Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-26T04:28:50.908Z Has data issue: false hasContentIssue false
  • English
  • Français

The Dilemmas of Dictatorship: Carl Schmitt and Constitutional Emergency Powers

Published online by Cambridge University Press:  09 June 2015

John P. McCormick
Get access

Extract

The first line of Carl Schmitt's Political Theology is perhaps the most famous sentence—certainly one of the most infamous—in German political theory: “Sovereign is he who decides on the exception” [Souverän ist, wer über den Ausnahmezustand entscheidet]. And yet the full significance of this famous sentence is often underestimated. I intend to focus upon 1) its significance in the overall trajectory of Schmitt's Weimar work, and 2) its potential significance for contemporary constitutional theories of emergency powers.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 10 , Issue 1: CARL SCHMITT , January 1997 , pp. 163 - 187
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1997

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Paper presented at the 17th IVR World Congress, Bologna, 16-21 June, 1995. For comments and criticisms on earlier drafts I thank Stephen Holmes, Ulrich K. Preuß and my panel co-participants in Bologna. However I am most deeply indebted to Bernard Manin from whom I have learned much about emergency powers in numerous conversations, from his lectures and his work-in-progress on the subject. The Fulbright Kommission supported this paper with a grant for a year of research at the Center for European Legal Policy, University of Bremen.

1. Political Theology: Four Chapters on the Theory of Sovereignty (1922), trans. Schwab, G. (Cambridge, MA: M.I.T. Press, 1986) at 5 Google Scholar [hereinafter PT]. German references to the work come from Politische Theologie: Vier Kapitel zur Lehre von der Souveränität (München: Duncker & Humblot, 1934) 11.Google Scholar

2. Die Diktatur: Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf (Berlin: Duncker & Humblot, 1989)Google Scholar [hereinafter D].

3. Politische Theologie, supra note 1 at 22.

4. See Watkins, F.M., The Failure of Constitutional Emergency Powers under the German Republic (Cambridge, MA: Harvard University Press, 1939)CrossRefGoogle Scholar(nils) at chs. 2 and 3, for an account of Ebert's use of Article 48 against the authoritarian Kapp Putsch of 1920, the Hitlerian Beer Hall Putsch of 1923, as well as against the many communist insurrections between 1919 and 1923. On Ebert's use of the article in the economic sphere, see Rossiter, C., Constitutional Dictatorship: Crisis Government in Modem Democracies (Princeton, NJ: Princeton University Press, 1948) at 41-43.Google Scholar On the context of the book, Die Diktatur, more specifically, see Bendersky, J., Carl Schmitt: Theorist for the Reich (Princeton, NJ: Princeton University Press, 1983) at 30-31.CrossRefGoogle Scholar

Under the rather broad powers provided for by Article 48, the directly-elected Reichspräsident could compel, with armed force if required, an individual state or Land to comply with federal law (para. 1); and he could take ‘necessary measures’ to restore or protect ‘public order and safety’ by suspending constitutional rights and by recourse to armed force when public order was ‘disturbed or endangered’ (para. 2). The limits to the President's emergency powers as enumerated within the article itself include the immediate informing of the general parliamentary body, the Reichstag, of any emergency action, the Reichstag 's right of revoking such action (both para. 3), and a statute to prescribe the exact details of the President's authority (para. 5); from without the article itself, the counter-signature of the Chancellor of the parliamentary government was required for all presidential measures including those issued under Article 48 (Art. 50) and there existed a constitutional provision for impeachment (Art. 43). The President could by-pass such restrictions by dissolving the Reichstag (Art. 28) or by colluding with the Chancellor (and as an aside, the statute to circumscribe presidential emergency powers was never enacted. Social Democrat Ebert did not abuse the constitution in any of these ways during the Republics early period of crisis, as did conservative Paul von Hindenburg in machination with successive right-wing Chancellors (Brüning, von Papen and von Schleicher), during the second and final period of crisis between 1929 and 1933. See Bracher, K.D., Die Auflösung der Weimarer Republik: Eine Studie zum Problem des Machtverfalls in der Demokratie (Düsseldorf: Droste, 1984)Google Scholar, Peukert, D., The Weimar Republic: The Crisis of Classical Modernity (New York: Hill and Wang, 1987)Google Scholar, Winkler, A., Weimar: 1918-1933 (München: C. H. Beck, 1993)Google Scholar and Heiber, H., The Weimar Republic, trans. Yuill, W.E. (Oxford: Blackwell, 1993)Google Scholar. I will deal with Schmitt's writings on presidential emergency powers and complicity with the right-wing constitutional usurpers during this period in later sections of this paper.

