil War. In that conXict Lincoln frequently
suspended rights of habeas corpus, initially on battleWelds but eventually in
other places as well. In doing so he was forced to confront the courts—
initially defying Chief Justice Taney’s order to release a prisoner (ex parte
Merryman, 1861 ). But over time, and especially after the war ended, the
Supreme Court successfully challenged a number of administration deten-
tions, especially where the arrests concerned people outside of war zones and
where there were ordinary courts available to hear constitutional claims
(Farber 2003 gives an account of these events; Randall 1926 discusses them
from a legal point of view). In eVect, Lincoln was free toWght the Civil War
however he and Congress wanted, but his sphere of autonomous action
was checked by courts, especially oVthe battleWeld. 20 Thus, the Congress
20 The critical decision was given inex parte Milligan( 1866 ) in which the Court said that the
decisions of military courts could be appealed to ordinary courts where, as in Indiana where Milligan
was arrested, the civil courts were open and available to hear his claims.
emergency powers 341