I often wonder whether we do not rest
our hopes too much upon constitutions,
upon laws and upon courts.
These are false hopes; believe me ….
Liberty lies in the hearts of men and women;
when it dies there, no constitution, no law,
no court can even do much to help it.
Judge Learned Hand
‘The Spirit of Liberty’ (1944)
Introduction
Far-right, anti-systemic parties across the globe are increasingly winning elections and coming into power. In Europe, this development has been driven by Poland and Hungary, where Jaroslaw Kaczyński’s Law and Justice (PiS) and Victor Orbán’s Fidesz parties pioneered ‘illiberal’ democratic regimes during their extended stints in government (and have continued to promote these ideas since going into opposition in 2023 and 2026, respectively).Footnote 1 In light of this challenge to Europe’s postwar system of liberal democracy, both militant democracy and democratic defense more generally are once again on the theoretical and political agenda.
What makes the situation in Europe unique is that attempts at democratic defense occur not only at the state, but also at the supranational level.Footnote 2 In the aftermath of the Second World War, the newly liberated states of Western Europe developed into ‘stable’ or ‘pacified democracies’ (démocraties stabilisées or pacifies) that were designed to prevent antidemocratic actors from taking power via democratic means. In response to the atrocities of the Third Reich, this approach sought to protect fundamental human rights by inscribing them constitutionally and by empowering the judiciary to protect against their violation by the executive and legislative branches. Given the broader moral imperative arising from the experience of Nazi occupation and rule that drove these developments, this new, constrained approach was ‘from the outset a phenomenon that transcended nation-state frontiers’.Footnote 3
The primary supranational instrument of democratic defense in Europe is the European Union (EU), although other organizations like the Council of Europe (CoE) also play a role.Footnote 4 At the domestic level, the EU defends democracy primarily by empowering the law vis-à-vis politics. Most notably, the ‘quiet revolution’ brought about by the development of European law, which takes precedence over domestic legal codes via the doctrine of supremacy, is deployed to protect fundamental rights across all of its member states, as domestic courts are able to apply supranational law directly.Footnote 5 Additionally, as I outline below, the institutions of the EU themselves are not only able to monitor respect for the rule of law and fundamental rights; increasingly, they have also gained the legal competence to sanction member states for backsliding.
In light of these developments, recent scholarship has increasingly recognized the EU as a militant democracy in its own right.Footnote 6 While I agree that Europe has taken on certain militant characteristics, it is my contention that these mechanisms actually defend a substantive form of what I call ‘militant liberalism’, rather than militant democracy as such. As a result, I argue that in its attempts to engage in democratic defense, the EU is actually promoting a historically specific form of democracy that developed in Western Europe after 1945, rather than defending democracy as such.
While the ‘postfascist constitutionalism’ on which the EU was founded is coherent and has many benefits, following the accession of the first postcommunist member states in 2004, this approach no longer enjoys the support of all EU member states (if, indeed, it ever did). This is due to the fact that constitutionalism in CEE is not the product of the rupture or ‘new beginning’ of 1945, which signaled the defeat of fascism, but by the experience of 1989, that is, by the fall of communism. Rather than being ‘characterized by a foundational fear of the people’, the historically informed alternative of ‘postcommunist constitutionalism’ is driven instead by a fear of external domination and a desire to preserve sovereign control over internal affairs.Footnote 7
My basic thesis is that these overlooked differences have important implications for European democratic defense. I am hardly the first to point out that postwar Western Europe was shaped by what Michael A. Wilkinson refers to as a ‘militant economic liberalism’ defined by ‘the construction of limits to the ordinary political-democratic process’. Writing with Alexander Somek, Wilkinson proceeds to point out that since ‘Sovereign powers are designed to interfere with natural liberty’, in practice ‘Liberal constitutional theory, unsurprisingly and often unapologetically, tends to endorse the de facto, de jure and normative demise of sovereignty’. However, while Wilkinson uses ‘militant economic liberalism’ to emphasize liberalism’s authoritarian nature, my use of the term ‘militant liberalism’ refers more specifically to ways that the EU’s political appropriation of militant democracy functions as a way of enforcing the substantive dictates of political liberalism that go well beyond its economic dimensions.Footnote 8
I add to the existing literature on this subject by applying the concept of militant liberalism to the EU’s attempts to engage in supranational democratic defense in a way that takes the lessons of communism seriously. In doing so, my work builds on the existing scholarship on the varieties of constitutionalism in postwar Europe, particularly the work of Signe Rehling Larsen. However, I push the debate about the problems this approach poses forward by focusing on the EU’s adoption of a form of militant liberalism that strains the tolerance that lies at the heart of the EU’s constitutional project. Second, I suggest a normative, political approach that has the potential to overcome the ‘deep contestation over constitutional ideas’ in the Union without relying on the Court of Justice of the European Union (CJEU) to become ‘an arbiter of political theory’ in these debates.Footnote 9
The basic problem this article poses regarding this EU’s militant liberalism can be understood at two different levels. Politically, I focus on the fact that the EU tends to use the militant tools at its disposal primarily to defend a substantive form of liberalism, rather than democracy per se. As Alvaro Oleart and Tom Theuns point out, such an approach ‘hampers the potential efficacy of the EU’s response to democratic backsliding and fails to adequately communicate the EU’s commitment to democracy’. Conceptually, I suggest that these militant tools defend liberalism by design. While I will not be able to fully defend the latter point in the space available to me here, it is already established in the literature that the institutions of the EU conceive of democracy ‘in a largely depoliticized manner, prioritizing a “technocratic legalistic” perspective over a democratic pluralist one’.Footnote 10
The conceptual problem is rooted in the fact that ‘once you have a hammer, every problem starts to look like a nail’. The EU’s tools of democratic defense are primarily rule of law instruments. As a result, it is only natural that the EU as a whole – and in particular the Commission, in whose competence these mechanisms generally lie – seeks to defend against democratic backsliding using a legalistic toolbox.
