Abstract
Militant democracy does not appear as a classic legal concept. Yet, it certainly reflects one of the most important transformations in contemporary public law. First conceived in the 1930s to describe and justify legislation enacted to fight the rise of fascism, it was subsequently revisited and further developed in post-war positive law, particularly in the Federal Republic of Germany and in international human rights protection conventions. Since then, militant democracy has represented a solution to the dilemma faced by democracies when confronted with the existence of authoritarian political movements: while the regime is founded on pluralism and liberalism, to continue to exist, it should also protect itself from forces seeking to undermine it. Employing the comparative law method and examining the legal scholarship dedicated to this concept, this thesis highlights that militant democracy constitutes a paradoxical constitutional doctrine that is deployed both in the domestic law of certain States (Germany, Austria, Spain, France, Italy) and in the legislation of international organisations (Council of Europe, EU, OAS, AU, UN, ECOWAS). Beyond the diversity of its expressions, the doctrine of militant democracy is characterised by an attempt to protect liberal democracy against subversive political organisations and authoritarian states. Yet, herein lies the first paradox: while it aims to preserve the democratic system as it is, it engenders a process of transformation of the system itself. By positioning democracy as an absolute, it tends to distance it from the ideal type of democracy and bring it closer to the ideal type of autocracy. However, militant democracy is paradoxical to the end, as it never really renounces classical liberal guarantees to defend itself. Rather than the radical formula attributed to Saint-Just – “No freedom for the enemies of freedom” – militant democracy echoes the more moderate formulation of the German Federal Constitutional Court – “No unconditional freedom for the enemies of freedom”. As a result of the ongoing development of this doctrine, the study also provides an insight into what democracy has become – or may sometimes become. When faced with the dilemma of choosing between survival and principles, democracy seeks a delicate balance.