9. Constitutional Thought, Democracy and Crisis Government

The theory of crisis government is related to the fundamental questions of political philosophy. Crisis government is an indispensable instrument in protecting constitutional democracy, and, at the same time, it is most dangerous enemy. The historical starting point is the Roman dictatorship: a legally established office with wide powers but temporal limits. The early modern republican authors saw the Roman institution as a model. In the republican views, liberty is maximized by institutions that are likely to guarantee the greatest amount of liberty in the long run. The risks of arbitrary power have to be balanced against the costs of decision making and the ensuing risks of inactivity. Emergency powers are subject of a conceptual and normative dilemma. How can the law permit—in some cases require—that it should not be followed? The republican theorists are constitutional dualists: they believe that the exceptional can be subjected to normative regulation. For decisionists, any attempt to regulate the exceptional is doomed to fail for conceptual reasons. A third possibility is to stick to the constitutional rules and accept the consequences, for law simply cannot authorize its own suspension. This is the view of constitutional monism adopted by the liberal theorist Benjamin Constant.