Critical Lessons of History

History can be used or abused. Attempts to draw simple analogies from history, such as proposing models of emergency rule based on the Roman Republic’s dictatorship provisions, can be ahistorical. That is, they ignore the many critical divergences between different periods of history and the class structures and political dynamics of the societies being compared, whether they be founded on slavery, feudalism or capitalism. Moreover, what is presented as history can amount to a distortion or falsification of history to serve contemporary pseudo-legal or political agendas.

Three oft-cited historical episodes of emergency provisions – the Roman dictatorship, the French ‘state of siege’ and Article 48 of the German Weimar Republic – offer some very instructive lessons, if approached with these considerations in mind. Also of great relevance is an examination of the historical experiences associated with the rise and evolution of the capitalist democracies that arose out of the English and American revolutions of the seventeenth and eighteenth centuries. The records of three other former British colonies – Australia, New Zealand and Canada, are also revealing.

The Roman Republic’s Dictatorship: Concept and Reality

Contemporary efforts to legitimise, rationalise or accommodate resort to emergency powers often hark back to the Roman Republic of 509 to 27 BC, and its appointment of temporary dictators in periods of crisis. These endeavours, however, tend to divorce the dictatorship provisions from their historical and socio-economic contexts, thus presenting an idealised and therefore false picture. Little reference is usually made to the origins of the office of dictator, arising out of the revolution that overthrew the previous Roman monarchy, or to the degeneration of the institution in the face of mounting economic, social and class tensions, not least the struggles of the plebeians against the ruling patricians and the mighty slave uprisings of 135 to 71 BC.

In their study Law in Times of Crisis, Gross and Ní Aoláin conducted a survey of ‘models of accommodation’ – which countenance some accommodation for resort to emergency rule while maintaining normal legal principles and rules ‘as much as possible’. They began by suggesting:

The institution of the Roman dictatorship is the prototype for all modern forms of models of accommodation. The Romans introduced a system in which an emergency institution was a recognized and regular instrument of government built into a constitutional framework. (Gross and Ní Aoláin 2006: 17)

The splendid political genius of the Roman people grasped and solved the difficult problem of emergency powers in a manner quite unparalleled in all history, indeed so uniquely and boldly that a study of modern crisis government could find no more propitious a starting point than a brief survey of the celebrated Roman dictatorship. (Rossiter 1948: 15)

Ackerman, a more contemporary, post-9/11 American scholar, also lauded the Roman institution, while rejecting it as impractical in the modern world. It ‘represents the first great experiment with states of emergency’ and served as ‘an inspiration for my heavy reliance on a political system of checks and balances’ (Ackerman 2004: 1046).

The American Revolution itself drew upon references to the supposedly heroic example of the Roman Republic. What was depicted as the almost ideal working of the temporary dictatorship – the rapid relinquishment of supreme power by the dictator Lucius Quinctius Cincinnatus after defeating enemy forces – was cited as the exemplar for the conduct of America’s first president. Upon the victory of the American Revolution in 1783, George Washington surrendered his military powers as commander-in-chief and returned to private life, at least until re-entering political life and being elected as the United States’ inaugural president in 1789. He was also the first president general of the Society of the Cincinnati, a military society that in turn gave its name to the city of Cincinnati, Ohio (Wills 1984: 23).

The actual record of the Roman dictatorship was not as ‘splendid’ as often claimed. Following the overthrow of the monarchy in 509 BC, the Roman patricians sought to curtail the future usurpation of political power by establishing an executive headed by two powerful, but limited-term, chief magistrates, the consuls. Each consul was elected for a period of one year, without the possibility of consecutive re-election (Cary and Scullard 1975: 56–63).

Because a co-equal partnership between the two consuls might be problematic in times of extreme peril, another institution, the dictatorship, was created to exercise absolute power during emergencies (Rossiter 1948: 19). However, the dictator’s term of office was limited to six months or to the end of the term of the consuls who appointed him, whichever came first. Throughout the dictatorship, moreover, the regular institutions of the state – the consuls, tribunes, Senate and other office holders – continued to function and retained their full authority, providing a check on the dictator’s conduct (Gross and Ní Aoláin 2006: 23).