5. Schmitt's one-time student, Otto Kirchheimer, criticizes the way that socialists wrongly define dictatorship and cites, problematically, Die Diktatur and Politische Theologie as equivalents (see “The Socialist and Bolshevik Theory of the State” [published 1928] in Burin, F. S. & Shell, K. L., eds., Politics, Law and Social Change: Selected Essays of Otto Kirchheimer (New York: Columbia University Press, 1969)Google Scholar 6). He goes on to paraphrase Schmitt on the apparently commissarial yet actually sovereign nature of Bolshevik dictatorship, ibid. at 15. As faithful as Schmitt's leftist students often were to Schmitt's theory of dictatorship their frequent equating of the arguments of Die Diktatur and Politische Theologie have done as much to obfuscate as to clarify the crucial issues involved (Kirchheimer repeats this equation in his essay from 1944, “In Quest of Sovereignty”, ibid. 191). On the specifics of Schmitt's intellectual relationship to leftist legal scholars such as Kirchheimer, O. and Neumann, F., see Scheuerman, W.E., Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge, MA: M.I.T. Press, 1994)Google Scholar [hereinafter Between the Norm and the Exception].

6. On Schmitt's appropriation of the etymological-theoretical distinction from Jean Bodin, and for a general discussion of the thesis, see Schwab, G., The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt between 1921 and 1936 (New York: Greenwood Press, 1989) at 30-31 Google Scholar [hereinafter The Challenge of the Exception].

7. Interestingly, Schmitt's complaint from the 1920s is still relevant today, as the ‘bourgeois political literature’ in English on dictatorship and emergency powers is paltry and outdated: besides the classics by Watkins, and Rossiter, , supra note 4Google Scholar, see most recently Finn, J.E., Constitutions in Crisis: Political Violence and the Rule of Law (Oxford: Oxford University Press, 1991)Google Scholar and LoBel, J., “Emergency Powers and the Decline of Liberalism” (1989) 98 Yale, L. J. 1385.Google Scholar It is still the left that exhibits more interest in the concept of dictatorship. Two post-Marxists influenced by Schmitt who have written extensively on the subject are Paul Hirst and Norberto Bobbio. Schmitt's one-time student, leftist lawyer Franz Neumann, remarked in the 1950s: “Strange though it may seem, we do not possess any systematic study of dictatorship.” He cites Schmitt's Die Diktatur but declares with no explanation that “his analysis is not acceptable” (”Notes on the Theory of Dictatorship” [published 1954] in Marcuse, Herbert, ed., The Democratic and the Authoritarian State: Essays in Political and Legal Theory (New York: The Free Press, 1957) at 233, 254, n.Google Scholar 1). As I will argue, this conclusion can only be drawn by conflating the respective analyses of Die Diktatur with Political Theology.

8. Schmitt distinguishes between dictatorship and military government, or the state of siege, in “Diktatur und Belagerungszustand: Eine staatsrechtliche Studie”, Zeitschrift fur die gesamte Strafrechtswissenschaft (1917) at 38. For an extensive discussion of the essay that may however too baldly read back into this early work Schmitt's later more extreme authoritarianism, see Caldwell, P.C., Constitutional Theory in the Weimar Republic: Positivists, Anti-Positivists and the Democratic Welfare State (Doctoral Dissertation, Department of History, Cornell University [08 1993]) [hereinafter Constitutional Theory in the Weimar Republic].Google Scholar

9. For an alternative account to the one offered by Schmitt of Machiavelli's conception of exceptional circumstances and the institutional means with which to deal with them, see McCormick, John P., “Addressing the Political Exception: Machiavelli's Accidents and the Mixed Regime” (1993) 87 Am. Pol. Science Rev. 888).Google Scholar

10. On Schmitt's appropriation of Hobbes, see Münkler, H., “Carl Schmitt und Thomas Hobbes” (1984) 29 Neue Politische LiteraturGoogle Scholar; Dyzenhaus, D. L., ‘”Now the Machine Runs Itself”: Schmitt, Carl on Hobbes, and Kelsen', (1994) 16 Cardozo L. Rev. 1Google Scholar; and McCormick, John P., “Fear, Technology and the State: Carl Schmitt, Leo Strauss and the Revival of Hobbes in Weimar and National Socialist Germany” (1994) 22 Pol. Theory 619.Google Scholar

