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__________________________________________________________________ Lucas Rentschler and Christopher Dawe Lex Oppia : An Ancient Example of the Persistence of Emergency Powers 1 . Introduction . The legal framework of society represents a social contract . It formalizes rules of conduct for both the governed and the state . Since , as John Locke wrote , “ it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public ,” this social contract is incomplete . 1 In a democratic society , the legislative process provides a clear vehicle with which to renegotiate . However , “ in some governments the lawmaking power is not always in being and is usually too numerous , and so too slow for the dispatch requisite to execution .” 2 That is , in times of emergency , this deliberative process may not be adequate to the task . How , then , ought the state to respond to crises for which existing law is insufficient ? 3 1 Locke ([ 1689 ] 2010 ), p . 308 . Alexander Hamilton , in The Federalist Papers , also made this point : “[ It ] is impossible to foresee or define the extent and variety of national exigencies , or the correspondent extent and variety of the means which may be necessary to satisfy them ” ( Hamilton et al . [ 1787-88 ] 2006 , p . 142 , italics in original ). 2 Locke , op . cit ., pp . 307-308 . Lucas Rentschler is a Professor of Economics at Universidad Francisco Marroquín . Christopher Dawe graduated from Brigham Young University with a degree in Classics . This question , particularly in the wake of the September 11 attacks , has been the subject of considerable debate . One approach , advocated by Aoláin and Gross ( 2006 ) and Gross ( 2003 ), involves no explicit increase in government power , but allows government officials , when they deem it to be in the public interest , to openly flout existing law and face the consequences ex post . In this extra-legal model , the legislature may choose to indemnify the agent after the fact , but this is hardly assured . This view recognizes that there are instances in which government action outside the law may be appropriate , but explicitly granting additional power to the state in times of emergency may prove problematic . Another approach is to simply reject the very premise of the question . This view holds that there is no need for the government to hold additional power in 3 In The Social Contract , Jean-Jacques Rousseau argues that “[ i ] f … the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation , the method is to nominate a supreme ruler , who shall silence all the laws and suspend for a moment the sovereign authority ” ( Rousseau [ 1762 ] 2010 , pp . 108-109 ). One example of this response to emergencies comes from Rome , where the Consuls ( generally following a senatus consultum ) had the ability to nominate a temporary dictator . Laissez-Faire , No . 34 ( Marzo 2011 ): 21-29

__________________________________________________________________ times of crisis ; existing constraints on government power should not be relaxed in response to cries of necessity . Implicitly , it is assumed that the cost to society of granting extraordinary power to government in times of crisis is sufficiently high as to never be worthwhile . In Lobel ( 1989 ) this corner solution is dubbed the “ absolutist ” view . In Aoláin and Gross ( 2006 ) and Gross ( 2003 ) it is referred to as the “ business as usual ” model . A related view , advocated by Dyzenhaus ( 2006 ), is that the government should always act within the confines of the law , but allows for the possibility of additional powers when circumstances demand . This can be accomplished , for example , via laws that allow for rights to be abrogated when the government declares an emergency . Such legislation would legally declare government power to be context-dependent . Akerman ( 2004 ), however , notes that “[ u ] nless careful precautions are taken , emergency measures have a habit of continuing well beyond their time of necessity .” 4 Gross ( 2003 ) argues that this is , in part , due to the difficulty in differentiating between emergency and normalcy . Indeed , Gross ( 2003 ) and Lobel ( 1989 ) argue that this difficulty has led to a blurring of the line between the two . Additionally , once power has been granted to the government , officials may see an incentive to perpetuate the declaration of emergency well beyond the actual crisis . Current events in Egypt and Algeria , among many other examples , lend substantial weight to this argument . 5 Emergency legislation may also persist , even when the crisis has unambiguously passed , if alternative rationales can be found . 