Protecting Popular Self-Government from the People? New Normative Perspectives on Militant Democracy

Abstract

This article assesses recent normative theorizing on militant democracy—the idea that, to protect themselves, democracies might under some circumstances have to restrict the rights of those set on undermining or outright destroying democracy. Particular attention is paid to new justifications of militant democracy that seek to avoid the danger of militant democracy itself damaging democracy, as well as to the question of who the agent deciding on implementing militant democracy ought to be. Three new challenges for thinking about militant democracy are identified: certain forms of religious belief and practice, new varieties of authoritarianism that include elections and some limited freedoms, and the question of whether international and supranational institutions can play a role in protecting democracies.

Militant constitutionalism: a promising concept to make constitutional backsliding less likely?

“…If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them." Both Müller (2016) and Wagrandl (2018) argue that with an adequate concept of tolerance, the ostensible paradox disappears. 5 It seems important to add that Loewenstein believed "democratic tradition" to be an important factor in fighting fascism.…”

Militant Constitutionalism – A Promising Concept to Make Constitutional Backsliding Less Likely?

“…If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them." Both Müller (2016) and Wagrandl (2018) argue that with an adequate concept of tolerance, the seeming paradox disappears.…”

Three Models of Democratic Self-Defence: Militant Democracy and Its Alternatives

“…Care is also taken in distinguishing between anti-democratic actions and anti-democratic ideas (Bourne, 2012: 209; Capoccia, 2005: 57) so that prohibitions concern only the former and not the latter, thus, avoiding interference with the freedom of thought. Because it addresses these concerns, we call this new and softer version of militant democracy ‘neo-militant democracy’ (Backes, 1998; Kirshner, 2014; Müller, 2012b, 2016; Sajó, 2004; Thiel, 2009).…”

“…Among these scholars, there has indeed been a turn away from the most draconian measures suggested by Loewenstein. As Müller (2016: 258) states, few (if any) militant democrats today would support far-reaching constitutional provisions approving, for instance, the permanent disenfranchisement of particular individuals. Kirshner (2014: 40–41) argues similarly that even vehement anti-democrats are likely to have other legitimate interests, which such actors should be able to pursue, for instance, by being able to vote in elections.…”