Thus, ‘the decline of the dictatorship did not signal the disappearance of emergency powers form the life of the republic. Rather, such powers came to be institutionalized and normalized’ (Gross and Ní Aoláin 2006: 241). This ‘normalization of emergency’ was augmented by the retention of the office of dictator, the shell of which was revived in a distorted form during the final period of the republic, most infamously by Julius Caesar, who was eventually anointed a perpetual dictator. ‘Caesar’s dictatorship did not comport with any of the constitutional limitations and requirements under the constitution of the republic’ (Gross and Ní Aoláin 2006: 83).

The conflicts between the patricians and the plebeians were not the only class struggles that ultimately tore the republic apart and led to the imposition of rule by emperors from 27 BC onward. Between 135 BC and 71 BC, in the final period of the republic, Rome was seriously affected by several slave uprisings, which reflected the underlying contradictions of a slave economy and society. Vast tracts of land were devoted to slave farming, in which the slaves greatly outnumbered their Roman masters. During this period, there were at least 12 civil wars and rebellions, including three ‘servile wars’ involving slave revolts. The third and final uprising was the most serious, with the gladiator Spartacus ultimately commanding between 120,000 and 150,000 slaves (Santosuosso 2003: 43).

Rather than providing a model for a constrained and delineated recourse to emergency powers, the Roman Republic’s descent into dictatorial rule points more to the increasing resort to authoritarian forms of rule to suppress the upheavals produced by the creation and threatening rise of an exploited class.

The Repressive Face of the French ‘State of Siege’

A similar conclusion can be drawn from another sometimes-cited classical model of constitutional accommodation of emergency powers – the civil law ‘state of siege’. Derived from France, this device for invoking emergency rule has been adopted in many Latin American states (Gross and Ní Aoláin 2006: 26). Most depictions of this institution by legal scholars are also devoid of any examination of its historical role and repressive content.

In Rossiter’s view: ‘No instrument of crisis government conform[ed] so closely to the theory of constitutional dictatorship as the famed and widely-imitated state of siege’ (Rossiter 1948: 129). Radin also presented a rosy picture of the state of siege as a constitutionally constrained mechanism:

[T]he vital point is that the state of siege is not a condition in which law is temporarily abrogated, and the arbitrary fiat of a ‘commander’ takes its place. It is emphatically a legal institution, expressly authorized by the constitutions and the various bills of right that succeeded each other in France, and organized under this authority by a specific statute. (Radin 1942: 637)

These democratic revolutions were betrayed by their leaders, after the working class rose up in Paris in June as an independent revolutionary force. Frightened by this new social force which threatened their property and privileges, the capitalist and middle-class leaders preferred to reconcile themselves with feudal reaction. The above-mentioned constitution of the short-lived Second Republic in France was in fact written on the back of a bloody military onslaught against the workers of Paris, which was followed by the deportation of thousands of insurgents without trial (Marx 1969a: 34–5).

General Cavaignac, the leader of the army, first withdrew his soldiers from Paris to allow the insurgents to deploy their barricades, and then returned with overwhelming force to crush the uprising; from 24 to 26 June, there were battles in the streets of the working-class districts of Paris. An estimated 5,000 insurgents were killed at the barricades; 15,000 were arrested and 4,000 deported (Séguin 1990: 108–9).

Even the somewhat critical view of the state of siege outlined by Gross and Ní Aoláin conveyed no idea of this brutal counter-revolution or the way it paved the way, despite the formal guarantees of legality enshrined in the constitution of the Second Republic, to the seizure of power by Louis Napoleon (Napoleon III), which culminated in his coup d’état of December 1851. In the words of Gross and Ní Aoláin:

Following the imposition of a state of siege on Paris between June 24 and October 12, 1848, and the introduction of article 106 of the Constitution of the Second Republic – providing that a law would be promulgated for the regulation of the institution of state of siege – a law was passed on August 9, 1849, which sought to regulate such issue as the declaration, termination, and the effect of a state of siege. However, the law of 1849 was thereafter used to impose indiscriminately and arbitrarily a state of siege regime for extended periods of time and on a wide scale. (Gross and Ní Aoláin 2006: 27)

What actually happened during this period? Following the February 1848 mass overthrow of the Orleans monarchy of Louis Philippe, who abdicated and fled to Britain, there was an elected government that proclaimed the Second Republic. But, reflecting the interests of the most powerful business layers, the bourgeoisie, this government increasingly dismantled the social concessions, such as the employment workshops, that had initially been made to the workers and poor who mounted the revolution.

