The concept of crisis government is founded on the assumption that in certain situations of political, military, or economic emergency the system of limitation and balance of power typical of a constitutional government has to give way before the enlarged power of the executive or even the military.
There exist, however, vast differences of opinion as to the theoretical foundation and the range of practical measures, as well as to their legal interpretation and political justification. Moreover, historical experience shows that the institution of crisis government can often bring about the very consequences of political and social crisis that it was designed to prevent. If employed prematurely, it may impede further attempts at solving the problems by the means of constitutional government. Provisions of crisis government may thus invite dictatorial ambitions of political parties, groups, and persons. When practiced over a longer period, those provisional emergency arrangements designed for the protection of the existing constitutional order may even become tools for pseudolegal revolution and dictatorial domination at the cost of that order.
Historical examples . For reasons of political logic and practical experience, the problem of crisis government has occupied political theory from its beginning, but in particular since the rise of the modern state. In antiquity the constitutional framework of the Roman Republic, with its emergency provision of a temporary dictator, represented the most elaborate attempt at institutionalizing crisis government, as distinct from Oriental despotism and unlimited tyranny. The concept of “constitutional dictatorship” contained, however, the ever-present danger of turning into permanent dictatorship. The Roman institution of a temporary dictator nominated for a period of six months by the acting consul—who alone had the power to proclaim or prolong the state of emergency that gave the dictator his special powers—was applied successfully during the earlier history of the republic. However, with the emergence of revolutionary generals in the civil wars of the first century b.c., it was turned into a permanent regime leading to the dictatorships of Caesar and his successors.
Modern constitutional arrangements reflect the same lack of distinction between constitutional emergency provisions and legalized dictatorial regimes. The transition from the first republic in France to the regime of Napoleon is a classical example of a pseudo-revolutionary turnover. Between the two world wars, many feeble democracies surrendered to the same tendency. The proclamation of a protectionist dictatorship to meet crisis situations determined developments in Italy (Mussolini), Poland (Pilsudski), Turkey (Kemal Atatürk), Spain (Primo de Rivera and Franco), Portugal (Salazar), Germany (Papen and Hitler), Austria (Dollfuss and Schuschnigg), and the Balkan countries; in South America, such developments belonged to everyday politics.
In Germany, Hitler’s coming to power was a clear result of use and misuse of the emergency powers given to the president of the Weimar Republic. Under article 48 of the constitution he had the right to subsede normal parliamentary legislation by crisis decrees and to apply military force for the execution of such federal decrees in the states. In 1923, under a democratic president (Ebert), this power was exercised as a strictly temporary measure for the protection of the republic; after 1930, under Hindenburg, emergency government became gradually institutionalized, and parliamentary controls were paralyzed by successive dissolutions of parliament. It was at this very point that antidemocratic forces of the right succeeded in breaking up the constitutional government. The Nazi dictatorship was founded and legalized by posing as a presidential crisis government, before Hitler managed to override parliament and to suppress the non-Nazi groups, which until the last party elections (March 1933) commanded a majority of German votes.
Although these examples demonstrate the dangers contained in the institution of crisis government, many exponents of constitutional theory maintain that emergency provisions remain essential to the existence and maintenance of democratic regimes. The discussion distinguishes between emergency situations caused by exterior forces (military threat, war) and revolutionary situations conditioned by domestic developments. Since disturbances in the operation of parliamentary governments can hardly be cured by extraparliamentary provisions, it remains open to discussion whether emergency articles should be formally included in a constitution and how far they should be applied to either external or internal crises. Consequently, constitutional structure and political practice in modern democracies have attempted many varied solutions. In substance, the problem is always how far civil rights may be restricted and to what degree such increased executive power should be transferred to certain bureaucratic, political, or even military authorities.
Contemporary provisions . In such Western democracies as the United States, Great Britain, and Switzerland, the constitutions contain no explicit clauses regarding crisis government. To meet emergency situations, either parliament is expected to convey necessary powers to the government or constitutional theory agrees on implied and inherent powers for the president (as in the United States). By common understanding, however, the controls by the courts and parliamentary legislation are not to be curtailed by such concentration of power.
The constitution of the semiauthoritarian French Fifth Republic (1958), which is reminiscent of the dualistic, parliamentary—presidential structure of the Weimar Republic, contains far-reaching emergency powers conferred on the president “when the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfillment of its international obligations are threatened with immediate and grave danger, and when the regular functioning of the constitutional governmental authorities is interrupted” (France, Constitution, 1958, art. 16).
Such sweeping stipulations, while leaving everything to the personal qualities and intentions of the president, contain all the dangers discussed above. This certainly does not present a strong case for institutionalized emergency provisions. Nevertheless, there are strong efforts in West Germany to change the constitution of 1949 and to add an “emergency constitution” that would allow for restrictions on civil rights and suspension of parliamentary legislation by government decrees, with controls remaining (as a compromise formula) in a small committee of the two houses of parliament. In the author’s opinion, this contradicts the original intentions of the Bonn constitution, which was designed to avoid the mistakes of Weimar by substituting for emergency provisions strong regulations against antidemocratic activities as well as regulations supporting stable governments and working majorities in parties and parliament.
Problems of crisis government. The basic problems posed by any attempt to provide, by constitutional and institutional means, for strong crisis government may thus be summarized in five questions.
