614849

research-article2016
PSX0010.1177/0032321715614849Political StudiesInvernizzi Accetti and Zuckerman

Article
Political Studies

What’s Wrong with Militant 2017, Vol. 65(1S) 182­–199

© The Author(s) 2016
Reprints and permissions:
Democracy? sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0032321715614849
https://doi.org/10.1177/0032321715614849
journals.sagepub.com/home/psx

Carlo Invernizzi Accetti1 and Ian

Zuckerman2

Abstract
This article proposes a critique of “militant democracy,” defined as the legal restriction of
democratic freedoms for the purpose of insulating democratic regimes from the threat of being
overthrown by legal means. The argument we advance is that this conceptual framework is
inadequate for addressing the problem it is meant to solve, since restricting the freedom of its
supposed “enemies” may make democracy more prone to authoritarian abuse, rather than less,
in the long run. To demonstrate this, we first turn to the theory of militant democracy, both in
its earliest articulations by Karl Loewenstein and Carl Schmitt, and in the more recent theoretical
literature on this topic. In the second part, we show that the inherent arbitrariness of militant
democracy has been reflected in a concrete expansion in the range of targets to which the logic
of militant democracy has been applied: from fascism during the inter-war years, to communism
during the Cold War, up to several forms of religious practice in the present day.

Keywords
militant democracy, constitutionalism, proceduralism, authoritarianism, Carl Schmitt

Accepted: 6 September 2015

Those who are for democracy cannot allow themselves to be caught in the dangerous
contradiction of using the means of dictatorship to defend democracy. One must remain
faithful to one’s flag even when the ship is sinking; and in the abyss one can only carry the
hope that the ideal of freedom is indestructible, and the more deeply it sinks the more it will
one day return to life with greater passion.
Hans Kelsen (1932)

The authors’ names are listed alphabetically; there is no lead author.

1Department of Political Science, The City College of New York, The City University of New York (CUNY),
New York, NY, USA
2Stanford University, Stanford, CA, USA

Corresponding author:
Carlo Invernizzi Accetti, Department of Political Science, The City College of New York, The City
University of New York (CUNY), 160 Convent Avenue, NAC 4/138, New York, NY 10030, USA.
Email: caccetti@ccny.cuny.edu; izuckerm@stanford.edu
Invernizzi Accetti and Zuckerman 183

Introduction
The notion of “militant democracy”—understood as the legal restriction of certain demo-
cratic freedoms for the purpose of protecting democratic regimes from the threat of being
subverted by legal means—has recently been attracting an increasing measure of atten-
tion by political theorists (Capoccia, 2013; Kirshner, 2014; Macklem, 2006; Müller,
2012; Niesen, 2002; Rummens, 2010; Sajò, 2004; Thiel, 2009). Until relatively recently,
it was still common to begin discussions of this topic lamenting that it hadn’t yet been
subjected to sufficient theoretic elaboration (Issacharoff, 2007; Nolte and Fox, 1995;
Pedahzur, 2004). However, the sheer number of recent texts making this claim suggests
that the topic of militant democracy may finally be in the process of acquiring a place of
its own within the framework of contemporary democratic theory.
There are certainly good reasons for this. First, the notion of militant democracy
touches upon a central issue at the heart of democratic theory: the possibility that a demo-
cratic regime might effectively overthrow itself, if the demos as a whole, or a sufficiently
large part of it, were to turn against the democratic principle itself. This is sometimes
referred to as the “paradox of democracy,” and in one form or another it has been at the
center of democratic theory at least since the second half of the twentieth century (Lefort,
1989; Müller, 2012; Popper, 1945; Talmon, 1952).
In addition, however, the notion of militant democracy has recently acquired a renewed
prominence in light of the way in which many existing democratic regimes have chosen
to respond to the specific threat that is supposed to have emerged in the aftermath of the
September 11 terrorist attacks in the United States and several other later incidents in
Europe. 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 repre-
sent threats for the stability and viability of democratic regimes (Avineri, 2004; Macklem,
2006, 2012; Rosenblum, 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.
The contribution this article makes to the literature on this topic consists in introducing
a counter-weight to most of the existing studies. Until now, most discussions of militant
democracy have consisted in attempts to justify it on the basis of the implicit assumption
that militant democracy is a justiciable principle capable of being applied in a non-
arbitrary way (on this point, see, in particular, Sajò, 2012; Thiel, 2009; Kirshner, 2014).
We contest this claim, arguing that there is an irreducible element of arbitrariness in
whichever way the decision is taken as to what constitutes an “enemy” of democracy. The
reason this arbitrariness is inherent is that the decision over who to exclude from the pos-
sibility of participating in the democratic game is ultimately a decision over the bounda-
ries of the political community itself, which cannot coherently be taken by democratic
procedures and therefore cannot be subsumed under any prior norm. This implies that
militant democracy fails on its own terms, as a legal and democratic means of excluding
enemies of democracy.
This is a serious matter of political concern. It implies that provisions of militant
democracy may have the opposite effect than the one intended: instead of protecting
democracy against its supposed enemies, they may provide a means for those empowered
to make the relevant decisions to arbitrarily exclude an indeterminately expansive range
184 Political Studies 65 (1S)

of political competitors from the democratic game, thereby restricting the democratic
nature of the regime and therefore effectively “doing the work of the enemies of democ-
racy for them” (Kirshner, 2014).
To demonstrate this, this article is divided into two parts. In the first, we examine the
theory of militant democracy, both in its earliest articulations by authors such as Karl
Loewenstein and Carl Schmitt, and in the more recent theoretical literature on this topic,
showing that all attempts at providing a juridically operational criterion of militant
democracy have failed, because the decision as to what constitutes an enemy of democ-
racy touches upon the boundaries of the political entity itself and therefore cannot be
subsumed under any prior democratic norm. In the second part, we show that this inherent
arbitrariness of militant democracy is not merely an abstract theoretical problem but has
been reflected in a concrete expansion in the range of targets to which the logic of militant
democracy has been applied in Europe: from original calls to ban fascist parties during
the inter-war years, to its use during the Cold War to ban communist parties, up to its cur-
rent employment to justify restrictions on religious practice taken to represent threats for
the stability and viability of democratic regimes.1 This expansion in the range of targets
of militant democracy corresponds to a restriction of the democratic nature of the regimes
in question, and therefore confirms the point that provisions of militant democracy may
have the opposite effect than the one intended.
The conclusion we draw from this analysis is that provisions of militant democracy are
not an appropriate way of dealing with the so-called “paradox of democracy.” For this
reason, in closing, we indicate two potential alternatives for dealing with the same prob-
lem, as possible avenues for further reflection: the first draws on the distinction between
militant democracy and constitutional or criminal law in general to suggest that demo-
cratic regimes can consistently ban specific actions—but not actors; the second suggests
that striving to include presumptive enemies of democracy within the framework of dem-
ocratic procedures (instead of excluding them) may potentially have a moderating effect
on their goals, by giving them a stake in the democratic order, instead of a further reason
for opposing it.
To be sure, neither of these alternatives to militant democracy can guarantee that
democracy will be made absolutely safe from the risk of being overthrown from within.
However, the idea of an absolutely secure or risk-free democracy may itself be a miscon-
ception, inasmuch as it seems to involve the opposite paradox from the one we have been
considering—namely that of imposing democracy, potentially even against a people’s
will.

