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.If we understand the rule of law in this way, we leave open the pos-sibility that these values might be furthered in some other way.Should7Among the many examples are Lee Epstein et al., The Effect of War on the SupremeCourt, p.6; William Scheuerman, Rethinking Crisis Government ; Diane P.Wood, The Rule of Law in Times of Stress. 8Hayek, Constitution of Liberty, pp.153 4.9Dicey, Introduction to the Law of the Constitution, p.114.10John Rawls, A Theory of Justice, p.235.Robert Nozick has also underlined thecentrality of the rule of law, for example in the slave thought experiment in hisAnarchy, State, and Utopia, p.290ff. 118 States of Emergency in Liberal Democraciescircumstances arise in which the rule of law was counterproductive orless effective than some alternative, we would be justified in making therelevant shifts: the rule of law is not normatively necessary unless itshould turn out that it is instrumentally necessary.Furthermore, because the rule of law focuses our attention on theformal aspects of power, there are good reasons to think it is also in-sufficient for promoting and preserving the values of uniformity andpredictability for the sake of liberty and equality.This focus on formalpower is evident both among those who revile it and those who arecontent to concentrate authority in emergencies.For Carl Schmitt, forexample, the very idea of a sovereign dictatorship rests on the assump-tion that there could be an office, the holder of which exercised com-plete existential control, beyond formal constraint.11 Politics has noreal place in such a pantheon.Power is unidirectional.For liberalthinkers, in an equal but opposite way, law is conceived of as the formalregulator of power, the force that grants andobstructs it.Bothfor thosewho support and for those who oppose the suspension of the rule oflaw, a linear, Weberian conception of power is at work.The state hasa monopoly on the legitimate use of force, and that force is delineatedby specific formal legal mechanisms.Schmitt s concept of sovereigntyand his understanding of the political are reliant on this notion.And so,in an equal but opposite way, is the understanding of liberal emergencytheorists such as Bill Scheuerman.For both, law stands in opposition tosovereign power.But this formal conceptualization of power leaves out a central andotherwise obvious factor: the informal contest over power engenderedin politics.In a crisis, the informal enablement and constraint of powerare at least as important as the formal aspects embodied in the rule oflaw.They can enable political leaders to disregard or abuse the valuesunderlying the rule of law, even while observing the letter of the law.They can also prevent abuses and provide alternative constraints in theabsence of a strict rule of law regime.Hence, if we want to makeemergency powers safer, we would do well to take note of this broaderpolitical landscape.11See, generally, Carl Schmitt, Die Diktatur; see also Political Theology, p.5ff. The Rule of Law and the Roman Dictatorship 119the dictatorship in republican romeIn explaining this central importance of informal aspects of power inemergencies, I want to begin with an illustration.Its significance is notin any wholly novel discovery about this institution based on newarchaeological or textual information.Instead, it illustrates a morefundamental point.In the process, it serves to show how easily, partic-ularly in the study of the ancient world, historical accounts can be bentto political purposes.Both those who have wished to praise the suspension of the rule oflaw in emergencies and those who have found it worrisome have tendedto make their case with reference to the Roman Dictatorship.Politicaltheorists have found in the dictatorship of the Early and Middle Re-public exactly those features seemingly necessary to the management ofemergency circumstances in constitutional and rule of law regimes:speed, decisiveness, exception from the normal legal order, personalauthority in place of the rule of law.12 Thus, there is no more suitableway of illustrating this broader landscape of power and its constraintand the fallacious nature of the dichotomous conception of arbitraryrule and the rule of law than through a careful account of this veryinstitution.It serves as a clear illustration of the complex conception ofpower and constraint and as a counterexample to the more dichoto-mous norm/exception rule of law/individual rule conception it is nor-mally used to illustrate.And, while important differences separate theRoman and the contemporary case, the structure of the problem andthe principles with which we might confront it are not so far apart.12It is important to note that we in fact know very little with certainty about thisinstitution, or any other of the Early or Middle Republic.Classicists accept that theliterary accounts we have are at least partly fictitious, or at least so politically moti-vated that it would be irresponsible to take them as plainly factual.Later thinkersmadly embellished and selectively reproduced earlier accounts.But even Livy andDionysius, our so-called primary sources, were up to those same tricks, at least tosome extent.Occasionally, archaeological evidence can help in this regard, but sincesuch evidence is sketchy, my account is not strictly intended to provide definitive, new,historical insight into the institution of dictatorship itself, but rather illustrates its useand abuse. Instead, what these early writers and our documentary evidence suggestcomes from what these authors find not worth noting.If these common and significantdeviations from our usual trope seem to serve no political purpose for early authors,and if other aspects of the historical record tally up, then this is enough to promptquestions about the modern trope.A definitive account is not necessary to this end.Itis enough to show that the trope is a late construction. 120 States of Emergency in Liberal DemocraciesWe should take care at the outset to distinguish this institution fromits Late Republic and twentieth-century namesakes.The Roman Dic-tatorship of the Early and Middle Republic was a formally limited,frequent but intermittent, and constitutional office.In the dying daysof the Republic, Caesar and Sulla subverted the institution by removingits formal limitation.While constitutional innovation was common inRepublican Rome, this went well beyond the common understanding ofthe spirit of the office, and the dictatorships of Caesar and Sulla areinstitutionally separate from, even if parasitic upon, those of earlierperiods.13 The more recent subversion invests in a single individualcomplete and continuous formal control over every aspect of the state.As should be clear from this discussion, this form of government hasmore in common with the late dictatorships than with those underconsideration here, and, even then, these forms of dictatorship sharelittle in common beyond the literal element of command.Our interest rests with the emergency institution used by the Ro-mans of the Early and Middle republican periods
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