Draft: Please do not cite without author’s permission
Nomi Claire Lazar 8/26/2004
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Formal and Informal Constraints and the Rule of Law in General
We have seen that Roman emergency institutions were not as cleanly bounded,
constitutionally or otherwise, as most theorists have suggested. Dictators were informally
empowered with the capacity to legislate, subject to popular support, but were constrained in
numerous formal and informal ways from doing so many other things that they were hardly
sovereign, even within their sphere of authority. Law, custom, and individual authority played
roles in a complex web of enablement and constraint. This institution was, hence, far from the
constitutional dictatorship that Rossiter envisions, and perhaps further still from the commissarial
dictator advocated and later rejected by Schmitt. The dictator was simply a special magistrate
with a little more room to maneuver. As a result, there is significant continuity between the
kinds of enablements and constraints that function under normal conditions and those
functioning under exceptional conditions within the Roman republic. That there was a dictator
did not in the slightest entail that a Schmittian Ausnahmezustand obtained.
This is no less true of liberal democracies under a good set of emergency powers. What
happens here also is not a violating switch from rule of law to arbitrary rule. Rather, the web of
formal and informal power shifts. While normal formal constraints may be weakened, there is
no reason in principle or, under decent conditions, in practice, why informal constraints can’t be
engineered to pick up some of the slack. The key, then, is not simply to ensure the maintenance
of the rule of law but to consider how power can best be constrained from violating the
underlying values of uniformity and predictability while the power structure shifts in a manner
conducive to effective action. Ultimately, we should evaluate institutions in their broader socio-
political context. Conversely, however, we must recognize that charisma and individual political
skill can supersede even the most genius constitutional thinking. Ceasar and Sulla were both
Convention