The Inherent Arbitrariness of Militant Democracy

The Notion of a Constitutional Core and the Boundaries of the Political
Entity
The author generally credited with having coined the term “militant democracy” is the
German émigré scholar Karl Loewenstein, who introduced it in a series of two articles
published in the American Political Science Review in 1937, as an explicit reaction to the
rise to power and consolidation of Hitler’s regime in Germany (see Loewenstein, 1937).
As several commentators have already pointed out, however, the conceptual framework
that underscores this early theorization of militant democracy is not very persuasive,
inasmuch as it depends on a distinction between “constitutional government” and
Invernizzi Accetti and Zuckerman 185

“emotionalism” that cannot provide a principled, non-arbitrary criterion to distinguish

between the kinds of actors that can and cannot be tolerated in a democratic framework
(see Bulla, 1973; Ridder, 1957; Sajò, 2006).
Loewenstein defines constitutional government in terms of a conception of the rule of
law that is supposed to guarantee “rationality and calculability of administration”
(p. 418). Conversely, emotionalism is defined as “the substitution for the rule of law of a
legalized opportunism in the guise of raison d’état,” through a variety of means, among
which Loewenstein mentions, in particular, “high-pitched nationalist enthusiasm” and
“permanent psychic coercion, at times amounting to intimidation and terrorization scien-
tifically applied” (p. 419). Even on its own terms, however, this theory doesn’t seem to
take into account that all political agents in electoral regimes make use of emotional cues
and strategies. The category of “emotionalism” doesn’t therefore seem capable of provid-
ing a principled basis for distinguishing between “friends” and “enemies” of democracy.2
In light of these weaknesses in Loewenstein’s account, a more solid intellectual founda-
tion for the strategy of restricting democratic freedoms for the purpose of defending
democracy against its supposed enemies may be found in the work of another highly
prominent German legal and political theorist, who actually made an analogous argument
before Loewenstein, even though he never used the term militant democracy itself: Carl
Schmitt. Given his infamous decision to join the Nazi party in 1933, Schmitt may seem an
unlikely exponent of the theory of militant democracy. Yet, his most important writings
from the Weimar period constitute an attempt to marshal the resources of the constitutional
state to defend it from its enemies, internal and external. As such, Schmitt argued explicitly
for banning both Hitler’s NSDAP (Nazi Party) and the Communist Party in 1932 (Schmitt,
2004: 48–49). He did so on the basis of an innovative and extremely influential constitu-
tional theory that provides greater theoretical substance to the idea of militant democracy
than Lowenstein’s account. Despite this, we argue that Schmitt’s version of the theory of
militant democracy fails to overcome the challenge of providing a principled, non-arbi-
trary way of distinguishing between what can and cannot be tolerated within a democratic
framework, and indeed ultimately reveals the impossibility of doing so.
The key notion on which Schmitt’s theory of militant democracy is predicated is that
of a “constitutional core,” which Schmitt (2008) had already defined in his 1928 treatise
on Constitutional Theory as the “political content” of the original decision that “deter-
mines the entirety of the political unity in regard to its peculiar form of existence through
a single instance of decision” (pp. 77–78). Beyond this substantive constitutional core,
Schmitt (2008) had also maintained in the same text that the “positive form” of the con-
stitution is embodied in a number of specific “constitutional laws,” the task of which is to
determine the “formal procedures” through which the basic political decision instituting
the collectivity is to be given expression (pp. 78–79).
On the basis of this distinction between a constitutional core and mere constitutional
laws, in his 1932 text entitled Legality and Legitimacy, Schmitt (2004) claims that the
Weimar Republic was experiencing a conflict between the “political substance” and the
“positive form” of its constitution, since the electoral strength of the Nazi and the
Communist parties threatened to undermine the “bourgeois republic,” by formally legal
“parliamentary” means (pp. 40–43). For this reason, Schmitt (2004) explicitly recom-
mends that the President of the Republic make use of Article 48 of the constitution to
invoke emergency powers and ban both the Nazi and the communist parties, even though
this was strictly speaking in conflict with the principle of “equal chance” embodied in the
positive expression of the Weimar constitution (pp. 48–49).
186 Political Studies 65 (1S)

This can be considered Schmitt’s version of a theory of militant democracy. Its key
contention is that emergency powers may be called upon to justify a restriction of demo-
cratic freedoms in violation of ordinary “constitutional law,” so long as this is intended to
defend the political “core” of the constitution itself. The reason we consider this a much
more sophisticated theory of militant democracy than Loewenstein’s is that it clearly
brings out something that had only remained implicit in the latter. Namely, that the deci-
sion as to what constitutes a threat for the survival of the democratic order is necessarily
an exceptional (i.e. ultimately political) decision, which cannot be subsumed into any
prior norm, and must therefore be established arbitrarily by whoever has the power to
enforce it. This is made clear by Schmitt when he points out that the actual text of a writ-
ten constitution cannot, without circularity, draw the distinction between its political core
and mere constitutional law, because that would beg the question of establishing whether
that clause itself belongs to the constitutional core or mere constitutional law. As Schmitt
(2008) notes, from this it follows that the decision must necessarily be taken in a “sover-
eign” (i.e. exceptional) manner by whoever has the power to declare an exception (pp.
78–79).
It is important to emphasize, therefore, that whereas for most contemporary constitu-
tional theorists the constitution’s core merely refers to the formal procedures of constitu-
tional change that are set out in the constitution itself, Schmitt’s substantive notion of a
core—and the foundation of his theory of militant democracy—is a direct rejection of the
reduction of a constitutional core to amendment procedures. If parties antithetical to the
substance of the constitutional order are to be banned, the constitution in Schmitt’s view
must necessarily be more than a formula for constitutional change; a sovereign decision
must be identified. The rejection of a procedural view of the constitutional core-as-
amendment-procedure in favor of a substantive view of the core-as-sovereign decision is,
in Schmitt’s view, a logical requirement for militant democracy.
Beyond the formal juristic point concerning the impossibility of a constitution speci-
fying its own core, the deeper political point that emerges from this analysis is that the
decision as to what constitutes an enemy of a given constitutional order is necessarily
arbitrary because it concerns the boundaries of the political entity itself. For, if we
assume—as Schmitt (1985) does—that democracy is a political regime founded on a
principle of “identity” between those who make the laws and those who are subject to
them (p. 15), it follows that any exclusion from the possibility of participating in the
democratic game amounts to an exclusion from the political entity itself. This, however,
is not a decision that can be coherently made democratically, through established proce-
dures. For democratic procedures suppose, by definition, that the boundaries of the
demos (i.e. the “friends” and “enemies” of the democracy in question) are already settled
in advance. Thus, the upshot of Schmitt’s analysis is that a democratic order cannot
address the problem of the potential existence of internal enemies without re-politicizing
the question of membership within the political entity, and therefore inevitably intro-
ducing a foreign element of authoritarianism within the very functioning of the demo-
cratic order itself.
Given Schmitt’s well-established political antipathy to democracy (Balakrishnan,
2002; Müller, 2003; Scheuerman, 1994), this may well have been the reason for his rec-
ommending such a strategy to begin with. However, from a more whole-heartedly demo-
cratic perspective, this suggests that militant democracy may not be the best way of
safeguarding the democratic nature of a regime in the long run. Indeed, this is not just a
contingent feature of Schmitt’s own theorization of a form of militant democracy, but
Invernizzi Accetti and Zuckerman 187

rather a more general problem implicit in the very logic of restricting democratic free-
doms for the purpose of preserving the democratic nature of the regime. To illustrate
this, in what follows, we consider several more contemporary attempts at overcoming
the inherent arbitrariness of militant democracy, showing that they all ultimately fail for
the same underlying conceptual reason that was already identified by Schmitt in his
account.3

