26 Pages Posted: 19 Jan 2012 Last revised: 1 Feb 2012
Date Written: January 12, 2012
The most sensational and unique contribution of Germany’s national security constitution has made to the common constitutional struggle to balance security and liberty is the theory of “militant democracy.” Andras Sajo, the best-known contemporary theorist of militant democracy, has written to advocate the implementation of militant democracy in the present struggle against terrorism. “The counter-terror state, following the logic of militant democracy intends to protect certain fundamental rights and values by denying those rights to some people who are believed to abuse the system.” Sajo’s representation of how a comparist would analyze the claims that America can borrow and transplant Germany’s militant democracy as a weapon in the struggle against global terrorism is a traditional, functionalist response.
How should a comparist analyze the claims that America might borrow and transplant Germany’s militant militant democracy as a weapon in the struggle against terrorism? The functionalism tradition “considers legal problems and their solutions in isolation” and “treats comparative law as a technique of problem solving.” The result of this problem-solving emphasis was that comparative law presented issues “generically,” “detached” from specifics, and abstracted from their relevant contexts in an effort to construct ideal law. Functionalism may not address the relevance of values to constitutional protection of democracy or the extent to which “militant democracy” raises critical tradeoffs best understood in light of the unique features of a particular legal or political culture.
The contextual method endeavors to situate various constitutional problems in their animating political circumstances. This contextualization of problems and norms greatly complicates, if it does not confound, attempts at borrowing a legal regime, like Germany’s militant democracy for use in another setting, like America’s struggle with terrorism.
The discursive comparative method focuses on the social milieu in which sociological, historical, economical, and political norms are found. In the case of Germany - economic recovery, then stability, was fundamental to peace, stability, and security because of the widespread devastation confronting the Germans after the war. The contextual comparative effort revealed the fact that economic development played a critical role in pursuing postwar Germany against the enemies of democracy.
Keywords: comparative law, constitutional law, international law, transnational law
JEL Classification: K10, K33
Suggested Citation: Suggested Citation
Miller, Russell, U.S. National Security, Intelligence and Democracy: From the Church Committee to the War on Terror (January 12, 2012). Washington & Lee Legal Studies Paper No. 2011-27. Available at SSRN: https://ssrn.com/abstract=1984156