While the origins of this legalistic approach require further historical and empirical study, Anna Gora and Pieter de Wilde provide a convincing sociological explanation of this development. They point out that since ‘EU Treaties are drawn up by lawyers’ who ‘have been trained to focus on the rule of law’, it is only logical that they ‘also elevate concerns with rule of law beyond other elements of democracy’.Footnote 11 At a deeper, genealogical level, Aliénor Ballangè builds on Marc Crépon’s concept of démophobie to argue that this legalistic tendency is reinforced by the fact that the EU was founded as a community ‘without a people’ by politicians who feared the ignorance of ‘the people’ and thus preferred technocratic, elitist conceptions of democracy to ones that emphasize deliberation and popular sovereignty.Footnote 12
The article is organized as follows. In the next section, I argue that Western European member states and the institutions of the EU itself should not merely seek to impose the ideals of liberal democracy, which were only conceptualized following the victory of democratic capitalism over communism in 1989, onto its ‘new’, postcommunist member states. In addition to the theoretical problems with this approach, it is also counterproductive, as in postcommunist Europe such attempts to enforce the strictures of liberal democracy are often seen as a form of ‘Westsplaining’ by outsiders who do not understand the experience of communism. Combined with Western narratives about how postcommunist Europe has produced ‘no new ideas’ since the revolution of 1989 was a ‘return to what was already known’, the militant defense of liberal democracy plays into the hands of illiberal leaders by driving populist resentment against the West, thus counterproductively strengthening the movements it aims to contain.Footnote 13
The second section reviews how the EU has sought to engage in democratic defense since 1989. I argue that embedding liberalism in ways that constrain the policy space available to democratically elected majorities undermines the very goals it aims to achieve. Instead of allowing illiberal politicians to accuse it of forcibly imposing its ‘liberal way of life’ on populations who do not share these values, I contend that the EU should adopt a more basic, procedural definition of democracy focused on ensuring the ability of citizens to ‘vote the bastards out’. Or, as the preeminent empirical scholar of this concept, Adam Przeworski, puts it, ‘Democracy is a system in which parties lose elections’.Footnote 14 In other words, it is my position that mechanisms of democratic defense should only be applied in cases where human rights are being violated and where the existing regime is interfering in the ability of the population to engage in effective opinion-formation that can be mobilized in subsequent elections.
In the third section, the article takes a normative turn, bringing the preceding analysis into conversation with insights from political theory. Building on Seyla Benhabib’s ‘another cosmopolitanism’, I argue for a more flexible, sociologically informed approach to bridging this internal European divide about the conceptualization of democracy in a way that takes the ‘claims of culture’ seriously.Footnote 15 While she does not give up on the ideals of liberal democracy, Benhabib takes advantage of the fact that external standards can be channeled through local voices to activate the fundamental jurisgenerativity of politics, which allows for the gradual internal development and acceptance of new forms of constitutionalism and different understandings of democracy. While such an approach might lead to some worrying outcomes in the short term, in the longue durée it is more likely to help to overcome the differences between the varieties of constitutionalism present in the EU by making contestation about what democracy entails part of the process of democratic defense.
A caveat is in order before I proceed. My argument is not a defense of illiberal democracy. Although illiberal regimes do not threaten to exterminate their opponents or to do away with elections altogether, as the totalitarian regimes of the twentieth century did, and can be defeated at the ballot box (as the examples of both Poland and Hungary demonstrate), they are still dangerous insofar as they promote a form of democracy ‘without rational, discursive decision making’ that seeks to force the ‘minority to live the life-form of the majority’.Footnote 16 Viewed in this light, my argument shows how liberal democracy can best be defended by respecting the basic disagreements over the constitutional foundations of democracy that exist in the EU at the start of the twenty-first century.