The Failure of Recent Attempts to “Tame” the Inherent Arbitrariness of

Militant Democracy
Most recent theorizations of militant democracy have consisted in attempts to extricate
this notion from the questionable intellectual premises—and political goals—of its early
articulations, re-establishing it on more solidly liberal-democratic grounds. In this sec-
tion, we suggest some reasons why such attempts have failed, by focusing on two parallel
strategies for taming the inherent arbitrariness of militant democracy. On one hand, lib-
eral theorists such as Alexander Kirshner have attempted to justify provisions of militant
democracy on the basis of the principle that conflicting rights claims ought to be balanced
against one another. On the other hand, democratic theorists such as Stefan Rummens
have attempted to overcome the inherent arbitrariness of militant democracy by suggest-
ing that the decision over who is to be considered an enemy of democracy ought to be
submitted to a democratic process of collective deliberation. Our argument is that both
these attempts fail because they do not take into account that militant democracy involves
a re-politicization of the question of membership in the demos, which cannot be resolved
in a principled way either by liberal or democratic means.
Kirshner’s book, A Theory of Militant Democracy. The Ethics of Combating Political
Extremism, proposes to inscribe the exercise of militant democracy within a normative
framework centered on two substantive principles: that “exclusionary rules or policies—
such as a party ban—should be used only to thwart anti-democrats from invidiously vio-
lating others’ rights” and that “militant policies should not be employed in the pursuit of
an ideal regime … [but should rather] help attain an intermediate end, an imperfect politi-
cal system in which capable citizens can play a meaningful role” (Kirshner, 2014: loc.
165/3690).
The reason Kirshner (2014) considers this a “self-limiting” theory of militant democ-
racy is that the logic by which it is justified is supposed to contain the principle of its own
limitation: since the goal is to allow everyone to meaningfully exercise their right to
participation, restrictions of this right cannot be justified unless they result in a “better
approximation” of the ideal of full and equal participation (p. loc. 792/3690). The diffi-
culty is that such a “better approximation” cannot be established by the formal principle
of militant democracy itself but requires a set of external, substantive normative judg-
ments that are exogenous to Kirshner’s theory. The reason for this is that, under condi-
tions of serious constitutional conflict (i.e. the circumstances in which militant democracy
will be relevant in the first place), the definition of what counts as the core rights under
contestation is by definition not agreed upon.
This can be illustrated in light of Kirshner’s own discussion of the exclusion of con-
federate states from the process of ratification of the 14th amendment in the aftermath of
the American civil war, which omits to mention that, from a purely rights-based perspec-
tive, the abolition of slavery also constituted a violation of someone’s rights: the property
rights of slave-owners, which at the time enjoyed legal recognition and were also at the
188 Political Studies 65 (1S)

basis of an entire mode of economic production (Foner, 1988). In this clash of rights,
Kirshner’s criteria of militant democracy cannot resolve the question one way or another
precisely because the conflict involves the fundamentally political question of who is to
be regarded as a member of the demos and therefore a bearer of democratic rights in the
first place.
Our view of the extreme injustice of America’s White supremacist foundations should
not obscure this contradiction, since this would repeat the error often associated with
defenses of militant democracy, namely to build into its justification the premise that
political officeholders applying militant democratic provisions will share our own norma-
tive dispositions. To be sure, this is not to say that the abolition of slavery or overcoming
of racist restrictions to citizenship is somehow arbitrary from a moral point of view. On
the contrary, as a formal constitutional principle, the justification of militant democracy
cannot rest on the assumption that it will be employed only by people who happen to
share our substantive normative views. Indeed, smuggling such premises into the justifi-
cation of militant democracy actually obscures their primary danger, namely that, as
instruments of exclusion, they can be exercised by whoever happens to hold power
against political opponents.
The opposite problem is illustrated by the work of another author who has recently
sought to devise a way for overcoming the inherent arbitrariness of militant democracy.
Relying on a Habermasian conception of deliberative democracy, Rummens has sug-
gested that the decision as to what constitutes an acceptable form of political participa-
tion within a democratic framework ought to be submitted to a process of democratic
deliberation. In this way, the democratic order would be configured as a “dynamic sys-
tem” that reflectively regulates the conditions for its own reproduction (see Rummens,
2010, 2012).
Concretely, this means that, at the stage of a hypothetical starting point, “everybody”
(i.e. presumably all those subject to the laws of the polity in question) ought to be allowed
to participate in the deliberative process instituting the rules of the democratic game.
However, over time, this process could institute more restrictive rules concerning which
kinds of political actions and actors ought to be allowed to participate within it: this is
what Rummens refers to as the “concentric containment of political extremism” (see
Rummens, 2010).
The problem with this argument, however, is that it does not really amount to a justifi-
cation of militant democracy as such. Submitting the decision over who ought to be
allowed to participate in the democratic game to a reflexive process of democratic delib-
eration does not per se offer any grounds to assume that this deliberation will result in the
exclusion of actors that represent a “threat” for the stability of the democratic system as a
whole. On the contrary, it merely reproduces the problem that militant democracy was
meant to solve in the first place, at a higher level of abstraction.
This can be observed if we consider how such a hypothetical deliberative process
could come to a concrete decision as to what kinds of actors ought to be excluded.
Appealing to consensus would be absurd, since that would effectively require the intended
targets of militant democracy to agree to their own exclusion. The only plausible alterna-
tive seems to be either a majority or a super-majority rule. But this merely reproduces the
problem that militant democracy was meant to solve in the first place, since the concern
that militant democracy was supposed to address was precisely that an anti-democratic
majority (or super-majority) could capture the democratic process, and use it to arbitrarily
exclude others from the possibility of participating within it.
Invernizzi Accetti and Zuckerman 189