6 This paper illustrates an interesting example of this phenomenon from antiquity in which the Roman Senate debated repeal of a sumptuary law . This law , called the Lex Oppia and passed in 215 BC , 7 came as a direct response to the devastating defeat of the Roman legions commanded by the Consuls Gaius Terentius Varro and Lucius Aemilis Paullu at Cannae . The purpose of the Lex Oppia was to curb excessive female expenditures at a time when the coffers of the city treasury were depleted and , as such , can be seen as a piece of restrictive sumptuary legislation . The legislation was passed at a time when Rome was in dire financial straits and was designed to shift any available funds towards the defense of the city . In the years following the passage of the Lex Oppia , Carthage was unequivocally defeated and the rationale for the law would seem to have disappeared . The law ’ s defenders , however , implemented a new narrative . No longer was the law designed to help fund a defeated and insolvent ar- 5 For a substantial list of examples , we refer the reader to Gross ( 2003 ). 4 An example of particular interest is the “ Impuesto Extraordinario y Temporal de Apoyo a los Acuerdos de Paz ” ( IETAAP ) in Guatemala . This tax accompanied the peace accords of 1996 and , as the name states , was expressly intended to be temporary . However , it continues to this day under the name “ Impuesto de Solidaridad .” For additional details see http :// independent . typepad . com / el 6 For example , in response to the energy crisis in the 1970 ’ s , the United States implemented a national speed limit of 55 miles per hour , in order to reduce the consumption of fossil fuels . Once the crisis had passed , the justification had become that the reduced speed limits saved lives . This claim is investigated in Lave ( 1985 ). 7 independent / 2008 / 08 / guatemala-impue . html . Unless otherwise noted , all dates are BC . __________________________________________________________________ Laissez-Faire 22

__________________________________________________________________ my ; rather it was designed to protect the virtue of Roman women . The remainder of the paper is organized as follows . Section 2 provides the background against which the Lex Oppia was passed , and describes the initial purpose of the law . Section 3 illustrates the changing circumstances in Rome which provided the later rationale for the law . Section 4 discusses the debate in the Roman Senate regarding repeal . Section 5 concludes . 2 . Background of the Lex Oppia : The Second Punic War and the Battle of Cannae . In 218 , in response to Carthaginian inroads into the previously independent Iberian peninsula , the 16-year Second Punic War commenced . This war would end with a decisive victory for Rome and the systematic dismantling of the Carthaginian empire . During the early years of the war , however , this outcome was far from certain . For nearly eight years Hannibal , following his dramatic and famous crossing of the Alps , rampaged through the Italian peninsula winning key victories and eliminating Roman consuls . Meanwhile , in 214 , on Rome ’ s eastern frontier , what would later be termed the First Macedonian War broke out , with Rome also facing off against King Philip V ’ s Macedon . The disasters of the Second Punic War reached a climax with the Roman defeat at Cannae , in which a numerically superior Roman force was soundly defeated by Hannibal ’ s army . Sources differ on the number of casualties , with a reported range of 48 , 000 to 70 , 000 Romans and 5 , 700 to 8 , 000 Carthaginians killed . 8 This was not a defeat that happened in a remote corner of the world or even a defeat on the border . Rather , the defeat happened in the heartland of Italy , less than 250 miles from Rome . Panic subsequently swept the city . Simply put , the effect on the Roman psyche was dramatic . The ancient historian Livy succinctly captures the panic enveloping the city as rumors spread that Hannibal was at the gate : At no time , the city being unharmed , had there been so great a fear and tumult with the walls of Rome . I will neither describe the situation nor reduce the cold reality by attempting to recount the small facts . The loss of the consul and army at Trasumennus the previous year , it was no longer wound added to worse wound but rather a continuing calamity . When it was announced that that the two consuls and their two armies were lost , there was now neither any Roman camp nor any commanders nor any soldiers ; Apulia , Samnium , and almost all of Italy were controlled by Hannibal . 