Democracy faces an array of challenges, varying by region but also sharing common themes across the globe. Arguably, the most important of these challenges today is the rise of authoritarian and right-wing populism. Given this, the question arises whether and how law can protect democracy. Researchers across Max Planck Law have addressed this question in various ways, though two stand out: first, through examining domestic legal frameworks, and second, by exploring the role of EU law.
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Domestic Law and the Protection of Democracy
In June 2023, researchers in the Department of Public Law at the Max Planck Institute for the Study of Crime, Security and Law held a two-day event entitled ‘Democracy and Counter-Extremism’. It examined the growing concerns with counter-extremism and democratic rule, particularly looking at how legal avenues to protect democracy from extremists can be seen as desirable yet not without risks, including the potential undermining of rights of liberty and free association.
Such risks were particularly well explained by Jakob Hohnerlein (Senior Researcher) in his presentation entitled ‘Germany’s Militant Democracy: A Danger to Democracy Itself?’ The concept of ‘militant democracy’ was initially developed by Karl Loewenstein in 1937 as a response to growing fascism in Europe. Today, it is generally understood to mean the lawful restriction of the political rights of those who threaten liberal democratic institutions. In Germany, such restrictions are enshrined in articles 9, 18, and 21 Basic Law, as well as in numerous provisions of statutory law, eg on the observation of ‘constitutional enemies’ by the internal secret service.
In his presentation, Hohnerlein addresses whether militant democracy is fundamentally incompatible with democracy itself. In other words, does it turn democracy into precisely the authoritarianism that it seeks to combat? Here and later in a journal publication, Hohnerlein argues that militant democracy ought not be an impediment to political change, even if such change is perceived as radical. What is important is that it safeguards the basic principles of human dignity, democracy, and the rule of law at the heart of liberal democracy. This is why it is crucial to keep a close eye on the developments of right-wing extremists, without tarring other benign yet progressive movements with the same brush.
In a complementary article, Katrin Werner-Kappler (alumna) directly addresses the ‘law of counter-extremism’. The article analyses the complexity of legal responses to extremism in Germany and highlights the importance of understanding counter-extremism not in isolation but as part of an integrated system informed by socio-political debate, especially when considering the thresholds at which courts should intervene. A more holistic approach, Werner-Kappler argues, could be fruitful in assessing the line between potential and actual extremist behaviour.
EU Law and the Protection of Democracy
At the Max Planck Institute for Comparative Public Law and International Law , a number of researchers have focused on the role of EU law and courts in the protection of democracy. For example, Florian Kriener (Senior Research Fellow) and others published a comment in 2023 entitled ‘The EU Response to Foreign Interference: Legal Issues and Political Risks’. In it, they critique the European Commission’s ‘Defence of Democracy’ initiative, which involves a potential directive requiring all interest groups to disclose their non-EU funding. Such a move towards more transparency is aimed at protecting the integrity of the democratic political process, especially in the light of Quatargate. However, severely restricting foreign funding potentially risks trapping good-faith actors, such as internationally funded NGOs, in its net.
The authors ultimately call for more terminological precision in dealing with the issue as well as an impact assessment on the consequences of any restrictions on funding for rights in general. As it happens, after the comment was published, such an impact assessment was indeed launched. The issue is another good example of how even when a legal response to the protection of democracy initially seems straightforward, thinking through the details of its implementation reveals potentially severe adverse consequences.
For a deeper analysis of the stakes involved, Kriener has published a monograph, Protests and Intervention (trans), on the problematics around foreign support for non-violent, pro-democracy, and human rights protest movements. He engages in an in-depth analysis of the normative framework for the support of such movements, especially in the context of the fundamental principle of non-intervention in international law, which prohibits states from intervening in the internal affairs of other states. The book further includes an important chapter on the principle of democracy in international law.
We have seen how German constitutional law can be used to ‘militantly’ restrict rights in defence of democracy. However, what legal measures can be taken if and when illiberal governments enter power elsewhere, as in Hungary or, until recently, Poland? In their article ‘Transformative Constitutionalism in Luxembourg: How the Court can Support Democratic Transitions’, available on SSRN and in the Columbia Journal of European Law, Armin von Bogdandy (Director) and Luke Dimitrios Spieker (Research Fellow) suggest the Court of Justice of the European Union (Court) should adopt a new legal practice of ‘transformative constitutionalism’.
Although transformative constitutionalism was originally developed in South Africa during the Mandela era, the authors adapt the idea for the European context. They define it as ‘a judicial practice of interpreting and applying constitutional provisions with the goal of overcoming systemic deficiencies’.
The authors note that the Court has already started to mobilize the EU’s values in Article 2 Treaty of European Union in the context of Hungary and Poland, but that it has initially focused on defending these values—‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights …’—against specific national measures. However, by framing the Court’s jurisprudence in terms of transformative constitutionalism, the authors argue that a more forward-looking and constructive attitude can be taken towards court-driven transformations of society.
Against this backdrop, the authors suggest the Court can become an active ally in supporting democratic transitions in Member States that suffer from systemic deficiencies. This support can take two forms. First, in the run-up to an election, the Court can insist on the essential preconditions for democratic change. In particular, it should start reviewing whether the Member State observes the essence of Charter rights, such as the freedom of expression, media and academia, and other democratic minimum standards. Second, after an election and a change of government has taken place, the Court can support the newly elected government in leading its country back to the path of liberal democracy, for instance, by removing perpetrators from a packed judiciary or by breaking partisan constitutional entrenchments.
Summary Remarks
The work of Max Planck Law researchers shows that the legal protection of democracy is a delicate balance between guarding against extremism and preserving the freedoms and rights at the heart of liberal democracy. Whether a national legal instrument of ‘militant democracy’ or an EU ‘Defence of Democracy’ directive, both need to be wary of not undermining the very democratic processes they seek to protect. Moving forward, the idea of transformative constitutionalism emerges as a promising avenue for not only the EU-wide defence of democracy but also for fostering conditions that enable liberal democratic change. Yet, as the authors themselves note, whether their proposals ‘make for good law is for others to decide’.
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