Here too, we see the Schmittian problem of the boundaries of the political entity re-
emerging. For, effectively, the question that Rummens’ theory of the “concentric contain-
ment of political extremism” is incapable of answering is that over who is entitled to exclude
others from the possibility of participating in democratic deliberations. Since deliberative
democracy is supposed to be founded on the principle of collective self-government, this
amounts to a restatement of the question of membership in the political community itself—
which cannot be solved by deliberative means, given that the very idea of collective delib-
eration presupposes that the boundaries of the collectivity are already settled.
In order to escape this problem, in some formulations of his theory, Rummens pro-
poses to depart from a strictly “procedural” interpretation of the notion of deliberative
democracy, by introducing the assumption that there is a substantive core to this kind of
political regime—which for him consists in the principles of freedom and equality (see
Rummens, 2010). On this basis, Rummens claims that whoever is opposed to these core
values cannot be allowed to participate in the democratic process, at least to the extent
that this affords them the concrete possibility of undermining them (see Rummens, 2012).
The problem with this modification of his theory is that it seems to fall back on something
similar to the Schmittian doctrine of a “constitutional core.” Rummens doesn’t provide
any criterion for establishing who is to be considered opposed to the substantive values he
identifies as democracy’s “conceptual core.”
On the contrary, he explicitly recognizes that the principles of freedom and equality are
“highly indeterminate” and “in need of further specification,” later suggesting that this
process of “specification” ought to happen through democratic deliberation (see Rummens,
2010). If this is to be taken seriously, it brings us back to the starting point, that is, the idea
that the decision as to who ought to be excluded from the democratic process should be
taken through an exercise of that process itself. In the final analysis, therefore, Rummens’
theory of the “concentric containment of political extremism” appears to be stuck in a
dilemma: either adopt a purely procedural conception of deliberative democracy, that nec-
essarily remains vulnerable to the threat of being overthrown legally from within, or intro-
duce a series of substantive normative premises as to what constitutes a legitimate kind of
political action or agency, which nonetheless carry with them an irreducible element of
arbitrariness in the Schmittian sense. This is the same dilemma of militant democracy we
have been focusing on from the start, only at a higher level of abstraction.
The above analysis accordingly reveals that neither liberal nor democratic accounts of
militant democracy can answer, in a non-arbitrary way, the question of who is to be treated
as an enemy of democracy, which is implicitly a question over who is to be considered a
member of the political entity itself. Indeed, as Schmitt himself already clearly pointed
out, since both liberalism and democracy are, in the final analysis, conceptions of the way
in which the political entity should be structured, they, by definition, cannot provide an
answer to the question of the boundaries of the political entity itself (Schmitt, 2008:
115–119; on this point, see also Abizadeh, 2012; Kalyvas, 2008; Naastrom, 2007). For
this reason, we argue that the re-politicization of the question of membership that is
implicit in the logic of militant democracy necessarily implies the reintroduction of a
foreign element of arbitrariness in the very functioning of democracy.4

The Expansion of the Range of Targets of Militant

Democracy
If the analysis we have provided above is correct, it follows that militant democracy fails
on its own terms as a non-arbitrary principle for excluding presumptive enemies of
190 Political Studies 65 (1S)

democracy in a democratic and constitutional way. The inherent arbitrariness of the deci-
sion over who is to be treated as an “enemy” of democracy implies that militant democ-
racy must always take the form of a “decisionist” and authoritarian exercise of power that
contradicts the very logic of the system it is supposed to protect. What we would like to
show in addition, however, is that this is not merely an abstract theoretical problem, but
rather something that has had concrete consequences on the way in which the principle of
militant democracy has been applied over the course of its history.
In contexts of stiff political contestation, the availability of measures permitting an
arbitrary exclusion of certain actors from the democratic game may provide the means for
those with the power to make this decision to exclude an indeterminately expansive range
of presumptive enemies of democracy, so as to cover more and more potential competi-
tors. Such an expansion in the range of targets of militant democracy corresponds to a
restriction of the democratic nature of the regimes in question and therefore confirms the
point that militant democracy may end up having the opposite effect than the one intended.
In what follows, we show that this is reflected in the European jurisprudence on mili-
tant democracy by the successive applications of the concept to fascist parties during the
inter-war years, communist parties during the Cold War, and various forms of religious
practice taken to represent threats for the stability and viability of democratic regimes in
the present day. To illustrate this, we focus, in particular, on three landmark legal cases
covering the period since the end of the Second World War to the present day: the so-
called KPD case, whereby the German constitutional court dissolved the German
Communist party in 1956; the Refah Partisi case, whereby the European Court of Human
Rights upheld a ban on that country’s Refah party in 2003; and the case of Sahin v. Turkey
of 2005, whereby the same court also upheld a Turkish statute banning the use of Islamic
headscarves in public universities.
Before proceeding, it should be noted that what follows is obviously not an exhaustive
analysis of all the European jurisprudence on militant democracy since the end of the
Second World War. Rather, we have selected three particularly important cases that we take
to be illustrative of the potential for expansion in the range of targets of militant democracy.
From this, it follows that the analysis we propose cannot show conclusively that the con-
crete application of militant democracy provisions will necessarily display an expansive
tendency to cover more and more potential targets over time. All we intend to show is that
this is a possibility implicit in the logic of militant democracy itself, and that the relevant
European jurisprudence on militant democracy has made this possibility manifest.5
The German KPD (Kommunistische Partei Deutschlands) case is good starting point
to examine the vicissitudes of the European jurisprudence on militant democracy in the
post-war period for at least two reasons. First, Germany is generally considered the
“home” of the concept of militant democracy, both because of its past experience with
National Socialism, and because it is the country in which the jurisprudence on this con-
cept is most extensive and developed (see Klamt, 2007). Second, KPD is also the first
instance in which a European constitutional court has made explicit reference to the con-
cept of “militant democracy.” Thus, even though the German Basic Law already con-
tained specific provisions for banning political parties intending to undermine the “free
democratic basic order,” and even though similar provisions had also already been con-
stitutionalized and applied in other countries before (Thiel, 2009), this can be considered
the first formal application of the principle of militant democracy in post-war European
constitutional history.6
Concretely, the case revolved around the question of whether the KPD could be legally
banned under Article 21 of the German Basic Law, which forbids parties that “by reason
Invernizzi Accetti and Zuckerman 191

of their aims or the behavior of their adherents seek to undermine or abolish the free
democratic basic order.” The case was ultimately decided on the basis of a series of state-
ments by the leaders of this party taken to demonstrate that its aim was “to establish a
socialist-communist system by means of a proletarian revolution and the dictatorship of
the proletariat” (BVerfGE 5, 156). Interestingly, however, the defendants never contested
this charge. Rather, their defense was based on the claim that Article 21 of the German
Basic Law was itself incompatible with the idea of a “free democratic basic order” (see
BVerfGE 5, 83).
This argument points to the core objection we develop in this article, namely, that there
is no way of establishing what constitutes an enemy of democracy in a way that is consist-
ent with liberal-democratic values, and therefore that the application of this principle
necessarily amounts to an arbitrary exercise of authoritarian power. To be sure, the court
rejected the argument. However, it is interesting to note that in order to do so it was forced
to rely on the idea of a supposedly manifest “political will” of the constitution’s framers,
which clearly reflects the lingering influence of the Schmittian idea of a constitutional
core on the post-war German jurisprudence on militant democracy:

Article 21 Section 2 of the Basic Law—the court ruled—does not conflict with a fundamental
principle of the constitution; it is an expression of a conscious constitutional-political will to
solve a border problem of the free democratic state, a reflection of the experiences of the
constitutional legislator, who thought he could not realize the principle of neutrality towards
political parties in a pure form in a specific historical situation, a confession to a militant
democracy (BVerfGE 5, 85; emphasis added).

