Draft: Please do not cite without author’s permission
Nomi Claire Lazar 8/26/2004
1
Political thinkers from Machiavelli to Ackerman have used the institution of the Roman
Dictatorship as the paradigm of emergency powers in constitutional regimes.
1
The dictator, they
argue, represents the necessary shift from the rule of law to individual rule with its qualities of
speed, flexibility, and decisiveness. While opinions diverge regarding the desirability and
necessity of this shift, that it is a normal part of emergency powers constitutes a broad
assumption. My aim in this paper is to use the history of this very emergency institution to show
that, on the contrary this dichotomy of a rule of law which is ‘normal’ and individual rule which
is ‘exceptional’ is a false one.
The fate of the rule of law during states of emergency is a common concern among those
who study emergency powers from a liberal or libertarian perspective. Scholars question, under
emergency conditions, “how [can we] maintain the basic rudiments of a law-based state”?
2
But
this is the wrong question. Conceptualising the problem of emergency powers as a problem of
the rule of law contra arbitrary or individual rule rests on the premise that this dichotomy
constitutes a mutually exclusive and collectively exhaustive account of power, which implies an
unwarranted solidification of power and institutions. No state is purely ruled by law; states are
only more or less under the rule of law. Neither is a state under even the most extreme
constitutional emergency powers ever entirely subject to the sovereign will of an individual as
Carl Schmitt implies is possible.
3
Institutions confer formal powers, but institutions and laws are
among a number of means of constraining the informal flow of power. Hence, any normative
1
Previous versions of this paper was presented November 18, 2003 in the Yale Political Theory Workshop and June
6
th
, 2004 at the Canadian Political Science Association Annual Meeting. I am grateful to Bruce Ackerman, Mayling
Birney, Simon Kow, John McCormick, Ian Shapiro, Steven Smith, Jay Winter, and Robert Wokler for comments on
previous iterations, some of which I am still in the process of incorporating. I would also like to thank Mayor Susan
Thompson for being so generous with her time and for sharing her experiences with and wisdom about emergency
powers. This research was funded in part by the Social Sciences and Humanities Research Council of Canada
doctoral fellowship number 752-01-0388 and by Yale University.
2
Scheuerman, William. “Rethinking Crisis Government.” Presented at APSA, 2002.
3
Cf. Carl Schmitt. Die Diktatur. Sechste Auflag (Berlin: Duncker & Humblot, 1994); Political Theology.
Translated by George Schwab (Cambridge, MA: MIT Press, 1985).
Convention