Draft: Please do not cite without author’s permission
Nomi Claire Lazar 8/26/2004
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account of emergency powers that aims at safely optimising liberal democratic values under
emergency conditions will have to contend with this more complex landscape of risk and
enablement.
Because this will necessarily be an extension of the way we think about power, risk, and
enablement under normal circumstances, the usual assumption of a radical shift between normal
government and exceptional government, with the normative risks that implies, comes into
question. There is no radical difference in the structure of power between exceptional and
normal circumstances. Emergencies require a shift subject to many of the same underlying
principles rather than a radical switch.
Historically, theorists’ assumptions about the opposition of normal and exceptional, rule
of law and rule of individual, are bound up with collective reliance on this trope of the Roman
dictatorship. Nearly every theorist who has seriously treated the subject of emergency powers
has made reference to this institution. But, a careful account of the dictatorship in Rome and its
place in the broader framework of the republican Roman constitution shows that it reflects the
more complex landscape of informal enablement and constraint I wish to advocate much more
clearly than the dichotomous perspective for which it has served as a paradigm. Indeed, the later
and much neglected Roman institution of the senatus consultum ultimum which explicitly relies
on such informal understanding or power and constraint and provides a good prototype for
contemporary institutions.
Practically and theoretically, attention to informal constraint and enablement is critical.
Contrary to most accounts. This paper argues that the safe use of emergency powers in
democracies requires that we focus not solely on the rule of law, but on how power can best be
constrained from violating the underlying values of uniformity and predictability while it enables
rapid and effective action.
Convention