By the time of his December 1851 coup, Louis Napoleon had dissolved the National Assembly without having the constitutional right to do so, and became the sole ruler of France. Cells of resistance surfaced but were put down, and the Second Republic was officially over. Louis Napoleon took the title Emperor Napoleon III, and the Second Empire began, which lasted until 1870, when it collapsed in the wake of France’s defeat in the Franco-German War.

Then, in March 1871, the workers of Paris rose up to oppose preparations by the royalist-majority National Assembly to restore the monarchy, and the provisional government’s decision to disarm the National Guard, which consisted largely of workers who had fought the German forces during the Siege of Paris. After municipal elections resulted in victory for representatives of the working-class resistance, they formed the Paris Commune government, which called for social measures such as the limiting of the workday to 10 hours.

The Paris Commune was subjected to furious repression. With active aid from German Chancellor Otto Bismarck, the aristocratic-, landlord- and business-dominated ruling class launched military operations against the Commune. After pitched battles, more than 20,000 Communards were killed and at least 38,000 arrested, many of whom were executed, and more than 7,000 deported (Lissagaray 2007).

Seven years later, once capitalist rule had been stabilised, a new law on state of siege was introduced in 1878. Formally, it stipulated that a state of siege could be only declared by law, and only ‘in the event of imminent danger resulting from a foreign war or an armed insurrection’ (Gross and Ní Aoláin 2006: 28). But in practice this limitation was swept aside when the first test of the law came in World War I. On 2 August 1914, a state of siege covering the whole of France was imposed by a presidential decree when parliament was in recess, in order to enforce a general mobilisation for the war against Germany. Three days later, a law declared that the state of siege would remain in place ‘for the duration of the war’ and could be lifted, and reimposed, by presidential decree. The declaration handed all police and security powers to the military (Gross and Ní Aoláin 2006: 29).

During World War I, the French cabinet also promulgated decrees that derogated from previous legislation or imposed sweeping measures without any constitutional or statutory basis. Proponents of the ‘accommodation model’ of emergency powers also embraced this type of ‘wartime’ regime as justified by the concept of ‘war powers’ or the doctrine of necessity (Rossiter 1948: 112–13). In 1918, the Conseil d’État upheld the inherent powers of the executive government to take such actions (Bell 1992: 84).

Likewise, during the economic breakdowns, political turmoil and class battles of the 1920s and 1930s, the formal limits of state of siege provisions were overturned by the adoption of enabling acts that provided for emergency powers.

Despite this record, advocates of a state of siege-style mechanism contrast it with Article 48 of the German Weimar Constitution, the prevalent use of which helped pave the way for Nazi rule (see below). Purportedly, the state of siege was an emergency institution to be applied only in the most acute and violent crises (Gross and Ní Aoláin 2006: 29). In reality, there are many parallels between the two emergency provisions, and the outcomes were similar – they helped lay the groundwork for despotic and dictatorial regimes.

Germany’s Weimar Republic

The record of the post-World War I German Weimar Republic provides an object lesson in the worthlessness of any formal constitutional constraint on emergency powers under capitalism, and how such constitutions prove to be antechambers of authoritarianism whenever the ruling elite feels fundamentally threatened by discontent erupting from below.

In his historical study The Rise and Fall of the Third Reich, Shirer described the Weimar Constitution as ‘on paper, the most liberal and democratic document of its kind the twentieth century had ever seen … full of ingenious and admirable devices which seemed to guarantee the working of an almost flawless democracy’ (Shirer 1960: 56). Yet this constitution, with its Article 48 providing for presidential emergency powers, both facilitated the spiral into fascist rule and provided the initial legal justifications for Hitler’s dictatorial measures.