Charting the political origins of liberal democracy
The contemporary literature on backsliding implicitly equates democracy with liberal democracy, understood as ‘a form of government characterized by representation, the rule of law, and the distribution and balance of power’.Footnote 17 On this view, democracy is not merely a procedurally open mechanism for choosing who will wield power via periodic elections. Instead, it involves substantive commitments to ‘legally protect an individual’s negative liberty from the external interference of public power’ via the protection of certain inalienable liberal rights.Footnote 18
The victory of this ideal is visible in the fact that Freedom House, the Varieties of Democracy project (v-dem), as well as other organizations that evaluate the status of democracy, implicitly adopt a liberal understanding of their object of study. In reviewing how democracy is placed ‘under observation (unter Beobachtung)’ by such rating agencies, Philip Manow notes that ironically even v-dem, an institute devoted to studying the ‘Varieties of Democracy’, ultimately ends up endorsing a single (albeit somewhat modular) democratic ideal.Footnote 19 Such an approach is problematic because rather than recognizing that ‘the form of democracy appropriate to a given context will be variable and contestable’, it instead seeks to universally impose a specific iteration thereof.Footnote 20
While the equation of democracy with liberal democracy might appear natural from the perspective of the present, this was not always the case. Although its roots are often traced back to seventeenth-century England or to the American and French Revolutions, the concept of liberal democracy did not become mainstream until the mid-1970s, when it first appeared in textbooks of democratic theory.Footnote 21 Despite the recency of its rise, however, in 1989 Francis Fukuyama felt confident enough to declare it ‘the endpoint of the ideological evolution of mankind’.Footnote 22 In the words of Chantal Mouffe,
What is striking is that the reference to popular sovereignty – which constitutes the backbone of the democratic ideal – has been almost erased in the current definition of liberal democracy. Popular sovereignty is now usually seen as an obsolete idea, often perceived as an obstacle to the implementation of human rights. What we are witnessing, actually, is the triumph of a purely liberal interpretation of the nature of modern democracy ….[in which] democracy is secondary with respect to liberal principles and its objective is limited to their protection.Footnote 23
Like most political ideals, the concept of liberal democracy developed in reaction to the political circumstances. One of the proximate causes was the New Left’s critiques of representative democracy in the 1970s and its calls for a more radical approach based on the democratization of society as a whole.Footnote 24 In response, conservative activists sought to defend the existing system. They did so by arguing for the prioritization of liberal over political rights, the empowerment of independent authorities like central banks and the application of robust constitutional checks and balances, usually in the form of a constitutional court with the power of judicial review.Footnote 25
In addition to this need to respond to leftist critiques of the postwar system, which builds on a deeper conservative skepticism of the people’s ability to rule, the development of liberal democracy in the 1980s was also driven by the desire to reconcile capitalism and democracy. As Wolfgang Streeck points out, at this time ‘the political Right expressed fears that majority rule, inevitably implying the rule of the poor over the rich, would ultimately do away with private property and free markets’. Since ‘capitalism requires a rule-bound economic policy, with protection of markets and property rights’, supporters of liberal democracy emphasized the importance of the rule of law and constitutionally enshrined negative economic rights to guard against political interference by electoral majorities, who might wish to engage in nationalization or expropriation of private property.Footnote 26
The newly developed conception of liberal democracy received a further boost after 1989. Given the lack of economic or political alternatives to the postwar system of democratic capitalism, the West was able to impose its system on the transitional states that comprised the ‘third wave’ of democratization. This included the postcommunist states of CEE, which were forced to adopt western models not only due to their relative poverty and lack of power, but also given their desire to join the EU.Footnote 27 In light of their mutually reinforcing desires to ‘rejoin Europe’ and escape the yoke of Russian (Soviet) domination, seeking to benefit ‘by imitation from the history of Western democracies, and by rejection from the failure of communism’ was a rational response.Footnote 28 However, the fact that they were not enthusiastic about giving up their sovereignty so soon after regaining it is visible in the fact that the first postcommunist constitutions did not allow for the transfer of sovereign powers to external institutions.Footnote 29
The EU, which recognizes only a single postfascist, constrained form of constitutionalism as legitimate, played a crucial role in the institutionalization of liberal democracy in CEE through its use of its most powerful foreign policy tool: the accession process.Footnote 30 In fact, it was only in response to the pending enlargement – and given worries in Western Europe about ‘the depth of the commitment to democracy and human rights in newer and prospective member states in South, Central and Eastern Europe’ – that the issue of democracy and its protection even became salient issues for the EU.Footnote 31 In order to ensure that it had the legal ability to engage in the monitoring and defense of liberal democracy, in 1993 the EU adopted the so-called Copenhagen Criteria, which for the first time formalized the idea that, ‘Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, [and] the existence of a functioning market economy’.Footnote 32
It is notable that these criteria make no explicit mention of elections or the will of the people. In fact, the democratic monitoring functions adopted by the EU do not pay attention to the quality of elections per se or to the responsiveness of the government to its citizens. Instead, they focus on the key, substantive, legal hallmarks of liberal democracy, especially on the quality of the justice system (often couched as ‘rule of law’ in EU parlance).