9 It was in this state of fear that the Lex Oppia was passed . The law targeted women , stating that they could no longer wear more than an ounce of gold or overly colorful garments , and banning women ’ s use of carriages within a mile radius of the city , excepting during religious festivals . 10 In practice , this law probably Hann . 4 . 25 , Plut . Fab . Max . 16 . 8 . 9 Nunquam salua urbe tantum pauoris tumultusque intra moenia Romana fuit . Itaque succumbam oneri neque adgrediar narrare quae edissertando minora uero faciam . consule exercituque ad Trasumennum priore anno amisso non uolnus super uolnus sed multiplex clades , cum duobus consulibus duo consulares exercitus amissi nuntiabantur nec ulla iam castra Romana nec ducem nec militem esse ; Hannibalis Apuliam , Samnium ac iam prope totam Italiam factam ( Liv . 22 . 54 ). 8 10 Poly . Hist . 3 . 117 . See also Liv . 22 . 49 , App . Liv . 34 . 1 . __________________________________________________________________ Laissez-Faire 23

__________________________________________________________________ had little effect — it is doubtful that , with rumors of Hannibal at the gate , many women were cruising in carriages through the streets of Rome ornamented in gold and draped in fancy fabrics . 11 It was , however , now Roman law . Moreover , it was a law that remained for decades and appears to have been a law to which adherence was expected . 12 Why was it not eventually rescinded or , at least , ignored ? 11 Indeed , in the later debate to repeal the Lex Oppia , Valerius asked rhetorically , “ At this time , were the women so finely dressed that the Lex Oppia law was needed to restrain them ?” ( Tali tempore in luxuria et ornatu matronae occupatae erant , ut ad eam coercendam Oppia lex desiderata sit ?) ( Liv . 34 . 6 ). 12 It is , of course , supposition to believe that the law was enforced , but Livy records a rather massive protest against the law : “ The matrons could be kept home neither by the influence , authority , or edict of their husbands . They blocked all the roads in the city and all the entrances to the forum , begging the men as they entered the forum that , given the state's prosperity — all men having their fortunes rise daily — the women should likewise be allowed to have restored to them their former adornments . This crowd of women was enlarged every day , for they had gathered from the towns and outlying districts . Besides this , they then boldly approached and asked the consuls , praetors , and magistrates [ for a repeal ].” ( Matronae nulla nec auctoritate nec verecundia nec imperio virorum contineri limine poterant , omnis vias urbis aditusque in forum obsidebant viros descendentis ad forum orantes , ut florente re publica , crescente in dies privata omnium fortuna matronis quoque pristinum ornatum reddi paterentur . Augebatur haec frequentia mulierum in dies ; nam etiam ex oppidis conciliabulisque conveniebant . Iam et consules praetoresque et alios magistratus adire et rogare audebant . Liv . 1 .) This level of public demonstration seems unlikely if the law was The war with Hannibal , after all , had ended in a great Roman triumph and the wealth now flooding into the city negated the need for wartime austerity measures . The answer is that the conservative party in Rome subtly redefined the narrative surrounding the need for the law . Though the Lex Oppia was formerly adopted to meet the political necessities of the time , it was maintained in order to address another issue that the creators of the law had likely neither foreseen nor created the law as a bulwark against : the Greek assault on traditional Roman values . 13 3 . The Hellenizing Influence . Following the defeat of Carthage , the Hellenistic world succumbed to Rome and became incorporated as Roman territories . This led to a rather unexpected outcome — as Rome went from a city perpetually threatened to the city in control of the Mediterranean and Aegean Seas she was flooded with peoples , goods , and customs from the new provinces . The oftdiscussed Hellenizing of Rome was noted by the Romans themselves — wrote Horace : “ Captive Greece captured her wild conqueror and brought arts to rustic Rome .” 14 Rome , however , was not only introduced to new arts but also to new modes of consumerism and leisure , many of which were seen as lascivious . Eventually , in the words on one modern observer , “ Greek vices , hitherto unknown in Rome , now became naturalized there .” 15 Many Romans seem to have agreed : 13 Tac . Ann . 3 . 34 . 14 Graecia capta ferum uictore cepit et artes / intulit agresti Latio ( Hor . Ep . 2 . 1 . 156- 157 ). 15 generally ignored . Duruy ( 1890 ), p . 276 . __________________________________________________________________ Laissez-Faire 24