Between 1919, when the Weimar Republic was instituted, and 1932, on the eve of Hitler’s appointment as German chancellor, Article 48 was invoked more than 250 times, most often in the context of economic upheavals (Gross and Ní Aoláin 2006: 84).

The Weimar Constitution also allowed the president to dismiss the chancellor, even if the chancellor retained the confidence of the Reichstag (parliament). Similarly, the president could appoint a chancellor who did not have the support of the Reichstag. In effect, the president acted as a ‘replacement Kaiser’, assuming powers the monarch would have wielded.

Formally, the constitution protected a list of civil liberties. The relevant articles included 114 (habeas corpus), 115 (inviolability of residence), 117 (correspondence privacy), 118 (freedom of expression/censorship), 123 (assembly), 124 (associations) and 153 (expropriation). Yet, these could be overridden by the exercise of emergency presidential powers.

Article 48 allowed the president, under certain circumstances, to take emergency measures without the prior consent of the Reichstag. The article did not precisely define the kind of emergency that would justify its use. The president had to inform the Reichstag immediately of the issuance of the emergency decree, and the Reichstag could nullify the decree by a simple majority.

In the event of a State not fulfilling the duties imposed upon it by the Reich Constitution or by the laws of the Reich, the President of the Reich may make use of the armed forces to compel it to do so.

If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153.

The President of the Reich must inform the Reichstag without delay of all measures taken in accordance with Paragraphs 1 or 2 of this Article. These measures are to be revoked on the demand of the Reichstag.

If danger is imminent, a State government may, for its own territory, take temporary measures as provided in Paragraph 2. These measures are to be revoked on the demand of the President of the Reich or of the Reichstag.

Details are to be determined by a law of the Reich.

From the very first years of the Weimar Republic, the extensive resort to Article 48 led to a broad interpretation of what was meant by ‘public security and order are seriously disturbed or endangered’. The Reichsgericht (Imperial Court of Justice) ruled that it permitted the president to ‘take any measure necessary to the restoration of the public safety and order … Absolutely everything that the circumstances demand is to be allowed him in warding off the dangers that imperil the Reich (Rossiter 1948: 64). Toward the end of the republic, Article 48 became practically the exclusive legal source for government action, with the legislative and administrative processes virtually suspended. The Reichstag became simply a rubber stamp of approval for presidential emergency measures, as did the courts (Gross and Ní Aoláin 2006: 85).

According to Gross and Ní Aoláin, ‘Article 48 instituted a modern version of the ancient Roman dictatorship’ (Gross and Ní Aoláin 2006: 83). Rossiter offered an apologetic view of its incorporation into the Weimar Constitution:

This charitable interpretation flies in the face of the historical record. The Weimar Republic was founded on the back of the suppression and defeat of the German revolution that initially overthrew the Kaiser and stopped World War I.

In an uprising that began in Kiel, workers’ and soldiers’ councils seized most of Germany, to put an end to the war and the monarchy. Upon the Kaiser’s abdication, the Social Democratic Party (SPD) and the anti-war Independent Social Democratic Party (USPD) assumed power in November 1918. However, this government refused to work with those who supported any type of council–socialist democracy and opted for a national assembly, meaning a transition to a parliamentary system (Hoffrogge 2014: 93–100).

Headed by Friedrich Ebert, the SPD government leaders sought an alliance with the military Supreme Command, which allowed the army and the Freikorps (right-wing militias) to violently suppress a second revolutionary wave that swept Berlin in January 1919, led by the Spartacist League of Rosa Luxemburg and Karl Liebknecht. Freikorps troops captured Luxemburg, Liebknecht and some of their supporters. Luxemburg was shot and her body thrown in Berlin’s Landwehr Canal. A new wave of repression then began in Berlin and across Germany. Thousands of Spartacist supporters and workers were killed, although strikes and other forms of resistance continued until May 1919 (Kershaw 1998: 110–12).

