Militant Democracy: The Institutional Bases of Democratic Self-Preservation

Abstract

Over the past two decades, the concept of militant democracy—the use of legal restrictions on political expression and participation to curb extremist actors in democratic regimes—has again captured the attention of comparative constitutional lawyers and political scientists. In comparative constitutional law, the old neutral model of liberal democracy, according to which all political views are entitled to the same rights of expression and association, has given way to a general consensus that restrictions on basic rights designed to preserve democracy are legitimate. At the same time, legal scholars attribute the considerable cross-national variation in the formal design and use of such restrictions to the particular historical background of each country. In political science, a large body of work now examines specific militant restrictions on extremist actors. Although this scholarship consists mainly of descriptive analyses, it has begun to advance causal hypotheses explaining variation in important militant democracy policies. Taken together, these developments point to the fact that militant restrictions constitute an important facet of modern democracy and that at the same time, notwithstanding recent advances, our understanding of the phenomenon is still marked by significant gaps, making the legal and empirical analysis of militant democracy an important emerging research program both in comparative constitutional law and political science. This article reconstructs the debate on the concept since its origins in the 1930s and suggests directions for further research in both fields.