Militant Democracy and the Right to Political Association

Ch. 14.

Khramova T. M., Troitskaya A.

Even the most sustainable constitutional systems equip themselves with defensive mechanisms aimed at preserving the democratic nature of the state for generations ahead. Historical experience has shown that a certain degree of militancy is necessary to deter extreme political forces from abusing democratic procedures to gain and retain power. The problem, however, arises from the awareness that preventive mechanisms may unreasonably undermine fundamental political rights, such as freedom of political association.

This chapter aims at uncovering the complexity of the doctrine of “militant democracy” and presenting a variety of constitutional practices implementing the doctrine. The chapter focuses on the existing models of tackling the activity of antidemocratic political parties, acknowledging, however, that the spectrum of militant measures includes other defensive mechanisms. The chapter concludes with preliminary findings regarding the difficulties of creating a coherent prescriptive theory of militant democracy. Due to the risks associated with overuse and misuse of defensive mechanisms, courts should demonstrate caution and continue to develop strategies justifying only those restrictions that are crucial for preservation of the democratic constitutional order.

Keywords: democracy, Constitutional court, militant democracy, right to political association, prohibition of political parties

In book

Encyclopedia of Contemporary Constitutionalism

Springer, 2021.