Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination

Posted: 29 Feb 2008

See all articles by Patrick Macklem

Patrick Macklem

University of Toronto - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: July 2006

Abstract

The legality of militant democracy-Can a constitutional democracy act legally in an antidemocratic manner to combat threats to its existence?-is far from clear. The legality of legal pluralism-the extent to which international law authorizes political agendas that seek to implement various forms of autonomy-is also unclear. The elusive legality of these developments creates conditions for the abuse of power both by states defending democracy and by religious, cultural, and national communities seeking a measure of independence. Marked by a shared normative commitment to the paradox of self-determination, the relationship between legal pluralism and militant democracy provides insight into the legality of both developments in ways that might be overlooked by viewing each in isolation. This is revealed dramatically by the recent decision of the European Court of Human Rights in Refah Partisi v. Turkey, in which the Court upheld the banning of a political party that was advocating a form of legal pluralism that would introduce elements of Islamic law into the Turkish legal order. Refah establishes a legal site in which contestations over the constitutional boundaries of legal pluralism and militant democracy will take place in the future.

Suggested Citation

Macklem, Patrick, Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination (July 2006). International Journal of Constitutional Law, Vol. 4, Issue 3, pp. 488-516, 2006, Available at SSRN: https://ssrn.com/abstract=1096020 or http://dx.doi.org/10.1093/icon/mol017

Patrick Macklem (Contact Author)

University of Toronto - Faculty of Law ( email )

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