Reflecting on this history, Tom Theuns points out that there is ‘something puzzling about the sudden urgency with assuring the protection of democratic values and fundamental rights in this period’, given that many of the states involved in the founding of the EU and its first expansions were also transitional democracies.Footnote 33 Notably, the EU felt no need to accommodate the fact that, as a result of communism, these candidate countries had very different experiences and were democratizing in a very different context than in previous phases of enlargement. Instead, the West merely ‘assert[ed] its own virtue and the virtue of its existing members, while simultaneously sending a note of warning to the new and future candidate States to the east’.Footnote 34
In large part, this denial of postcommunist perspectives builds on the mistaken Western idea that 1989 represented a ‘catch-up revolution’ that produced no new political ideas.Footnote 35 This is incorrect. On the contrary, as a result of their experience of communism, the postcommunist states have developed their own constitutional ‘grammar of legitimacy’. In contrast to a ‘legalised form of democracy’ based on a fundamental ‘fear of the people’ and of ‘the unsustainability of nationalism and the nation-state’ present in the West, Larsen notes that ‘post-communist constitutionalism celebrates what is feared most within post-fascist constitutionalism, namely, the ideas of nationalism, the nation-state and national sovereignty’. This has important implications for how these societies understand democracy as well. Rather than being seen as compatible with external limitations, in CEE ‘[d]emocracy means national democracy celebrating the self-determination of the nation finally liberated from imperial oppression’.Footnote 36
These differences are often either not recognized or deliberately delegitimized in the West. Most notably, Jan-Werner Müller explicitly links the development of what he calls ‘liberal postwar democracy’ to the lessons of World War II. Given their growing concerns regarding the ability of states to deploy national law to ‘kill the juridical person’ by taking away basic rights – including citizenship rights – from unwanted individuals and groups, ‘the architects of the Western European postwar order decided to strengthen those institutions which constrain popular as well as parliamentary sovereignty’.Footnote 37 Furthermore, he notes that ‘based on specific lessons that Europeans – rightly or wrongly – drew from the political catastrophes of midcentury … the whole direction of political development in postwar Europe has been towards delegating power to unelected institutions, such as constitutional courts’.Footnote 38
The problem with such arguments, which Müller admits come ‘from an essentially historical perspective’, is not that they are based on collective memory; it is that they universalize the particular perspective of a single set of policy lessons based on a historically specific memory regime. Not only does this underplay the legitimacy of other historical experiences, but it also assumes a teleological conception of progress that is not warranted. After all, support for the postwar model of constrained democracy developed in Western Europe after 1945 appears to be declining as well.
