Restorative Disobedience: Should Governments Restore Democracy Through Disobedience?

This paper develops a normative theory of restorative disobedience: the idea that governments emerging from democratic decay may permissibly depart from certain democratic procedures and rule-of-law requirements when such departures are necessary to restore the conditions of liberal democracy. Building on recent work on democratic frontsliding and the European Union understood as a multilateral democracy, the paper conceptualizes restorative disobedience as a distinct form of state action that shares features with civil disobedience and militant democracy. It confronts the characteristic dilemma of restorative disobedience: how far a new government may permissibly go in dismantling autocratic enclaves and legal structures that still claim the authority of law. It argues that restorative disobedience is justified only under stringent conditions: actions must be publicly articulated as fidelity to the constitutional order, institutionally self-limiting, proportional to the authoritarian entrenchment they confront, and embedded within a trajectory of democratic reconstruction rather than partisan self-empowerment. Specifically, the paper addresses (1) how restorative disobedience, as state action, diverges from traditional theories of civil disobedience tailored to individuals and civil society actors, (2) whether the conditions of frontsliding states are legitimate enough to require such limited action or whether theories of revolutionary action would be more appropriate, (3) the overlap and differences with theories of militant democracy, and (4) the application of this framework to the European Union and, in particular, to Hungary. The paper concludes by arguing that, under the proposed criteria, certain exceptional measures are democratically legitimate and should be normatively supported and even recognised by EU institutions tasked with safeguarding the Union’s democratic foundations.