A dictatorship is the exercise of state power free of legal constraints for the purpose of overcoming an abnormal state of affairs, in particular war or civil unrest. What is decisive for the concept of dictatorship is therefore, firstly, the idea of a normal state of affairs, which is to be restored or brought about by the dictatorship, and, secondly, the idea of certain legal barriers which are to be suspended in the interest of eliminating the abnormal state of affairs. Over the past few centuries, this concept of dictatorship has developed according to an imprecise and general usage of the term, and has incorrectly been used to speak of any situation wherein command or rule [Herrschaft] is exercised. This concept develops from an institution of Roman constitutional law called dictatorship.
I. Dictatorship in Roman Law
According to chapter 2, section 18 of Titus Livius’ book The History of Rome, the first dictator was either M. Valerius (505 BC) or T. Lartius (501); Cicero mentions the latter in De re publica chapter 2, §56. According to the canonical account, especially that of Livius, dictatorship seems to have been primarily a means of combating the Plebeians in matters of domestic political struggle. It is, however, doubtful whether the older accounts of dictatorships being implemented for the suppression of a revolt (seditionis sedandae causa) are authentic. According to W. Soltau, there was no dictator who dealt with seditionis sedandae causa prior to the dictatorship of Hortensius in 272 BC, and in the old republic, the dictator was the federal general who marched at the head of the Latin army when it was called up in an emergency. In any case, this older form of dictatorship became impractical over time; from 202 to 82 BC (Sulla), there were no more dictatorships. From 133 to 40 BC, the Senatus Consultum ultimum appeared as a means of combating domestic opponents. This was based on the Senate relying on the consuls to ensure the security of the state (rem publicam commendare, rem publicam defendere). The consuls then considered themselves to be authorized to proceed without legal restrictions against Roman citizens who were labelled opponents of the existing order. In 82 BC, Sulla was appointed dictator rei publicae constituendae for an indefinite period by virtue of a special law; in 46 BC, Caesar became dictator, initially for one year, but the term of office was eventually extended to life. These dictators established a legally unrestricted power [Gewalt], yet the only thing they have in common with the old forms of dictatorship is the title of ‘dictator.’
II. Dictatorship since the Renaissance
The political writers of the Renaissance used the term dictatorship in the same way as the writers of classical antiquity. Machiavelli in particular, in the Discourses on the First Decade of Titus Livius (1531), discusses numerous cases of dictatorship after giving a historical account of Livius. Machiavelli, like most writers from the 16th to 18th centuries, saw dictatorship as an essential institution of the free Roman Republic. The entirety of the political literature on the raison d’état and on the so-called arcana (state secrets) maintains a particular interest in this institution, but does not yet expand the concept of dictatorship in the modern sense, instead regarding it as one of the specific institutions of an aristocratic republic, i.e. as an instrument of the aristocrats’ domestic political struggle against the plebeians.
III. The Dictatorship of the State of Emergency
Dictatorship as a general term was first introduced into political and constitutional literature by the French Revolution, with the so-called dictatorship of the Jacobins. The term thus took on the meaning of an exceptional suspension [Aufhebung] of legal barriers, whereby both the extent and the degree of the suspension, as well as what the legal status of the law to be suspended is, can vary. Ever since that time, dictatorship has been characterized as a suspension of the separation of powers (legislative, executive, judicial), since this “separation of powers” was regarded as an essential requirement of any constitutional order. According to this new development in the rule of law, the powers granted for exceptional cases must also be precisely defined. In the course of the 19th century, this resulted in a special type of law concerning a state of war, siege, or emergency. The French law of 9 August 1849, and the Prussian law on the state of siege of 4 June 1851, are typical in this regard. The extraordinary means by which attempts were made to control the state of emergency consist of the transfer of executive power to a military commander or a civil commissary, and the possibility of suspending certain constitutional provisions that serve to protect personal freedom, the right of domicile, freedom of the press, freedom of association, and administrative freedom; furthermore, in a right of the military commander or the commissary to issue decrees; finally in the intensification of punishments for certain crimes such as murder, sedition, etc., and in the authorization of special courts (military and war). Thus, in the course of the 19th century, the state of emergency developed into a legally established institution which was often referred to as a dictatorship. In addition, the term was used for cases in which the state exercised power that was not subject to any legal regulation at all, even to that of the institution of war or siege.