Furthermore, universalizing liberal democracy’s fear of the people is problematic not only because it ignores the fact that ‘democracy is the exemplary case of an essentially contested concept’, but also because it fails to recognize that ‘our ontologies are always historical and thus also always political’.Footnote 39 In this sense, as learning processes mobilized through the pathways of collective remembrance, both of the dominant varieties of constitutionalism in the EU deserve equal consideration and respect given the fact that ‘memories and the policy lessons they generate [and] sustain shape our responses to the present’.Footnote 40
Despite their initial acceptance of the newly consolidated model of liberal democracy after 1989 as part of the price that they had to pay to achieve their goal of distancing themselves from the Russian sphere of influence and ‘rejoining Europe’, broad disillusionment soon set in across much of CEE. While this was driven in part by the economic damage done by the overly rapid adoption of capitalism via the ‘shock doctrine’, which resulted in the selling off of public goods to well-connected tycoons for pennies on the dollar, it also has political roots in the accession process itself. As Claire Moulin-Doos points out,
Having long been under the hegemony of the USSR, the Eastern European countries thought they had liberated themselves. But by the early 1990s … .[this] new freedom turned into the dictate of an economic system without alternatives, of liberal values and constitutionalized institutions. No wonder that it is no longer opposition to the USSR, but opposition to Western Europe that has now become constitutive for their definition of a ‘we’.Footnote 41
After 1989, the newly formed collective memories across this region framed the fight against communism negatively as the domination of the USSR and positively in terms of the right of these small nations to control their domestic affairs by electing their own leaders. Given this retrospective understanding of the local Communist Party as ‘a mechanism for executing the will of the Central Committee, and thus the will of Moscow’, leaders across this region began to push back against the constitutional constraints they had adopted – and against the EU, which sought to enforce them with its mechanisms of democratic surveillance. Emphasizing the fact that their local ‘government is not subjected to command or control from outside’ and rhetorically framing ‘Brussels as the new Moscow’ and the ‘EU as the new USSR’ proved to be an effective electoral strategy that took advantage of the growing sense that constitutional provisions at both the national and European levels (via the fundamental European treaties that govern the EU’s operations) were being used to thwart the will of electoral majorities.Footnote 42
While this goal is achieved via a number of different pathways, due to constraints of space I highlight one particularly important, representative example: the adoption of the constitutional courts empowered with constitutional review. Within the legalized democracies of postfascist constitutionalism, constitutional courts are inherently legitimate, since ‘[a]ll constitutional questions can be addressed as legal questions because the constitution is understood as a legal rather than a political order’.Footnote 43 Previously a relative rarity, even among established Western democracies, including the Netherlands as well as the states of Scandinavia and the United Kingdom, after 1989 they became a crucial marker for the third wave of democratic transitions. This was particularly true in the postcommunist states of CEE, which were encouraged to adopt this form by the EU. As a result, all of these transitional democracies have a constitutional or supreme court with the ability to declare laws passed through parliament as unconstitutional.Footnote 44
In practice, the states of CEE quickly soured on the constitutional courts that they had put in place. For example, following its creation, the ‘remarkabl[y] radical’ Hungarian Constitutional Court struck down laws on a variety of topics ranging from the protection of liberal rights like the death penalty and sexual orientation discrimination to core budgetary questions, such as the government’s austerity program.Footnote 45 Given its own view of itself as an ‘indirect constitution giver (Verfassunsgeber)’, it can hardly be surprising that in 2012 Orbán and his elected parliamentary supermajority engaged in ‘constitutional revenge’ to reduce its power. As Stephen Gardbaum points out, Orbán’s decision ‘to curb the Constitutional Court is a clear – albeit delayed – response to … the most activist [constitutional court] in the world’.Footnote 46
A similar story can be told of Poland, the EU’s other illiberal ‘enfant terrible.’Footnote 47 Like Fidesz, the PiS government also targeted its Constitutional Tribunal. In large part, this desire to court curb was driven by the Tribunal’s interference in key political issues. As in Hungary, the Tribunal’s interference in budgetary processes provided ideological cover for the regime, as Jaroslav Kaczynski argued that ‘reforms [of] the constitutional court … were needed to ensure there are no legal blocks on government policies aimed at creating a fairer economy’.Footnote 48
In light of these considerations, court curbing can be interpreted as a reasonable response to the actions of overly activist constitutional courts that refuse to engage in auto-limitation by paying attention to the views expressed by the sovereign people via the politically responsive branches of government. This dynamic is even more pronounced in the EU, where the European Court of Justice (ECJ) has declared the primacy of European over national law. Since European law is directly applicable, national courts are now obligated to apply it without the need for further concretization by national legislatures. Moreover, when in doubt, national courts are instructed to pose the question of compatibility directly to the ECJ, whose decisions are then considered binding.Footnote 49 As a result, all EU member states are functionally subject to judicial review and control at the supranational level, a process that further alienates the judicial branch – as well as the law more generally – from politics.