11. See Schwab, G., “Introduction” in PT, xv, n. 11.Google Scholar

12. On Schmitt, and Weber, , see Mommsen, W., Max Weber and German Politics, 1890-1920, trans. Steinberg, M. S. (Chicago, IL: University of Chicago Press, 1984)Google Scholar. For discussion of Schmitt and Weber that deals specifically with the relationship between dictatorship and charisma, see Ulmen, G. L., Politische Mehrwert: Eine Studie über Max Weber und Carl Schmitt (Weinheim: VCH Acta Humaniora, 1991) 390-400 Google Scholar. Ulmen correctly points out that Weber, unlike Schmitt always associated dictatorship with charisma and hence as a kind of Caesarism, whereas Schmitt, at least in Die Diktatur, recognizes and emphasizes the purely functional nature of the classical notion of commissarial dictatorship. But as George Schwab observes, and as I will demonstrate more specifically below, Schmitt moves increasingly toward the charismatically-imbued sovereign type of dictator after the publication of the work; see The Challenge of the Exception, supra note 6 at 40, 44.

13. Schmitt discusses in great detail the supposed dangers of literal constitutional interpretation in Schmitt, C. Verfassungslehre (1928) (Berlin: Duncker & Humblot, 1989) at 26-27, 56, 110, 125, 146, 200.Google Scholar

14. On Schmitt's early neo-Kantianism generally, see Bendersky, J., Carl Schmitt: Theorist for the Reich, supra note 4 at 8-11 Google Scholar; and on his early theoretical proximity to his later intellectual adversary, Kelsen, neo-Kantian H., see Caldwell, , Constitutional Theory in the Weimar Republic, supra note 8.Google Scholar

15. On the relationship between the French-revolutionary theory of sovereignty and Schmitt's own, see Breuer, S., “Nationalstaat und pouvoir constituant bei Sieyès und Carl Schmitt”, [1984] Archiv für Rechts- und Sozialphilosophie LXX Google Scholar; and Pasquino, P., “Die Lehre vom pouvoir constituant bei Abbé Sieyès und Carl Schmitt: Ein Beitrag zur Untersuchung der Grundlagen der modernen Demokratietheorie” in Quaritisch, H., ed., Complexio Oppositorum: über Carl Schmitt, (Berlin: Duncker & Humblot, 1988)(nils)Google Scholar. On the contemporary ramifications of this conception of sovereignty, see Preuß, Ulrich K., “The Politics of Constitution Making: Transforming Politics into Constitutions” (1991) 13 Law & PolicyGoogle Scholar; “Constitutional Powermaking for the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution” (1993) 14 Cardozo L. Rev. 639 at 651-52; as well as the essays included in Revolution, Fortschritt und Verfassung (Frankfurt a/M: Fischer Verlag, 1994).

16. The Crisis of Parliamentary Democracy, trans. Kennedy, Ellen (Cambridge, MA: M.I.T. Press, 1985) at c. 4 [hereinafter Parliamentarism].Google Scholar

17. “The Age of Neutralizations and Depoliticizations (1929)”, trans. Konzett, M. & McCormick, J.P., (1993) 96 Telos 119 at 130.Google Scholar

18. In claiming that Schmitt is attempting to formulate a radical answer to the external threat of the Soviet Union and the internal one of working class parties, I am in accord with Mehring, R., Pathetisches Denken. Carl Schmitts Denkweg am Leitfaden Hegels: Katholische Grundstellung und antimarxistische Hegelstrategie (Berlin: Duncker & Humblot 1989)CrossRefGoogle Scholar (nils), although I differ with him on the specifics of Schmitt's ‘anti-Marxism’ as well as the playing-out of his alternative ‘Hegelian strategy.’

19. “Die Diktatur des Reichspräsident nach Art. 48 der Weimarer Verfassung” (1924), appended to subsequent editions of Die Diktatur [hereinafter D2]; Der Hüter der Verfassung (Tübingen: Verlag von J.C.B. Mohr [Paul Siebeck], 1931) [hereinafter HV]; and Legalität und Legitimität (München: Duncker & Humblot, 1932) [hereinafter LL from the reprint in Verfassungsrechtliche Aufsätze aus den Jahren 1924-1954: Materialien zu einer Verfassungslehre (Berlin: Duncker & Humblot, 1958)].