IV. Commissarial and Sovereign Dictatorship
A careful look at the historical development of the rules governing states of emergency demonstrates that there are essentially two types of dictatorship: one which, despite all exceptional powers, essentially remains within the framework of an existing constitutional order and in which the dictator is appointed in a constitutional manner (commissarial dictatorship), and another, in which the entire legal system has been repealed and in which the dictatorship serves the purpose of bringing about a completely new order (sovereign dictatorship). This sovereign dictatorship is exercised after a revolution—after the previous constitutional order has been abolished and before a new constitution has come into force—by a national assembly which can exercise state power without legal restrictions. This is the most common case of a sovereign dictatorship in the modern democratic state. (Examples: the French National Assembly of 1848, the Weimar National Assembly from 1919 until the enactment of the Weimar Constitution). However, a sovereign dictatorship can also arise when a revolutionary party seizes and exercises state power with reference to the true will of the people, and does so provisionally, i.e., until the establishment of a state in which the people can freely exercise their will, although the revolutionary party itself decides when this state of affairs has come into effect. As long as a constitution is in effect, only a provisional dictatorship is conceivable, even if the dictator’s powers are extremely extensive.
V. The Dictatorship of the Reich President
The Weimar Constitution contains a provision in Article 48, paragraphs 2/5 for a state of emergency which authorizes the Reich President—if the public safety and order of the Reich is seriously disturbed or endangered—to take the necessary measures to restore public safety and order, with the help of the armed forces if necessary. To this end, he may temporarily suspend in whole or in part the fundamental rights established in Articles 114, 115, 117, 118, 123, 124, and 153. The Reichstag is to be informed immediately of all measures taken, and these measures are to be suspended at the request of the Reichstag. In the event of imminent danger, a state government may take provisional measures of the same kind for its relevant territory. These measures of the state government are to be suspended at the request of the Reich President or the Reichstag. According to Article 48, paragraph 5, additional laws are required to determine the details and limits of these measures. As of June 1926, no such law has yet been enacted; consequently, until such a law is enacted, the Reich President has extremely extensive powers, because he is entitled to take all measures necessary according to the circumstances, without the powers being circumscribed as they are in the typical state of emergency laws in a constitutional state. On the basis of Article 48, a military state of emergency was therefore able to be declared in Thuringia and Saxony in September and October 1923, during the course of which the military commander, exercising executive power, even banned the state parliament in Saxony from convening and a government commissary dismissed Saxon ministers from their offices. On the basis of Article 48, paragraph 2, the Reich government, in particular, exercises a right to issue decrees via the Reich president, which, judging by its practical effect, is sometimes seen as an extra-ordinary legislative right running parallel to the ordinary legislative right of the Reichstag.
VI. The Dictatorship of the Proletariat
In the theory of Marxist socialism, the dictatorship of the proletariat refers to the conquest and exercise of state power by a particular class, the proletariat, which stands opposed to the bourgeoisie. The expression “dictatorship of the proletariat”––which was used several times by Marx and Engels and is mainly due to an analogy with the revolutionary dictatorship of the Jacobins of 1793––was taken up by the Russian Bolsheviks to justify the forcible seizure of state power, the destruction of the old “state machinery” and the breach of democratic and legal principles. According to the Marxist-Socialist conception, every state is in reality a dictatorship of the proletariat, i.e., a power apparatus, a “machine” for the suppression of one class by another, and the legal forms and barriers to the exercise of state power are merely a semblance [Schein], so that the state becomes identical with the dictatorship of the proletariat. In the first instance, the dictatorship of the proletariat simply means the proletarian state, just as the modern constitutional state, with its liberal and democratic institutions, is characterized as a dictatorship of the bourgeoisie. In the revolutionary transitional phase from the bourgeois-capitalist state to the ideal communist state, a proletarian state was necessary to break the resistance of the bourgeoisie, hence the dictatorship of the proletariat. But here, too, the word dictatorship takes on a different meaning from case to case, depending on what is imagined as the normal state of affairs. That is to say, dictatorship can be used to refer to the opposite of a democratic order, i.e., a national assembly based on universal suffrage; ultimately, it can mean the use of force [Gewaltanwendung] instead of peaceful agreement and parliamentary discussion.
According to this overview, the meaning of the word dictatorship only arises from a certain contrast, namely when contrasted with:
a) the constitutional restrictions and guarantees of civil liberty, which the modern constitutional state has established through the so-called separation of powers [Gewalten], i.e., the separation of legislation, administration, and the administration of justice, and through the establishment of fundamental rights (personal liberty, domiciliary rights, freedom of the press, freedom of association and assembly)
b) parliamentary debate, i.e. the peaceful resolution of differences and disagreements through mutual negotiation and parliamentarianism,
c) civil democracy, i.e. the participation of all citizens in the exercise of political rights without distinction.