In this section, I have historicized and politicized the concept of liberal democracy. While it may seem self-explanatory that ‘only liberal democracies – states characterized by the division of power, by checks and balances, with respect for and practice of all civil liberties – can be termed democracies’, this position only gradually became hegemonic after 1989.Footnote 50 This forms crucial context for understanding the EU as a militant democracy, especially given that the EU did not engage in monitoring or defending democracy before the ratification of the Treaty of Amsterdam (1999) and did not even have formal criteria to ensure that its member states were liberal democracies before the adoption of the Copenhagen Criteria in 1993. As I have shown, historically the adoption of both a (liberal) democracy and a human rights agenda by the EU was a response to the EU’s forthcoming expansion into postcommunist Europe after 1989. Although some of these concerns may have been legitimate, it is clear that ‘others were based on prejudice and ignorance’.Footnote 51
The EU’s militant liberalism
As a result of the backsliding of several EU member states away from the post-1989 ideals of liberal democracy and its own acquisition of a number of mechanisms for democratic defense, there has been a growing debate about whether the Union itself should be classified as a militant democracy. The idea of militant democracy was initially formulated by Karl Löwenstein in a series of articles he wrote after being forced to leave Nazi Germany. Reflecting on how Hitler managed to use democratic means to seize power in the liberal Weimar Republic, his starting point is that when facing existential threats from extremists, democracies should understand themselves to be ‘at war’ and should therefore be ready to ‘fight fire with fire’. In circumstances where the very future of democracy was at stake, Löwenstein held that democrats should ‘no longer restrain from restrictions on democratic fundamentals, for the sake of ultimately preserving these very fundamentals’. While violating core democratic ideals to preserve democracy might appear illegitimate and self-contradictory, he argued that far from being principled, such ‘democratic fundamentalism’ was a form of ‘legalistic self-complacency and suicidal lethargy’ that played into the hands of undemocratic actors.Footnote 52
In the contemporary literature, a militant democracy is usually defined as a regime that uses ‘measures of constitutional entrenchment to defend itself against actors bent on revolutionizing it through legal democratic means, including by denying actors access to state power pre-emptively’. Most often this involves party bans, though sometimes it is also expanded to include other mechanisms, including constitutional unamendability and a guardian of the constitution, usually in the form of a constitutional court that protects the identity of the constitution.Footnote 53 What separates militant democracy from the broader category of democratic defense is that while the former uses explicitly antidemocratic means to fight anti-democrats, the latter includes all measures that help to empower democrats so that they ‘need not stand idly by while others destroy the basis for their existence’.Footnote 54
Over the years, the EU has acquired several mechanisms of democratic defense, some of which also meet the requirements of militant democracy. Notably, Article 2 of the TEU asserts that the EU is ‘founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. Since these values are binding on all member states, Article 260 of the Treaty on the Functioning of the European Union (TFEU) empowers the CJEU to demand rectificatory measures and, if necessary, to sanction any backsliding member states by imposing both lump-sum and daily fines.Footnote 55 While such infringement procedures are a form of democratic defense, they do not qualify as militant, since ‘they target the anti-democratic action through ordinary sanctions rather than targeting the equal civil and political rights of the anti-democratic actor’.Footnote 56
A second measure is based on the Rule of Law Conditionality Regulation 2020/2092, which allows the Commission to suspend or reduce EU funding to a member state in the case of ‘breaches of the principles of the rule of law’. However, the regulation only allows the EC to impose sanctions when the ‘sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way’.Footnote 57 In other words, in practice ‘rule of law conditionality’ merely serves as a sanction on fiscal corruption.Footnote 58 Since this measure also targets concrete actions rather than the equal political participation of anti-democrats, it also qualifies only as a form of democratic defense, not of militant democracy.
The third measure of democratic defense in the EU’s arsenal allows the Authority for European Political Parties and European Political Foundations to deregister political parties and foundations that no longer respect the fundamental values listed in Article 2 of the TEU.Footnote 59 Fabio Wolkenstein points out that while ‘the deregistering of European political parties by no means entails an absolute “exclusion from the democratic game”’, it ‘demonstrates a clear shift from a democratizing logic to a more protective one’. Regulation 1141/2014 can thus be seen as a militant measure, since it upholds the principle that ‘democracy must be protected, even at the cost of sometimes infringing on democratic principles’.Footnote 60
Finally, the ‘nuclear option’ of Article 7 TEU allows for the disenfranchisement of democratically backsliding member states in the European Council.Footnote 61 The sanctions outlined in Article 7(3) target the equal political participation of anti-democratic actors by stripping the government of a member state from voting in the primary EU body designed to directly represent the interests of the member states. Since such exclusions would strip the citizens of that member state from an equal role in coauthoring the European legislation that would later bind them, like Regulation 1141/2014, Article 7 is also a ‘bona fide’ militant measure.Footnote 62
Regardless of whether they count as features of a militant democracy, the basic problem with these mechanisms is that they assume that the democracy to be defended must be a liberal democracy. By enforcing a highly substantive conception of this idea, all of these measures deny what John Dryzek argues is perhaps the only uncontested feature of democracy: ‘the right to exercise agency in contestation concerning what democracy means, and how democracy as understood through this contestation should be implemented’.Footnote 63 Instead of merely ensuring that its member states meet the core ‘lowest common denominator’ criteria of democracy, that is, majority rule, political parties, competitive elections and constitutionalism, the EU’s mechanisms of democratic defense focus instead on the enforcement of core features of liberalism, especially the rule of law and the power of judicial review, thus ‘shielding law from politics and immunizing it against democratic shaping’.Footnote 64 As a result, I argue that it is more accurate to speak of the EU as a representative of militant liberalism, rather than of militant democracy.