20. Ernst Fraenkel, for instance, describes the whole book as an attempt to ‘exploit’ Article 48; see The Dual State: A Contribution to the Theory of Dictatorship (1941), trans. Shils, E. A. (New York: Octagon Books, 1969) at 213, n.17.Google Scholar This does not prevent him from explicitly appropriating Schmitt's distinction between commissarial and sovereign dictatorship (at 213, n.4). To his credit though, Fraenkel is more sensitive than Schmitt ever was to the fact that an emergency can very easily be used as an occasion for a coup (10). Another of Schmitt's Leftist students, Otto Kirchheimer, reminds us that modem emergency powers are used more often than not to reintegrate the proletariat into the state order: see “Weimar—and What Then?” (1930) in Politics, Law and Social Change, supra 33, supra note 5 at 42. There is indeed vast historical precedence for this as it should be pointed out that despite the positive light in which I have presented the Roman institution of dictatorship, it was quite often used as a tool by the Roman Senate to keep the plebeians at bay.

21. There is little scholarly consensus on the exact moment of Schmitt's conversion to sovereign dictatorship: Renato Cristi, for instance, locates it already in the 1921 main text of Die Diktatur, while Stanley L. Paulson dates it even after the 1924 “Article 48” essay: R. Cristi, “Carl Schmitt on Sovereignty and Constituent Power” (Paper presented at the 17th IVR World Congress, Bologna, 16-21 June, 1995) [unpublished]; and S.L. Paulson, “The Reich President and Weimar Constitutional Politics: Aspects of the Schmitt-Kelsen Dispute on the ‘Guardian of the Constitution’” (Paper presented at the Annual Meeting of the American Political Science Association, Chicago, 31 August-3 September, 1995) [unpublished].

22. For a detailed account of this strategy, see Maus, I., Bürgerliche Rechtstheorie und Faschismus: Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts (München: C. H. Beck, 1980) at 127-31.Google Scholar

23. On the radically-dynamic as opposed to statically-conservative character of Schmitt's socio-economic proposals, see Ibid. at 109, 126.

24. On Schmitt's analysis of this relationship, see Cohen, J. & Arato, A., Civil Society and Political Theory (Cambridge, MA: M.I.T. Press, 1992).Google Scholar

25. Kelsen, H., “Wer soll der Hüter der Verfassung sein?” (1930/31) 6 Die Justiz.Google Scholar

26. ‘Action-Commissar’ (Aktionskommissar) is an allusion to the Reichskommissar who was the agent of the federal government, appointed in exceptional circumstances to govern over a particular territoriality within Germany, in place of the local authorities, who was answerable ultimately only to the Reichspräsident. Schmitt uses the term here because it evokes “commissarial” emergency action in name when in fact it was becoming increasingly a tool for the right-wing government's ‘sovereign’ emergency action in the early 1930s.

27. In the Autumn of that very year Schmitt had a chance to put his theory of presidential dictatorship into practice before the High Court by justifying the German state's ‘emergency’ seizure of Prussia's social-democratic Land government and appointment of a Kommissar to replace it earlier in July. For an excellent account of the historical events leading up to the state's coup and the theoretical-political stakes in the subsequent court hearing, see Dyzenhaus, D.L., Truth's Revenge: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Oxford University Press [forthcoming]).Google Scholar

28. On the subject of Schmitt's involvement with National Socialism, see Rüthers, B., Carl Schmitt im Dritten Reich: Wissenschaft als Zeitgeist-Verstärkung? (München: C. H. Beck Verlag, 1989).Google Scholar

29. Another of Schmitt's students, historian Reinhart Koselleck, traces the historical decline of attention to the ‘contingent’ in the Enlightenment in Futures Past: On the Semantics of Historical Time (published 1979), trans. Tribe, K. (Cambridge, MA: M.I.T. Press, 1985) at 119-25.Google Scholar

30. Locke, John, “The Second Treatise on Government”, ch. XIV at para. 159, lines 15-19, in Two Treatises on Government, Laslett, P., ed., (Cambridge: Cambridge University Press, 1988) at 375.CrossRefGoogle Scholar Or as he defines it more succinctly later in the text: “Prerogative being nothing, but a Power in the hands of the Prince to provide for the publick good, in such Cases, which depending upon unforeseen and uncertain Occurrences, certain and unalterable Laws could not safely direct, whatsoever shall be done manifestly for the good of the people” (ch. XIII, para. 158, line 15-20; at 373).