(1) Who is to be in charge of proclaiming the state of emergency, or the need for crisis government? A widespread view, often justified with technical reasons and arguments of greater efficiency, tends to leave it to the executive. This coincides with a general tendency toward the bureaucratic administrative state; yet it contradicts the practice of proved democracies to maintain the responsibilities of parliament. The right to declare a state of emergency should be reserved to an organ not invested with the powers derived from that state. For the same reason, this requires a qualified majority larger than the governing majority.
(2) When does the state of crisis eventuate, and how can it be defined? In general, the practice of confining crisis government to the case of war appears the least dangerous way. All attempts to apply it to situations of “imminent danger” (as in recent German drafts) or domestic problems (as in the Weimar Republic and Fifth French Republic) will lead into a jungle of divergent interpretations inviting misuse of power and enabling the overthrow of democratic government by one-party systems or military dictatorship, thus paving the way to authoritarian or totalitarian regimes.
(3) What does crisis government really mean? Here again the basic distinction would be between (a) a concentration of power functions, with some simplification of the governmental process in the framework of responsible government that leaves intact the competence of legislatures and courts; and (b) the concept of temporary dictatorship, which, suspending the democratic system and the rule of law, aims at empowering the executive to enact laws on its own authority. In the first case, the parliament may temporarily yield power to the executive by passing “enabling acts,” but retains its prerogatives; in the second case, the executive commands emergency powers to be mobilized by a proclamation of a state of emergency and effected by decrees. However, there is wide agreement that the constitution should not be changed during the period of emergency.
(4) Which controls are to remain or should be introduced to reduce the dangers inherent in any of these solutions? The answer again depends on the degree to which responsible government is abandoned in favor of a bureaucratic and dictatorial interregnum. If crisis government means merely a strengthening of democratic government by bipartisan politics or an all-party coalition government, no basic changes in the system of controls seem necessary. On the other hand, any serious shift in function between the legislative and executive agencies, even if only for a restricted period, requires special controls designed to meet the dangers of unrestricted government with its tendencies to perpetuate and extend the anomalous power situation.
Among the institutions granting a minimum of essential control, so that the efforts to defend democracy do not destroy the very existence of democracy are parliamentary committees and councils representing various groups, an independent position for the constitutional courts, and the widest possible freedom of the press. The question remains whether the principle of voluntary cooperation and self-restriction as practiced in countries without fixed emergency provisions (e.g., Switzerland or Britain during the war) is not more effective than the most elaborate schemes of crisis government, since these will never be able to foresee all the actual forms of emergency measures necessary in a future crisis.
(5) How is crisis government ended? The end of crisis government poses a final problem that all constitutions with emergency provisions have to meet with special care. Considering the crucial danger of constitutional dictatorship—its perpetuation and transformation into a new regime—the question of who, how, and when an emergency government is to be terminated and must relinquish its powers is the acid test of any institutionalized crisis government. Such a decision can certainly not be left to the executive enjoying his increased power; it appears as the particular function of the parliament. But this implies a continuity of parliamentary life during the period of suspension. In fact, unlike the Weimar constitution, that of the Fifth Republic makes the dissolution of parliament impossible during the period of emergency government. After specifically limited periods, parliament must always be in a position to decide on the end (or continuation) of emergency politics.
Crisis government and democracy . Any review of the problems arising from the attempts, old and new, to design safe and effective forms of crisis government leaves doubts as to their compatibility with democratic systems. In many cases, such attempts have been favored by exponents of political theory or practice who turned out to be more interested in nondemocratic rule. One well-known example is Carl Schmitt, the German professor of public law who started by posing perfectionist demands to the democratic state, then concentrated on the “decisionist” superiority of emergency government (decision before constitution), only to become the outstanding protagonist of Hitler’s totalitarian dictatorship. In other cases, as in present-day France or West Germany, the antiparty effect of a great man or the perfectionism of a bureaucracy may be the prime mover behind the schemes for institutionalizing crisis government, advocated as they may be by arguments of military threat, anticommunism, socioeconomic problems, or the failure of parliamentarism.
But historical experience as well as political reasoning favor the other side. In times of crisis, government should be founded on as broad a basis as possible, with parliament, parties, and a free press participating in, not eliminated from, the political mastering of the problems. This contradicts the widespread assumptions that democracy is feasible during “normal” times only; that the stronger a state has to be the less democratic it can be; that security can be achieved by constitutional perfection and elaborate precautionary measures; and that bureaucratic government without parliamentary interference would grant a higher degree of efficiency in handling emergency situations.
Constitutional possibilities, once established, always produce an appetite to use them. What is more, they tend to seduce the responsible authorities—parties and parliament—to escape from difficult or unpopular situations by leaving the field to emergency measures that do not have to be justified to the public. Such political and psychological consequences can hardly be avoided, unless all elements of the democratic state remain fully incorporated into the mechanism of emergency rule. Crisis government remains a task of democratic cooperation and trust in the final superiority of free societies with responsible governments, rather than a matter of reshaping constitutions and suspending basic rules of democracy. Good as the purpose of such experiments may be, the way back to a normal situation is most difficult once the road toward dictatorial forms of government has been pointed out.
Karl Dietrich Bracher
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