On my more procedural account, the EU should only use the tools of democratic defense in cases where member states are undermining the openness of the public sphere by restricting the freedom of speech and assembly or by manipulating the media environment by selling off key channels of popular opinion-formation to regime-friendly tycoons. Unlike the principles of liberal democracy, the need for such an open marketplace for ideas is part of the electoral understanding of democracy that Orbán, Kaczyński and other illiberal populists claim to support. It was also one of the key demands of communist dissidents, who took advantage of their status as writers and cultural figures to rally opposition to the regime with their works.Footnote 65
As it happens, both Hungary and Poland have attempted to undermine the existence of an emancipated public sphere that can nurture genuine civic initiatives alongside free and fair elections. However, despite this fact, Orbán repeatedly sought to bring the media to heel, most notably by rewriting the Hungarian basic law in 2013, restricting funding for civil society organizations and ensuring that key media were held by tycoons friendly to his regime.Footnote 66 Similarly, Kaczyński’s PiS government used state advertising to reward friendly media outlets and to punish critical ones. Before it lost power in 2023, PiS also used public broadcasting to spread its propaganda and vilify opposition politicians.Footnote 67
The EU itself recognizes the importance of media freedom for democracy. However, rather than treat the need for a free and open public sphere as a precondition for an electoral, majoritarian democracy, EU officials reflexively frame this issue in terms of legal institutions by connecting media freedom with the rule of law, that is, as a violation of the principles of liberal democracy, not democracy as such. For instance, Commissioner Věra Jourová, the Vice-President for Values and Transparency from 2019 to 2024, argues that ‘Defending the rule of law requires a resilient democracy, an active civil society and free and independent media’, noting that ‘media are not just an economic sector, but an important pillar of democracy and the rule of law’. As Theuns points out, this impoverished framing ‘reflects the overall conceptualization of democracy by the European Commission’, which is based on a conception ‘that is overly technocratic, legalistic and depoliticized’.Footnote 68
The problem with the EU’s conception of democracy – and that of much of the literature as well – is that it focuses on judicial systems and the rule of law rather than on an open public sphere as a crucial precondition for free and fair elections. This has real consequences for the protection of democracy in Europe. While the EU has developed a host of tools to monitor and assess the extent to which member states respect the dictates of a substantive form of liberalism, ‘none of these mechanisms (and few of the infringement actions) assess the ailing health of the public spheres of backsliding member states, the suppression (through death by regulation, co-option, and intimidation) of critical voices in academia, civil society and the media, or the disadvantages increasingly stacked against opposition actors and parties to compete as equals’.Footnote 69
In this section, I argued that the basic problem with the EU’s attempts to defend democracy – including the ones that meet the threshold of militancy – is not that they are ‘too strong’ or that they do not allow for sufficient ‘disassociation from autocratic member states’, but that they are directed in support of the defense of substantive liberal values, not the defense of democracy as such.Footnote 70 The answer to illiberalism cannot be more liberalism or the expulsion of illiberal states from the EU; instead, as I lay out below, it lies in immanent critique and social, cultural and political engagement with states that hold a more electoral conception of democracy on their own terms.Footnote 71 Such an approach is more likely to succeed for two basic reasons: (1) it recognizes that the victory of populism and illiberalism is ‘a problem of mentality and not of the law’, and (2) because it tackles the underlying causes of illiberalism (not just its symptoms) by empowering local actors who not only have the legitimacy, but are also best positioned to resist democratic decay.Footnote 72
Respecting the democratic claims of culture
It is certainly true that illiberal leaders often use historical memories of communism to entrench their rule. However, it is also clear that the basic claims about the importance of popular sovereignty and the need to maintain control of domestic affairs are salient in CEE because they are the product of a learning process in which ‘Nazism and later Communism were perceived as something imposed by a foreign imperial power’.Footnote 73 In order for the EU to overcome the fundamental contradiction between its postfascist constitutional project and the equally historically entrenched lessons that underpin postcommunist constitutionalism, it will have to find a way to bridge this divide.