As our analysis of the theoretical framework underscoring Schmitt’s endorsement of a

form of militant democracy has already brought out, far from solving the “border prob-
lem” in question, this appeal to the idea of a manifest “constitutional-political will”
merely covers it up. For, even granting that the framers of the German Basic Law had the
specific intention of banning any potential “threat” to the free democratic basic order, it
remained to be determined precisely what could be considered as amounting to such a
threat in the conditions in which this juridical provision was being applied, that is, in
other words, how the German political entity ought to be re-defined in 1956.
In this connection, it is noteworthy that the party in question had only obtained about
5.7% of the popular vote during the first general election of the German Federal Republic
in 1949, and then 2.2% in 1953, resulting in its exclusion from the German parliament
already on the basis of ordinary electoral law.
This marks an important contrast with the context in which Loewenstein had originally
developed the notion of militant democracy. For, at that time, fascist parties had much
greater electoral support, and indeed already succeeded in coming to power by more or
less legal means in both Germany and Italy. This is what afforded Loewenstein’s argu-
ments much of their plausibility, and sense of political urgency. In contrast, the chance of
a similar electoral victory for the KPD in 1956 was vanishingly small. The application of
militant democracy to this party, therefore, marks a first expansion in the range of poten-
tial targets of militant democracy, which effectively got rid of the criterion of “immi-
nence” that applied to fascism during the inter-war years.
A second expansion in the range of targets to which the logic of militant democracy
has been applied in Europe can then be tracked through an analysis of the Refah case,
through which the European Court of Human Rights upheld a ban on Turkey’s ruling
192 Political Studies 65 (1S)

party in 2001. The background to the case is as follows: in 1998, the Turkish Constitutional
Court dissolved the Refah Party, which had been in existence for 15 years. At the time of
the ban, this was the largest party in the country, having won 22% of the popular vote in
the general election in 1995, and was also involved in a coalition government which had
nominated the party’s leader, Necbettin Erbakan, to the position of Prime Minister of
Turkey (see Macklem, 2012).
The main reason given by the Turkish Constitutional Court for banning this party was
its support for a system of “legal pluralism,” whereby citizens of different religious per-
suasions would have been allowed to choose the specific body of law regulating certain
aspects of their life, such as family and inheritance law. In the Court’s opinion, such a
system constituted a violation of the constitutionally enshrined principle of “secularism,”
because it implied that in cases of dispute the state would have been forced to inquire into
the religion of its citizens and treat them differently on that basis (Refah, 2003: 14). While
presenting its case before the European Court of Human Rights, however, the Turkish
Government developed its argument further, explicitly appealing to the principle of “mili-
tant democracy” in order to inscribe the ban within the remit of Article 11 of the European
Convention of Human Rights, which permits restrictions on the principle of freedom of
association, to the extent that these can be shown to be “necessary in a democratic soci-
ety” (Refah, 2003: 26).
The European Court of Human Rights rejected Refah’s defense, based on the compat-
ibility of legal pluralism and secularism (Refah, 2003: 24), and ruled in favor of the
Turkish government, thereby implicitly elevating the notion of militant democracy into a
constitutional value at the European level (Refah, 2003: 34). What appears even more
significant, however, is that in so doing the court also implicitly gave its approval to an
idea which had previously been wholly extraneous to the jurisprudence on militant
democracy, namely, that such a principle could be used to justify the dissolution of a
political organization that was not explicitly opposed to democracy.
For this is a key difference between the Refah case and the previous instances of juridi-
cal exercise of the principle of militant democracy, such as the KPD case we have consid-
ered above: that while in the case of both fascism and communism, nobody—not even the
relevant parties themselves—challenged the fact that their ultimate aim was indeed to
subvert the democratic order, in the Refah case, this was precisely the issue of contention.
Thus, Refah effectively implies that a political organization can legitimately be treated as
a threat for democracy without ever even intending, or at least claiming that it intends, to
subvert it. This gets rid of the criterion of “explicitness” of the threat, which had still
applied during the KPD case.7
In the case of Sahin v. Turkey of 2005, the Court was called upon to adjudicate a con-
troversy sparked by a Turkish administrative statute banning the use of Islamic head-
scarves in public universities. In its decision, the court referred back to the Refah case,
arguing that it had already established that challenges to the principle of secularism could
legitimately be considered challenges to democracy in Turkey, and therefore that the
Turkish government had acted within the bounds of its “margin of appreciation” in estab-
lishing what kinds of restrictions to the principle of freedom of religion might be “neces-
sary in a democratic society” (Sahin, 28).
What remains of the Refah case after Sahin is therefore only the idea that presumptive
violations of the principle of “secularism” can be legitimately restricted to the extent that
states deem it “necessary to preserve the democratic order.” This can be considered to
mark a further expansion in the range of potential targets of militant democracy, inasmuch
Invernizzi Accetti and Zuckerman 193

as it relieves those seeking to make use of this principle of the burden of demonstrating
that the specific threat in question is either explicit (as was the case with the kinds of
political parties banned prior to the Refah case) or imminent (as was certainly the case
with fascism in the 1930s and allegedly also with the Refah party in 1998).8
Indeed, the appeal to the principle of militant democracy as a justification for banning
headscarves in public places effectively implies that today in Europe it has become pos-
sible to be treated as an “enemy” of democracy, even if one has no intention of forming a
political organization and competing for political power. Consider, for instance, the fol-
lowing statement made by one of the current judges of the European Court of Human
Rights, who is also widely considered to be one among the most influential contemporary
theorists of militant democracy, Andras Sajò (2012):

To the extent that religiously motivated action takes the form of a politically organized collective
action, its effects often overlap with traditional militant democracy problems, i.e., obtaining
political power via the democratic route … [However], the parallels with the problems that
triggered militant democracy are remarkable, even if the religious manifestations are not always
intent on grabbing political power … Consider for example the wearing of religious garb in
public. This may have the same impact that paramilitary uniforms had in the 1930s. Religious
insignia set in motion the same emotional mechanisms that quasi-military uniforms have on
observers and followers. Bans on the headscarf and other elements of the vest are therefore often
found to be legitimate in Western democracies (emphasis added).

The specific difference Sajò seems to pass over in this passage—that is, the differ-
ence between the paramilitary uniform worn by organizations such as the SA and the
SS in the 1930s and Islamic headscarves worn by Muslim women in European coun-
tries today—is precisely the point we have sought to bring out in this section. Namely,
that since the decision as to who constitutes an “enemy” of democracy cannot be
decided by democratic means, the range of targets to which the logic of militant
democracy is applied may be expanded to cover more and more presumptive threats
to democracy. The framework of militant democracy, then, can and at times does
provide an ostensibly democratic and constitutional fig leaf to an essentially deci-
sionistic and anti-democratic politics, restricting the scope of democratic member-
ship within a misleadingly democratic guise.
What the analysis of the European jurisprudence on militant democracy accordingly
reveals is that militant democracy provisions may end up having the opposite effect than
the one intended. For, while the question of whether the wearing of religious garb in pub-
lic represents a meaningful threat to the survival of democratic regimes remains debata-
ble, what is certain is that the application of militant democracy provisions to ban it has
significantly diminished the democratic nature of the regimes in which it has been upheld,
by arbitrarily excluding a whole range of subjects from the possibility of meaningfully
participating in public life.

