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

Abstract

The international legality of militant democracy - when and how a constitutional democracy can legally act in an antidemocratic manner to combat threats to its democratic existence - is far from clear. The legality of legal pluralism - the extent to which international law authorizes transformative political agendas that seek to implement forms of religious, cultural or national autonomy - is also unclear. The elusive legality of these political developments creates conditions for the abuse of power both by states acting in defense of democracy, and by religious, cultural and national communities seeking a measure of legal autonomy. Marked by a shared normative commitment to the paradoxical principle 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. That this is the case is revealed dramatically by the recent decision of the European Court of Human Rights in Refah v. Turkey, in which the Court upheld the banning of a political party that advocated a form of legal pluralism which would introduce elements of Islamic law into the Turkish legal order. Refah v. Turkey establishes a legal site in which contestations over the boundaries of legal pluralism and militant democracy will take place in the future, and reveals how European human rights law seeks to realize the democratic potential of self-determination.