The European Union as ‘Militant Democracy’?
iCourts Working Paper Series, No. 232
IMAGINE Working Paper, No. 15
25 Pages Posted: 10 Mar 2021
Date Written: January 7, 2021
In response to the rise of authoritarianism in Poland and Hungary, several prominent scholars have called upon the EU to intervene in order to protect its constitutional values. One of the strongest albeit controversial arguments in favour of an intervention is that the EU is a form of transnational ‘militant democracy’. This chapter partly agrees with this assessment. The post-WWII European ‘constitutional imagination’ is shaped by the interwar collapse of the European legal and political order. This led to the development of a new form of post-fascist constitutionalism founded upon a ‘fear of the people’. Within post-fascist constitutionalism, ‘Europe’ promises to save the European peoples from themselves. Nevertheless, this type of constitutionalism is not dominant in all the Member States. At least two other varieties of constitutionalism influence the EU Member States – ‘evolutionary constitutionalism’ and ‘post-communist constitutionalism’ – both of which have an ambiguous, yet intimate, relationship to the project of European integration.
Keywords: anti-totalitarian constitutionalism, back-sliding, constrained democracy, post-communist constitutionalism, varieties of constitutionalism
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