Conclusion
The conclusion we draw from the above analysis is therefore that militant democracy fails
on its own terms as justiciable means for excluding presumptive “enemies” of democracy
in a legally controlled way, and that this may have dangerous political consequences
inasmuch as it may lead to an arbitrary expansion in the range of potential targets of mili-
tant democracy. The basic reason, as we have sought to bring out, is that there is no
194 Political Studies 65 (1S)

principled way of establishing what constitutes an enemy of democracy, since that is in

the final analysis a decision over the boundaries of the political entity itself. Such a deci-
sion, by definition, cannot be made by democratic means and must accordingly amount
to a sovereign exercise of “authoritarian” power. Militant democracy, in short, presents a
democratic and constitutional fig leaf, covering decisionistic and authoritarian politics.
While it is of course possible that those empowered to make such a decision may use
this power judiciously, banning actors that really do represent a threat to the survival of
the democratic regime, this is not something that the theory itself can guarantee, since a
sovereign exercise of authoritarian power, by definition, cannot be controlled by any
higher norm. The key problem we see in the inclusion of militant democracy provisions
within a constitutional framework can therefore be summed up with reference to a point
made by Jeremy Waldron (2012) concerning legal norms in general:

One of the things that happens when a norm, N, becomes a law is that people who argued in
favor of it … lose control of it. It goes out into the world and becomes the common possession
of all, to be used by all-comers in ways they think fit. We are not responsible for all uses that
may be made of N but … we ought to consider for starters whether we are comfortable with N
in the hands of our enemies … We should not make the case for such a norm based on the
vanishingly improbable supposition that only fine people like us will be involved in its
administration (p. 112).

Applied to the point we have sought to bring out concerning militant democracy, this
points to the danger of introducing legal provisions allowing public officials to ban
political parties or other kinds of political actors on the basis of the claim that they con-
stitute threats for the survival of the democratic regime. For this leaves open the possi-
bility that such provisions will be used instrumentally by the enemies of democracy
themselves, to arbitrarily exclude competitors from the possibility of participating in the
political process. To paraphrase Robert Jackson (1944), once a provision of militant
democracy is included within a legal order it “then lies about like a loaded weapon,
ready for the hand of any authority that can bring forward a plausible claim of an urgent
need” (Jackson, 1944: 246).
In making this argument, however, we do not wish to dismiss the concerns that moti-
vate theorists of militant democracy in the first place. Although we are critical of militant
democracy’s solution, the problem of the “paradox of democracy” —that is, that demo-
cratic means may be used to undermine democracy—cannot be conjured away. In order
to address this concern, we shall therefore end by gesturing toward two alternative ways
of dealing with this problem, which seek to avoid the pitfalls of militant democracy. It
should be noted, however, that the treatment of these proposals will remain largely pro-
grammatic, in the sense that they are intended mostly as indications of possible avenues
for further research, rather than as an exhaustive discussion of the multiple and interesting
issues they raise.
One possible way of addressing the problem militant democracy is meant to solve,
while avoiding its pitfalls, is to draw a clear distinction between the legal regulation of the
kinds of actions that are allowed within a democratic framework and the set of legitimate
political actors on the basis of their goals or ideologies (see Bourne, 2012, 2014). Indeed,
as several commentators have noted, only the latter, strictly speaking, should be consid-
ered as an exercise of militant democracy (see Capoccia, 2013; Issacharoff, 2007). For all
democratic regimes must necessarily involve legal norms defining what counts as an
expression of the popular will (as a matter of constitutional law), and banning certain
Invernizzi Accetti and Zuckerman 195

kinds of behavior (as a matter of criminal law). This should not, however, be considered
as amounting to a form of militant democracy, because it does not involve the exclusion
of the relevant actors from the possibility of participating in the democratic game. It only
proscribes certain kinds of behavior, whereas for the concept of militant democracy to
retain any specificity with respect to the general notions of constitutional and criminal
law, it must involve the proscription of specific actors, on the basis of their goals or
ideologies.
On this basis, it could perhaps be suggested that democratic regimes ought to insure
themselves against the so-called “paradox of democracy” by relying exclusively on the
means of constitutional and criminal law, without entering into the terrain of militant
democracy. For instance, statutes banning paramilitary uniforms or overt political
intimidation would not amount to a form of militant democracy according to the strict
definition implied in the distinction above, since they do not proscribe any actors from
the possibility of participating in the democratic game. However, they might go some
way toward preventing presumptive enemies of democracy from succeeding in their
goals.9
Another possible way of dealing with the same problem is to pursue the opposite
political strategy from the one implicit in the idea of militant democracy—that is, to strive
as much as possible to include the presumptive enemies of democracy within the legal
framework of democratic norms, rather than excluding them. This idea is developed, for
instance, by Nancy Rosenblum (2008) through a discussion of the various processes
whereby “anti-democratic” parties can be drawn into the electoral game and, as a result
of having to compete within it, may reformulate their objectives in ways that are consist-
ent with democratic partisanship (pp. 453–455). As she puts it, this kind of “faith in poli-
tics” may offer even anti-systemic political actors incentives and a foothold in the
democratic process that can result in a genuine strengthening of democracy where exclu-
sion would weaken it.10
To be sure, neither of these possible ways of addressing the so-called “paradox” of
democracy can offer any absolute guarantees that a democratic regime will not over-
throw itself by democratic means. For if the enemies of democracy turn out to be an
overwhelming majority, no coherent conception of democracy would seem to be able
to prevent that. However, in the final analysis, it is perhaps precisely this phantasm of
a totally “riskless democracy” that is the source of the problem. For that seems to
involve the opposite paradox from the one we have been considering up to this point,
namely, that a democratic regime may potentially have to be enforced against the
people’s will.
If democracy is to be understood as a form of government based on the principle of
freedom as collective self-government, this suggests that it must inevitably be willing to
assume a certain measure of political risk—as was painfully recognized by Hans Kelsen
in the tragic but also lucid passage we quoted at the beginning of this article. Of course,
this does not mean that all democratic orders are equally risky, or that there is nothing
democracy can do to make itself more secure. But at the very least, the medicine must not
be more dangerous than the infirmity. Militant democracy fails this test.

Acknowledgements
We would like to thank Nicolas Guilhot, Alex Kirshner, Jan-Werner Müller, Peter Niesen, Stefan Rummens,
and Nadia Urbinati, as well as the anonymous reviewers from Political Studies, for invaluable comments on
earlier versions of this manuscript.
196 Political Studies 65 (1S)

Funding
The research that led to this publication was also partially supported by the ERC Research Project RESIST,
headed by Justine Lacroix at the Université Libre de Bruxelles.

