Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination

What’s Wrong with Militant Democracy?

“…7. For a further discussion of the political significance of the Refah case, making a similar point, see also Harvey (2004), Boyle (2004), and Macklem (2006Macklem ( , 2012. 8.…”

“…In particular, the notion of militant democracy has recently been used to justify several restrictions on both freedom of association and religious practice, taken to represent threats for the stability and viability of democratic regimes (Avineri, 2004;Macklem, 2006Macklem, , 2012Rosenblum, 2008;Sajò, 2006). Thus, while initially understood primarily as a means for banning political parties whose commitment to democratic values was judged either insufficient or unreliable, militant democracy has recently expanded to cover a broader range of political actors judged dangerous for existing democratic regimes.…”

On the genealogy and legitimacy of the secular state: Böckenförde and the Asadians

“…So there is hardly any difference between Muslim majority states that establish Islam and politically secular liberal-democratic states: both institutionalize majority religious values, police the lines drawn around acceptable religiosity, and privatize and discriminate against minority religions (Mahmood & Danchin, 2014 There are three prongs to the post-secular genealogists' challenge to the legitimacy of the liberal politically secular sovereign state. The first argues that, far from guaranteeing individual or collective autonomy in a private sphere protected against state power by constitutional or human rights, the new form of governmentality ushered in by the modern state involves an unprecedented, pervasive mode of regulation and management of religious life (Bhuta, 2014;Hurd, 2015;Macklem, 2006;Mahmood, 2016, p. 2). The nation-state's pervasive regulatory power, moreover, seems arbitrary, insofar as the standard realist (the sovereign state secures peace, stability) and liberal (liberal sovereign states protect freedom and equality, justice) justifications do not hold up.…”

‘Constitutional Dialogue’: An Overview

“…88 Another option along those lines is 'a jurisprudential dialogue between European and Islamic legal orders, where the individual tenets of one system are tested against those of the other. ' 89 Also, in the field of legal education 'dialogue' is being used as a didactic tool for helping students to develop a less static (and more contextualist) understanding of constitutional law. 90 Our findings are reflected in the table below.…”