It was on this political foundation that a supposedly democratic constitution was adopted at Weimar in August 1919. It did not take long for the repressive purpose of Article 48 to be demonstrated. Ebert, the Weimar Republic’s first president, used Article 48 on 136 occasions, including to remove legitimately elected governments in the states of Saxony and Thuringia.

Ebert’s regime faced the constant danger of a resurgence of a working-class uprising, which was to erupt again in 1921 and 1923, as well as threatened coups by the military and the Nazis. During 1923, French and Belgian troops occupied the Ruhr and reignited the political and social crisis in Germany. The government’s counter-measures led to hyper-inflation, which devastated the lives of millions of people and triggered both an abortive coup by Hitler and a botched revolution led by the Communist Party (Trotsky 1971). Ebert’s regime relied on the military generals to survive and rested on a virtual military dictatorship for months in 1923–24, legitimised by the Weimar constitution (Broué 2006).

During the final period of the republic, from 1930 to 1933, Article 48 was invoked by President von Hindenburg repeatedly. Amid the economic breakdown of the Great Depression, it was used to override the Reichstag, on behalf of German big business, at the behest of successive chancellors – Brüning, Papen, Schleicher and ultimately Hitler (Kershaw 1998: 315–423).

Under the decree, issued by von Hindenburg on the basis of Article 48, the government was given authority to curtail constitutional rights including habeas corpus, free expression of opinion, freedom of the press, rights of assembly, and the privacy of postal, telegraphic and telephonic communications. Constitutional restrictions on searches and confiscation of property were likewise suspended. In the historian Kershaw’s words:

With one brief paragraph, the personal liberties enshrined in the Weimar Constitution – including freedom of speech, of association and of the press, and privacy of postal and telephone communications – were suspended indefinitely … The hastily constructed emergency decree amounted to the charter of the Third Reich. (Kershaw 1998: 459)

The Reichstag Fire Decree was one of the pivotal steps the Nazis took toward the establishment of a single-party dictatorship. Within a month, about 25,000 social democrats, communists, trade unionists and left-wing intellectuals had been dragged into improvised prisons, often in the cellars of SA or SS local headquarters, and savagely beaten, tortured and in some cases murdered in Prussia alone (Kershaw 1998: 460). With several key government posts in the hands of Nazis and with the constitutional protections on civil liberties suspended by the decree, the Nazis were able to use police power, as well as militias, to suppress, intimidate and arrest their opposition, in particular the communists. Hitler’s utilisation of Article 48 thus gave his regime the mark of legality.

The 5 March elections gave the Nazi–DNVP (German National People’s Party) coalition a narrow majority in the Reichstag. Nonetheless, the Nazis were able to secure on 23 March 1933 the passage of the Enabling Act by the required two-thirds parliamentary majority, effectively abrogating the authority of the Reichstag and placing its authority in the hands of the cabinet (in effect, the chancellor).

Over the years, Hitler used Article 48 to give his dictatorship the stamp of legality. Thousands of his decrees were based explicitly on the Reichstag Fire Decree, and hence on Article 48. The Reichstag Fire Decree was never abolished during the Nazi period; thus, for the next 12 years Hitler ruled under what amounted to martial law, with the help of Article 48.

Moreover, the Enabling Act was effectively a constitutional amendment. It met the constitutional requirements (two-thirds of the Reichstag’s members were present, and two-thirds of the members present voted in favour of the measure). That was because the Communist Party deputies were in detention (Kershaw 1998: 465–8). The Act did not explicitly amend the Weimar Constitution, but stated that the procedure sufficient for constitutional reform was followed. The constitution of 1919 was never formally repealed, but the Enabling Act meant that all its other provisions were a dead letter.

The final acts that Hitler took to consolidate his power in 1934 actually violated the Enabling Act. Article 2 of the Act stated: ‘Laws enacted by the government of the Reich may deviate from the constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat. The rights of the President remain undisturbed.’

The fascist dictatorship was ‘brought about by a combination of pseudo-legal measures, terror, manipulation – and willing collaboration (Kershaw 1998: 435). At every step of the way, the Nazis were assisted by the willing complicity of leading legal scholars. As Kershaw noted: ‘Some leading constitutional lawyers – most prominent among them Carl Schmitt, the renowned constitutional theorist who in 1933 would place himself at the service of the Third Reich – were ready with their legal arguments to back the introduction of an authoritarian state’ (Kershaw 1998: 384).