Notes
  1. In addition to the examples of fascism, communism, and religion that are analyzed in this article, recent
scholarship has identified terrorism as a fourth contemporary field of application for provisions of militant
democracy (see Van Biezen and Molenaar, 2012). Although these provisions fall outside the scope of our
discussion, we believe our basic thesis about the arbitrariness of militant democracy applies to these provi-
sions as well.
  2. As was pointed out by Sajò (2006), the most plausible way of making sense of Loewenstein’s distinction
between “constitutional government” and “emotionalism” is in terms of the Weberian distinction between
“legal-rational” and “charismatic” forms of authority, which Loewenstein in fact seems to allude to in
the definition of constitutional government as a way of guaranteeing the “rationality and calculability of
administration.” However, the comparison with Weber also reveals what is wrong with Loewenstein’s
appropriation of such categories. For, in Weber’s work, “legal-rational” and “charismatic” authority are
posited as ideal-types, not as concrete phenomena in the world. Their purpose is therefore to provide
categories for a sociological interpretation of reality, not for drawing juridical distinctions. Indeed, Weber
makes clear that most concrete cases usually involve elements of both “legal-rational” and “charismatic”
authority (Weber, 1978). Thus, these categories cannot serve as means to establish objective distinctions
between phenomena, as either of one kind or the other.
  3. In this respect, it might be useful to clarify that the specific kind of arbitrariness we are claiming is implicit
in the logic of militant democracy is not reducible to the inevitable element of arbitrariness implicit in all
concrete applications of law, which stems from the fact that the transition from the generality of the law
to the particularity of individual cases requires an exercise of reflexive judgment in Kant’s sense (on this
point, see, for instance, Kelsen, 2006: 349). Our claim is that militant democracy necessarily involves
an additional and qualitatively distinct kind of arbitrariness, which stems from the fact that the decision
over who to exclude from the possibility of participating in the democratic game is ultimately a decision
over the borders of the political entity, which, by definition, cannot be taken by democratic means, since
the very idea of democracy presupposes that the borders of the demos are already defined. Thus, militant
democracy provisions prove to be qualitatively different from other kinds of legal provisions in that they
re-politicize the question of membership in the political community and therefore introduce a different
order of arbitrariness within the framework of the legal order compared to ordinary legislation.
  4. To be sure, this argument implies conceding that, at the moment of their founding, all democratic regimes
necessarily involve an irreducible element of arbitrariness, since the decision over the boundaries of the
political entity, by definition, cannot be taken by democratic means. However, what appears especially
problematic about militant democracy is that, by introducing means for renegotiating the question of
membership even in times of ordinary constitutional functioning, they allow the same problem to re-
emerge once the democratic regime has already been established. As has been pointed out by most con-
temporary authors working on this question (Abizadeh, 2012; Kalyvas, 2008; Naastrom, 2007), it is in
principle possible for democratic regimes to “bracket” the inherent arbitrariness associated with the deci-
sion over the boundaries of the political entity by restricting it to the moment of constitutional founding,
and therefore effectively treating the demos as a given. However, by re-politicizing that question, militant
democracy blurs the distinction between constitutional foundings and ordinary politics, and therefore
transfers the arbitrariness associated with the former into the latter.
  5. To show that the expansion in the range of potential targets of militant democracy is a real possibility
only requires pointing to individual cases where the principle of militant democracy has been applied to
actors that seem categorically different from the ones it was originally intended to apply to in relevant
ways. Thus, even though more work would need to be done to show that the specific cases we focus on
are representative of a broader tendency at work in the European jurisprudence on militant democracy,
the analysis we provide is sufficient to make our point. The task of providing categories for an exhaus-
tive analysis of the European—and indeed global—jurisprudence on militant democracy is currently
being carried out by several legal and political scholars working on this topic, such as Markus Thiel
(2009), Angela Bourne (2012, 2014), and Casal Bértoa et al. (2015). Although none of their work so far
addresses the specific issue of the potential for expansion in the range of targets to which the principle
is applied, the data they have gathered could be used perhaps to test the stronger hypothesis that the
Invernizzi Accetti and Zuckerman 197

concrete application of militant democracy provisions has in fact led to an overall expansion of the range
of targets to which militant democracy is applied. Such a project is nonetheless way beyond the scope of
the present article.
  6. To be sure, the German Constitutional Court had also already made use of Article 21 of the Basic Law to
ban the Socialist Reich Party (SRP), a successor to the Nazi party, in 1953. In its judgment, however, the
Court did not refer explicitly to the concept of “militant democracy,” in a large part surely because the
decision was seen as a relatively uncontroversial application of the purpose for which Article 21 had been
included in the Basic Law in the first place, and therefore as not requiring much theoretical substantiation
(see Thiel, 2009).
  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 (2006, 2012).
  8. For a further discussion of the political significance of the Sahin case with respect to the issue of Church–
State relations, see also Evans (2006) and Evans and Thomas (2006).
  9. To be sure, the above distinction between anti-democratic actors and actions might not always be clear-
cut, since actors can only be legally defined on the basis of their actions. On this basis, in her discussion
of this issue, Angela Bourne (2012) suggests that militant democracy should not be understood as a dis-
crete variable, but rather as a matter of degree (or type), since all constitutional democracies necessarily
exclude some kinds of actors from the possibility of participating in the democratic game in the act itself
of specifying rules of participation. This is an interesting and potentially promising suggestion, inasmuch
as it implies that the relevant question is not whether we want militant democracy or not, but rather how
much of it and in what way. It does not, however, detract from the significance of our argument, which,
from this perspective, may be interpreted as a way of pointing out some of the dangers implicit in any
move toward a more militant democracy, and therefore as a case for striving to make democratic regimes
as inclusive as possible, in conformity with the basic principle of “identity” between the subjects and the
objects of legal regulation.
10. Far from a starry-eyed panacea, Rosenblum’s plea for “faith in politics” can claim a robust body of social
scientific and historical evidence behind it. On one hand, numerous scholars of the relations between
Catholicism and democracy in Europe have noted how this historic opposition was overcome precisely
through the incorporation of political Catholicism within the framework of modern democratic regimes,
operated by the various Christian Democratic parties that began competing in democratic elections since
the beginning of the twentieth century (see Cary, 1996; Kalyvas, 1996; Kalyvas and Van Kersbergen,
2010). On the other hand, several scholars have also noted how the exclusion of specific political groups
and parties from the possibility of participating in the democratic game has frequently ended up having
a radicalizing effect on the subjects concerned, thereby ultimately increasing, rather than decreasing, the
entity of the threat for the regimes in question (see Nasr, 2005).

References
Abizadeh A (2012) On the Demos and Its Kin: Nationalism, Democracy, and the Boundary Problem. American
Political Science Review 106 (4): 867–882.
Avineri S (2004) Introduction. In: Sajò A (ed.) Militant Democracy. Utrecht: Eleven International Publishing,
pp.1–14.
Balakrishnan G (2002) The Enemy: An Intellectual Biography of Carl Schmitt. New York: Verso.
Bourne A (2012) The Proscription of Parties and the Problem with Militant Democracy. The Journal of
Comparative Law 7 (1): 196–213.
Bourne A (2014) Security or Tolerance? The Proscription of Political Parties in Democratic States. Paper pre-
sented at ECPR joint sessions. Salamanca, April.
Boyle K (2004) Human Rights, Religion and Democracy: The Refah Party Case. Essex Human Rights Review
1 (1): 12.
Bulla E (1973) Die Lehre von der streitbaren Demokratie: Versuch einer kritischen Analyse unter besonderer
Beru ̈cksichtigung der Rechtsprechung des Bundesverfassungsgerichts. Archiv Des Öffentliche Rechts
98 (3): 28–46.
BVerfGE [Bundesverfassungsgericht] 5, 85 - KPD-Verbot (17 August 1956). Available at: http://www.servat.
unibe.ch/dfr/bv005085.html (accessed 15 February 2016).
Capoccia G (2013) Militant Democracy: The Institutional Bases of Democratic Self-Preservation. Annual
Review of Law and Social Sciences 9: 207–226.
Cary N (1996) The Path to Christian Democracy: German Catholics and the Party System from Windthorst to
Adenauer. Cambridge, MA: Harvard University Press.
198 Political Studies 65 (1S)

