Towards a reflexive conception of defending democracy

This paper approaches the challenge of defending a polity’s democratic nature, in particular the idea of militant democracy, through the lens of Forstian theory. It argues that the academic debate on whether the normative justification of militant democracy rests in either individual liberty rights or the value of democratic participation fails to capture the normative root of democracy. A conception of ‘reflexive democracy’, building on the work of Rainer Forst, allows for developing a more attractive and theoretically sound justification for democratic self-defence – one that overcomes the distortive framing of ‘substantive vs. procedural’. Moreover, a Forstian conception of democracy demonstrates that also the famous paradox of militant democracy (i.e. restricting democratic rights for defending democracy) transcends the substantive-procedural divide. The first part of this paper develops the conception of ‘reflexive democracy’ as well as the main characteristics of the resulting account of militant democracy. Based on Forstian thought, it establishes the normative defence-worthiness of democracy in the abstract and delineates against which kind of political acts and actors democratic self-defence ought to be directed. Against this background, the second part contrasts a reflexive conception of (militant) democracy with two contemporary normative accounts of militant democracy that can be classified as ‘substantive’ and ‘procedural’ respectively. It is argued that grounding the justification of militant democracy in both individual freedom rights and democratic participation as emerging in a co-determinative way from the moral right to justification represents an attractive alternative to the long-standing (false) dichotomy between substantive and procedural accounts in normative militant democracy theory. The rights granting individual freedom and political participation are two sides of the same, democratic coin. Hence, they should be perceived as the co-determinative ‘Schutzgut’ of any efforts to protect democracy. On the flipside, this also implies that any form of rights restriction in an effort to defend democracy prima facie produces a democratic paradox. Starting from this, the last part of this paper puts different forms of democratic self-defence into a normative perspective. It emerges from Forstian theory that, while the preferable approach to defending democracy is a non-militant one, militant democracy is permissible under certain (exceptional) circumstances. Regarding the latter, ‘reflexive democracy’ allows for developing certain intermediate principles for when, against whom and in what legal form militant democracy represents a justifiable form of democratic self-defence.