Great Britain’s Legacy

Britain has been portrayed as a bulwark of the ‘rule of law’, most notably by Dicey (Dicey 1962). But its history, including that of the twentieth and twenty-first centuries, has been characterised by the repeated adoption of emergency powers. These measures were implemented not only during both World War I and World War II but also in peacetime, particularly against industrial action by the working class and left-wing political activity, as well as in Ireland.

In effect, successive governments, with the eventual acquiescence of parliament, relaxed the principle that the Secretary at War should approve any troop call-out by a magistrate. As a result of the rising civil unrest, the courts elaborated a common law right and duty of magistrates to opt for military intervention. In a series of statements in his dual role as a judge and parliamentarian toward the end of the eighteenth century, Lord Mansfield resurrected the feudal posse comitatus doctrine, which had been effectively extinguished in the seventeenth century. Posse comitatus arose in the Middle Ages, when both law enforcement, including the suppression of riots, and the waging of war was conducted by the king or his local representative, the sheriff, conscripting able-bodied freemen into a posse (Greer 1983: 578–81).

Lord Mansfield insisted that this disused power could be resumed by local magistrates and Justices of the Peace. In 1781, the chief London magistrate, Brackley Kennett, was charged with criminal breach of duty for refusing to read the Riot Act and order military intervention to put down the Gordon Riots. He was convicted and fined 1,000 pounds. Lord Mansfield instructed the jury:

The common law and several statutes have invested justices of the peace with great powers to quell riots, because, if not suppressed, they tend to endanger the constitution of the country; and as they may assemble all the King’s subjects, it is clear they may call in the soldiers, who are subjects and may act as such; but this should be done with great caution. (Greer 1983: 582)

Probably the most notorious mobilisation of the military against civilian protesters was the Peterloo Massacre of 1819. Cavalry troops charged into a crowd of 60,000 to 80,000 people gathered at St Peter’s Field, Manchester for a public meeting, which had been declared illegal, to demand parliamentary representation. Shortly after the meeting began, local magistrates called on the military to arrest the speakers on the platform and to disperse the crowd. Soldiers on horses charged in with sabres drawn, killing 15 people and injuring 400–700, including women and children (Reid 1989). Whereas the arrested speakers were charged with sedition, found guilty and jailed, a test case against four members of the armed forces ended in acquittal, because the court ruled that their actions had been justified to disperse an illegal gathering (Reid 1989: 203–4).

Citing a range of sources and authorities, one scholar noted that both the parliament and the judiciary were prepared to cast aside constitutional principle in the face of rising social unrest, which reached new heights during the Chartist movement for voting and other basic rights:

The last English case in which calling out the troops was directly examined was the 1832 case of R v Pinney ((1832) 5 Car & P 254; 170 ER 962). The mayor of Bristol and nine aldermen were prosecuted by the Attorney General for breaching their common law duty to assemble a sufficient force to put down three days of riots during which thousands of people – some allegedly armed with ‘iron bars, iron crows, pickaxes, hammers, pieces of wood, and bludgeons’ – broke open a jail and forced the release of prisoners. A military major advised the mayor that it would be ‘imprudent to put arms in the hands of young troops’. The jury found the defendants not guilty.

The law report of R v Pinney also records Tindal LCJ’s Charge to the Bristol Grand Jury after the riots. Lord Tindal insisted that soldiers had a duty, as citizens, on their own authority to do their utmost to ‘put down riot and tumult’. Two officers who had refused to order the troops to fire without a magistrate’s sanction were found guilty of neglect of duty, causing one to commit suicide. The third officer, who had fatally shot a boy during an incident, was acquitted of manslaughter. Lord Tindal instructed the Grand Jury that if the shot was ‘discharged in the fair and honest execution of his duty, in endeavouring to disperse the mob’, the killing was justified and amounted to accidental death only (170 ER 962, 969).

During this period, social tensions were so acute that summoning military personnel could inflame rather than subdue disturbances: