Militant Democracy Unmoored? The Limits of Constitutional Analogy in International Law

Abstract

Abstract As constitutional democracies are faced with authoritarianism and other anti-constitutionalist threats, international law is seeing its own challenge from the increasing influence of authoritarian states. Yet, departing from the recent tendency to model the international legal order after constitutional governance, international lawyers seem to show little interest in the concept of militant democracy, while the latter lies at the centre of current debates surrounding constitutional self-defence. This article aims to bring to light the current limits of constitutional analogy in international law through an investigation into the discrepancy between constitutional and international lawyers in responding to authoritarian co-optation. A three-pronged argument is submitted. First, in contrast to other appeals for constitutional self-defence, the concept of militant democracy is contentious where it stands in tension with the constitutional ethos. Second, while militant democracy as a constitutional concept presupposes a democratic and normative version of constitutional ordering, the absence of militant democracy on the international plane betrays the non-democratic, albeit representative, character of the international legal order. Third, attempts to internationalize the concept of militant democracy should be rejected as an international version of militant democracy would only portend an (un)holy alliance of militant democracies and exacerbate the political division in international society. It is suggested that, from out of a realignment of international law with the constitutional project of progress, a new constitutional analogy may emerge, giving fresh impetus to the realization of international law’s universal liberating promise.