31. See Montesquieu, Baron de Charles de Secondat, The Spirit of the Laws, trans. Cohler, A. M., Miller, B.C. & Stone, H.S., eds., (Cambridge: Cambridge University Press, 1989), XI, 6.Google Scholar

32. Manin, B., “Checks, Balances, and Boundaries: The Separation of Powers in the Constitutional Debate of 1787” in The Invention of the Modern Republic, Fontana, B., ed., (Cambridge: Cambridge University Press, 1994) 41, n. 51.Google Scholar

33. Ibid. at 41. Albert Dicey even went as far as to define the rule of law exclusively as the opposite, not only of ‘arbitrariness’, but also ‘of prerogative, or even of wide discretionary authority on the part of the government’ (see Dicey, A.V., Introduction to the Study of the Law of the Constitution [orig. pub. 1915] [Indianapolis, ID: Liberty Classics, 1982] at 120)Google Scholar. A more nuanced definition of the rule of law is offered by Gaus, F.F., “Public Reason and the Rule of Law” in Shapiro, Ian, ed., The Rule of Law (NOMOS XXXVI) (New York: New York University Press, 1994).Google Scholar

34. Without recourse to specifically-enumerated, constitutionally-legitimated emergency provisions to address a large scale political rebellion in the American Civil War, Abraham Lincoln was forced to stretch the traditional means of suspending habeas corpus far beyond reasonable limits, putting himself in the position of being called a tyrant in his sincere attempt to preserve the republic. Constitutional enabling provisions would prevent a legitimately acting executor from running the risk of compromising his or her legitimacy at a time when it is most important. On these issues, see Sharpe, R.J., The Law of Habeas Corpus (Oxford: Oxford University Press, 1991) and Neely, M.E. Jr., The Fate of Liberty (Oxford: Oxford University Press, 1991).Google Scholar

Another case in point from the American context is Franklin Roosevelt's well-known and perhaps over-extended appeal to the ‘general welfare’ clause of the preamble of the U. S. Constitution as justification in dealing with the economic emergency of the Great Depression. A far-fetched justification for emergency measures may in some respect compromise a constitution at the very moment when it is most threatened, should the appeal be successfully challenged as illegal and in fact illegitimate. The respective ‘successes’ of the two emergency actors in these two examples should not be taken at face value as proof of the efficacy of not having constitutional provisions—the political proficiency of the respective political leaders and the ‘prudence’, allegedly characteristic of the American populace, surely cannot be counted upon in all circumstances of crisis. Blind faith in the inevitable emergence of true ‘statesmen’ and the acquiescence to them by an understanding ‘people’ in times of crisis is as unreasonable and naive as is the complete trust in purely constitutional means of addressing political emergencies consistently and rightfully derided by Realpolitikers.

35. Indeed, the devious acumen of Schmitt's Weimar political strategy lies in the fact that he points out liberalism's theoretical deficiencies vis-à-vis the ‘exception’ at the very historical moment when liberalism is grappling with the socio-political reality of the exceptional or situation-specific measures implemented by the twentieth century welfare state in the German context. Schmitt intimates that his authoritarian interventionism is more appropriate to the historical reality of such exceptionalism than anything liberalism could ever offer. On Schmitt and the exceptionalism of welfare state law, see Scheuerman, W.E., Between the Norm and the Exception, supra note 5.Google Scholar

36. After all, the framers of the United States constitution of 1787 are perhaps the most famous practitioners of separation of powers and checks and balances. In the essays defending the constitution collected as The Federalist Papers (New York: Mentor, 1961), it is interesting to observe the contrast between the papers written by James Madison, on the one hand, the liberal technician who seeks to account for all possibilities by enumerating them or building them into the constitutional mechanism, and Alexander Hamilton, on the other, the proponent of political prerogative who seeks to keep open the possibility of exceptional circumstances. In his study of parliamentarism, Schmitt, not surprisingly, criticizes the Madisonian Federalist Papers, and praises the Hamiltonian ones (see Parliamentarism, supra note 16 at 40, 45).

