The law of the exception: A typology of emergency powers (original) (raw)

Constitutional Thought in the Late Roman Republic

Emergency powers are widely held to have contributed in important ways to the Roman Republic's demise and to the erection of the Principate. The debate waged during the late Republic over such powers is certainly one of the most prominent features in late Republican political thought and controversy, and it would be hard to overlook the fact that it was a debate over constitutional principle. Taking seriously the constitutional character of that debate, this article seeks to answer the question of whether it makes sense to attribute to the Roman Republic something like the concept of a constitution in the first place. It is argued that on the level of political thought the term 'constitution' can indeed profitably and accurately be applied to a set of rules that were thought both to be more entrenched and to be more important than other rules. Thus it makes perfect sense to speak of a Roman Republican constitution, without scare quotes, at least in the realm of political thought. Furthermore it is suggested that it makes sense to speak of a Roman republican constitution in the realm of institutional reality as well since political and more specifically constitutional thought informed and influenced some of the republican institutions and their functioning to a considerable extent.

Aims and Methods of Legal History – The Case of the Roman Dictatorship

Law and method, 2024

Doctrinal approaches to Roman law are currently often supplemented by contextual legal-historical scholarship that aims to expose Roman law's connections with its socio-political, religious and broader intellectual environment. This article draws attention to the relevance of such contextual research for modern legal problems. An analysis of the Roman dictatorship and its reception history in legal and constitutional scholarship serves as a case in point. Contrary to common belief, the far-reaching powers of the Roman dictator-acting to save the Roman Republic in times of great peril-were controlled by informal rather than formal legal restraints. A corrected understanding of the Roman dictatorship is arguably not only important for an appropriate assessment of the Roman constitution itself but also for current debates on the limits of legality in times of emergency.

Senatus Consultum Ultimum - State of Emergency in Ancient Rome

Przegląd Prawa Konstytucyjnego, 2021

This paper presents the senatus consultum ultimum, i.e., the final resolution of the senate passed in moments of extraordinary danger to the Roman Republic. We answer the question what was the legitimacy of such resolutions and indicate their rationale and the effects of their issuance. Senatus consultum ultimum was the most powerful weapon of the Roman senate in the fight against internal political enemies in the late republic, so it needs to be clarified whether the SCU was a legitimate measure to protect the state or it cared only for the political self-determination of the senate and the optimates. Streszczenie Senatus consultum ultimum-stan wyjątkowy w starożytnym Rzymie W niniejszym opracowaniu zostanie przybliżona senatus consultum ultimum, tj. ostateczna uchwała senatu podejmowana w momentach nadzwyczajnego zagrożenia rzymskiej

Classical Political Forms, the Mixed Regime, and the State of Emergency—Roman, Byzantine, Muscovite?

Ius & Iustitium, 2022

Interest in the classical legal tradition and the classical philosophies on political regime and political order from which it emerged have grown signi cantly, as this very publication outlet can attest. This revival is particularly interesting because until recently the categories and frames of reference central to the classical tradition have been largely outside the mainstream of scholarly work across an array of academic genres, from legal theory to political science and beyond. Given this, I wanted to invite the readers of I&I's attention to a recent attempt at melding older understandings of political regime with modern scholarship-thus far still a rare occasion. This summary is an encouragement for those interested in classical political concepts and their relevance to the classical legal tradition to engage with both the promise and pitfalls of this approach to the scholarly study of political order and political regime. Most scholarship today does not consciously rely on classical frameworks for these topics. It is therefore important to understand the di culty of translating old and new ways of typifying regime, and to take interest whenever such a mixing, or an attempt at application, is undertaken.

Lex Oppia: An Ancient Example of the Persistence of Emergency Powers (with Lucas Rentschler)

Laissez-Faire, 2011

Gross (2003) and Lobel (1989) both note that, because the lines demarking emergency and normalcy have become increasingly blurred, emergency laws often remain in force well beyond the crisis that was their genesis. Gross argues in favor of an extra-legal model of emergency response, in part to deal with the observed persistence of emergency laws. It is important to note there are other mechanisms through which emergency laws might persist. In particular, once a law has been passed in response to a crisis, government officials may simply find an alternative justification for the law, in order to perpetuate it. Through an examination of the Lex Oppia, an ancient example of emergency legislation that remained in force for many years after the emergency had passed, this paper will examine this phenomenon.

Petition and response, order and obey: contemporary models of Roman government -- OLD VERSION

The paper addresses a problem of method and one of substance. Methodologically, it considers the necessity of modeling in the study of ancient institutions. Substantively, it critiques minimalist interpretations of Roman government: those that depict Roman government as passive or reactive, for whom response to petitions is emblematic of ancient government. I then focus on the vocabulary of command, not least as its usage spans both general edicts and ad hominem rescripts, and suggests that its use helps to explain why provincials received rescripts as having general force. I then close with some general considerations on the study of government as an historical enterprise.

Responding to Emergency in Democratic Athens: The Case of Anti-Tyranny Legislation

This article attempts to understand Athenian anti-tyranny laws as offering a democratic response to emergency. These laws sought to promote the killing of "tyrants" who overthrew the democracy and to punish those who collaborated with any nondemocratic regime. I argue that the anti-tyranny laws reflect a broader series of measures enacted in the aftermath of the oligarchic coup of 411 BCE that sought to facilitate the collective action of the dēmos (people) as a means of maintaining and preserving Athenian democracy. Such legislation, I suggest, is best understood when situated within the context of a distinctly Athenian conception of the rule of law that viewed the relationship between the rule of law and popular sovereignty in recursive terms. The article places this Athenian response to emergency in dialogue with recent work on emergency politics in contemporary political theory.