Casal Bértoa F, Piccio DR and Rashkova E (2015) Party Laws in Comparative Perspective: Evidence and
Implications. In Van Biezen I and Ten Napel HM (eds.) Political Parties and Public Law: The Netherlands
in Comparative Perspective. Leiden: Leiden University Press.
Evans C (2006) Islamic Scarf in the European Court of Human Rights. The Melbourne Journal of International
Law 52. Available at: http://www5.austlii.edu.au/au/journals/MelbJIL/2006/4.html (accessed 15 February
2016).
Evans C and Thomas CA (2006) Church-State Relations in the European Court of Human Rights. BYU Law
Review 699. Available at: http://digitalcommons.law.byu.edu/lawreview/vol2006/iss3/4 (accessed 15
February 2016).
Foner E (1988) Reconstruction: America’s Unfinished Revolution 1863–1877. New York: Harper & Row.
Harvey P (2004) Militant Democracy and the European Convention on Human Rights. European Law Review
29: 407–420.
Issacharoff S (2007) Fragile democracies. Harvard Law Review 120 (6). Available at: http://harvardlawreview.
org/2007/04/fragile-democracies/
Jackson R (1944) Dissent Against Decision in Korematsu v. United States (No. 22). Available at: https://www.
law.cornell.edu/supremecourt/text/323/214#writing-USSC_CR_0323_0214_ZD2 (accessed 15 February
2016).
Kalyvas A (2008) Democracy and the Politics of the Extraordinary. Cambridge: Cambridge University Press.
Kalyvas S (1996) The Rise of Christian Democracy in Europe. Ithaca, NY: Cornell University Press.
Kalyvas S and Van Kersbergen K (2010) Christian Democracy. Annual Review of Political Science 13:
183–209.
Kelsen H (1932) Verteidigung der Demokratie. In: Blätter der Staatspartei, Jahrgang 2, Heft 3/4.
Kelsen H (2006) General Theory of Law and State. London: Transaction Publishers.
Kirshner A (2014) A Theory of Militant Democracy: The Ethics of Combatting Political Extremism. New
Haven, CT: Yale University Press.
Klamt M (2007) Militant Democracy and the Democratic Dilemma: Different Ways of Protecting Democratic
Constitutions. In: Bruinsma F and Nelken D (eds) Explorations in Legal Cultures. The Hague: Elsevier,
pp.133–159.
Lefort C (1989) Democracy and Political Theory. Cambridge, MA: MIT University Press.
Loewenstein K (1937) Militant Democracy and Fundamental Rights. American Political Science Review 31
(3): 417–432.
Macklem P (2006) Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination. International
Journal of Constitutional Law 4 (3): 488–516.
Macklem P (2012) Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe.
Constellations 19 (4): 575–590.
Müller J-W (2003) A Dangerous Mind: Carl Schmitt in Post-War European Thought. New Haven: Yale
University Press.
Müller J-W (2012) A “Practical Dilemma which Philosophy Alone Cannot Resolve”? Rethinking Militant
Democracy. Constellations 19 (4): 536–539.
Naastrom S (2007) The Legitimacy of the People. Political Theory 35 (5): 624–658.
Nasr V (2005) The Rise of Muslim Democracy. Journal of Democracy 16 (2): 13–27.
Niesen P (2002) Anti-Extremism, Negative Republicanism, Civil Society: Three Paradigms for Banning
Political Parties. German Law Journal 3 (7): 249–286.
Nolte G and Fox G (1995) Intolerant Democracies. Harvard International Law Journal 36 (1): 1–70.
Pedahzur A (2004) The Defending Democracy and the Extreme Right: A Comparative Analysis. In: Eatwell
R and Mudde C (eds) Western Democracies and the New Extreme Right Challenge. London: Routledge,
pp.108–132.
Popper K (1945) The Open Society and Its Enemies. London: Routledge.
Refah (2003) Case of Refah Partisi (The Welfare Party) and Others v. Turkey. Available at: http://hudoc.echr.
coe.int/eng#{“itemid”:[“001-59617”]} (accessed 15 February 2016).
Ridder H (1957) Streitbare Demokratie? Neue Politische Literatur 4 (3): 352–368.
Rosenblum N (2008) On the Side of the Angels: An Appreciation of Parties and Partisanship. Princeton, NJ:
Princeton University Press.
Rummens S (2010) Defending Democracy: The Concentric Containment of Political Extremism. Political
Studies 58 (4): 649–665.
Rummens S (2012) Concentric Democracy: Resolving the Incoherence in the European Court of Human Rights’
Case Law on Freedom of Expression and Freedom of Association. International Journal of Constitutional
Law 10 (1): 106–126.
Invernizzi Accetti and Zuckerman 199

Sajò A (ed.) (2004) Militant Democracy. Utrecht: Eleven International Publishing.

Sajò A (2006) From Militant Democracy to the Preventive State. Cardozo Law Review 27 (5). Available at:
http://cardozolawreview.com/Joomla1.5/content/27-5/SAJO.WEBSITE.pdf
Sajò A (2012) Militant Democracy and Emotional Politics. Constellations 19 (4): 562–574.
Scheuerman W (1994) Between the Norm and the Exception: The Frankfurt School and the Rule of Law.
Cambridge, MA: MIT Press.
Schmitt C (1985) The Crisis of Parliamentary Democracy. Durham, NC: Duke University Press.
Schmitt C (2004) Legality and Legitimacy. Durham, NC: Duke University Press.
Schmitt C (2008) Constitutional Theory. Durham, NC: Duke University Press.
Talmon J (1952) The Origins of Totalitarian Democracy. London: Secker & Warburg.
Thiel M (ed.) (2009) The “Militant Democracy” Principle in Modern Democracies. London: Ashgate.
Van Biezen I and Molenaar F (2012) The Europeanisation of Party Politics. West European Politics 35 (3):
632–656.
Waldron J (2012) Justifying Targeted Killings with a Neutral Principle? In: Finkelstein C, Ohlin JD and Altman
A (eds) Targeted Killings: Law and Morality in an Asymmetrical World. Oxford: Oxford University Press,
pp.112–134.
Weber M (1978) Economy and Society: An Outline of Interpretive Sociology. Berkeley, CA: University of
California Press.

Author Biographies
Carlo Invernizzi Accetti is Assistant Professor of Political Theory at the City University of New York (City
College) and an Associate Researcher at the Institut d’Etudes Politiques de Paris (Sciences Po). He holds a PhD
from Columbia University and his book entitled Relativism and Religion. Why Democratic Societies Do Not
Need Moral Absolutes is forthcoming with Columbia University Press (2015).

Ian Zuckerman is currently a Post-Doctoral Teaching Fellow at the Thinking Matters program at Stanford
University. He holds a PhD in Political Theory from Columbia University and is currently working on a book
manuscript on the theory and practice of emergency powers in the United States.