37. For a more fully elaborated argument of how such constitutional procedures do not hinder democratic expression but rather render it more articulate, see Holmes, S., “Precommitment and the Paradox of Democracy” in Elster, J. & Slagstad, R., eds., Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988).Google Scholar

38. The U.S. Constitution seemingly identifies the document itself, and thereby the sovereign popular will manifested within it, with the institution of the President. In a way that it does not for any other representative of any other governmental branch, the constitution dictates the inaugural oath for the President and concludes it with the declaration that he or she will “preserve, protect and defend the Constitution of the United States” (Art. II, sec. 1, para. 8). But this is certainly an attempt at an added precaution against the branch that is the most likely institutional threat to the constitution rather than any substantively-existential equating of the document to the office itself. Ironically, the Weimar constitution contained an oath for the Reichspräsident that less explicitly identified the institution as a ‘guardian’ of the constitution in the existential Schmittian sense than does the U. S.'s oath (Weimar Article 42 requires only ‘observance’ of the constitution by the president). The Basic Law of the German Federal Republic also enumerates an oath for its President (Art. 56), whose role is, however, more ceremonial than that of the U. S. or the Weimar president.

The French Constitution of 1958 is perhaps a more problematic example of the relative identity of the executive to constitutionally-expressed popular sovereignty because its definition of the presidency was clearly framed with the charismatic Charles De Gaulle in mind. Article 5 declares that the President “shall see that the constitution is observed, … shall ensure the proper functioning” of the government, and ‘the continuity of the state’, as well as serve as, among other things, the ‘guarantor of national independence.’ But surely these clauses can be interpreted as statements regarding the functional efficacy of the President's performance of these duties rather than as pronouncements of his or her personal identification with the constitution, the government, the state and the nation.

39. Article 16 of the French constitution allows for the President's initiative in emergency circumstances after he or she first ‘officially consults’ with representatives of the other governmental branches. The post-war German constitution—which does not have a specific article dealing with emergencies but rather disperses such provisions throughout the constitution (no doubt in reaction to the ‘fate’ of the singular Article 48 in Weimar)—generally gives emergency initiative to the ‘Federal Government’ or cabinet (and hence de facto to the Chancellor whose office and person is seldom mentioned explicitly in these provisions) provided that there is either consultation with the Bundestag or the Bundesrat, or a power of revocation residing with either of those bodies (e.g., Art. 35: natural disasters—revocation by Bundesrat; Art. 37: federal coercion of individual Länder to comply with federal law—consent of Bundesrat; Art. 81, paras. 1 & 2: the so-called ‘legislative emergency’ where the Government in conjunction with the Bundesrat overrule the Bundestag on a law; Art. 87a, para. 4: use of armed forces against insurgents—revocation of Bundestag and Bundesrat; Art. 91, para. 2: appropriation of local police forces by the Federal government—rescinding by Bundesrat. Only the complicated Art. 115a employs a clearcut authorization: the ‘state of defence’ is requested by Chancellor, and then determined by Bundestag and Bundesrat). The general point is whether the determinate quality of an act of authorization by one body over another is superior to the vagueness inherent in a ‘consultation’ between them. Also, it may be arguably more legitimate for one body to revoke the action of another body if that first body commissioned or authorized the action rather than was merely a “consultant” in the emergency initiative.

40. Most of the new constitutional regimes of Central and Eastern Europe deal with emergency powers through the authorization method that, according to the criteria established here, may be judged superior to most Western efforts. The majority of these new constitutions call for parliamentary declaration on the crisis with subsequent executive action to address it (even if in certain cases the executive may request such authorization or even declare a state of emergency when the legislature is not in session, dependent on its subsequent approval). See the following constitutions and provisions: Bulgaria (Art. 84, para. 12; Art. 100, para. 5); Estonia (Arts. 129, 65, para. 14; Art. 78, para. 17); Hungary (Art. 19, para. 3, h, i; Art. 15, para. 4); Slovenia (Arts. 108, 92); and Serbia (Art. 83, para. 8). And even those constitutions that allow for a rather wide latitude for executive prerogative in emergencies, nevertheless put some serious checks in place: e.g., Latvia (Art. 62), Lithuania (Art. 84, para. 17), Rumania (Art. 93) Slovakia (Art. 102, para. 1), and Poland (Art. 37, para. 1; Art. 46) which is the only regime to use the classical element of a time limit (three months, renewable). There are really only two extreme cases in the region: the Czech Republic which has no emergency powers provision at all in the constitution and Croatia whose own provision (Art. 101) is more expansive in its scope of presidential emergency power than was even Weimar's Article 48.