In order to do so, I suggest the EU draw on Seyla Benhabib’s cosmopolitan approach based on the distinction between the ‘concrete and generalized other’. Whereas the former category recognizes the humanity of the other ‘as a rational being entitled to the same rights and duties we would want to ascribe to ourselves’, the latter acknowledges their unique individuality as beings ‘with a concrete history, identity, and affective-emotional constitution’.Footnote 74 Mediating these two perspectives requires working through how general moral rules can be applied in specific communities with their own traditions, histories, needs and desires. Benhabib thus seeks to provide the normative foundation necessary to underpin the conviction that ‘reversing democratic decline must ultimately come domestically’ without imposing it from the outside.Footnote 75
Although she eventually develops an account of the legitimacy of transnational law, Benhabib starts from the conviction that ‘universalist norms are mediated with the self-understanding of local communities’. In this sense, she does not believe that a global superstate could or should replace existing political communities. On the contrary, Benhabib argues that in a non-despotic cosmopolitanism, politics will continue to be ‘exercised at local and regional as well as supra- and transnational levels’.Footnote 76 As a result, she endorses ‘a more vertical dispersal of sovereignty through increased integration into multinational, transnational and global organizations and institutions’.Footnote 77
These initial considerations already make clear that integration cannot occur primarily through law (the EU’s primary approach). On the contrary, Benhabib argues that a transnational politics must maintain its discursive and participatory characteristics, so that it can be ‘viewed democratically as the creation of procedures whereby those affected by general social norms and collective political decisions can have a say in their formulation, stipulation, and adoption’. In light of my argument thus far, an advantage of Benhabib’s account is that it recognizes that existing political communities and institutions ‘are not only sites, in the sense of spaces (des lieux), but also places, that is sites of attachment and sites of memory (lieux de mémoires)’.Footnote 78 Recognizing institutions as bearers of historical memory thus allows her to take the differences between the policy lessons generated by different historical experiences – such as those that exist between postfascist and postcommunist constitutionalism – seriously, while also maintaining a belief in the idea that they can be overcome.
Most notably, unlike other discursive cosmopolitans, including Jürgen Habermas, who is also one of the leading supporters of European integration, Benhabib is skeptical of the idea that ‘international law must be “transformed into administratively utilizable power”’ by forcing political communities to subordinate their popular sovereignty directly to international norms.Footnote 79 Instead, she holds, ‘Popular sovereignty and transnational law are not antagonistic; rather, the latter can enhance the former’.Footnote 80 The model she presents for overcoming this usual opposition – an opposition that plays out in the EU’s attempts to protect democracy in the illiberal regimes of CEE – is therefore crucial for my argument.
Rather than simply imposing universal principles down onto lower levels, she instead calls on the international community to ‘formulat[e] core concepts of human rights’ that ‘permit a variety of instantiations as concrete constitutional principles’. This leads to what Benhabib calls ‘a dynamic understanding of interaction between courts, civil society and social movements’ fueled by what she calls ‘democratic iterations’.Footnote 81 This process results in a dialogue between levels – facilitated by transnational social movements – instead of a tug-of-war between international and domestic courts.
Although Benhabib argues that this diversity can be bridged discursively, she notes, ‘The line between matters of justice and those of the good life is not given by some moral dictionary, but evolves as a result of historical and cultural struggles’.Footnote 82 This insight has a number of implications for European democratic defense. To start, it highlights the fact that we should not reduce ‘cosmopolitanism to a bid for imperial domination’ by imposing international laws and norms on existing political communities without their consent. Additionally, the discursive struggle to mediate the generalized with the concrete other guards against the tendency to regard the desires of different communities as uniform. On the contrary, Benhabib emphasizes that we must keep in mind that the aspirations of those who disagree are also ‘constituted through contested practices’, just as our own are.Footnote 83
The normative lesson of this insight is that discursive engagement can spur the concrete other to take up universal moral norms from within. Benhabib argues that deliberation within the domestic public sphere allows communities at the legal level to accept generalized, cosmopolitan rules without the need for external intervention. In the course of these discursively mediated ‘democratic iterations’, Benhabib notes that ‘cosmopolitan norms are suffused with historically specific content’.Footnote 84 This does not occur once for all time, but is repeated in multiple iterations by different individuals at different times in response to different situations. Such processes not only mediate between moral universalism and democratic self-determination; they also infuse abstract ideals ‘with content [by] drawing on experiences that could not have guided those rights in their initial formulation … open[ing] up new worlds and creat[ing] new meanings’.Footnote 85
Benhabib’s discursive cosmopolitanism thus demonstrates how potentially dangerous it is to force abstract legal principles onto local communities without internal support, which allows for translation into local idioms and traditions. Instead of leading to an internal debate and the legitimation of new rights that reaffirm the human dignity of all citizens, the direct imposition of external rules and norms is often counterproductive, as they are seen locally as products of a dictatorial nascent world state. By incorporating global principles into national legislation from the bottom-up, she argues that ‘the content of democratic law is progressively reconstructed along lines that reflect principles of ethical universalism’. Borrowing from Judith Resnik, Benhabib refers to this phenomenon as ‘law’s migration’.Footnote 86
In addition to cosmopolitan law and norms at the local level, she argues that this flexible, context-sensitive approach also fosters the development of democratic culture at the local and national levels. By engaging with global expectations as well as the demands of human rights declarations, treaties and other supranational agreements, local actors within nascent democracies learn ‘to enter the public sphere, to develop new vocabularies of public claim-making, and to anticipate new forms of justice to come in processes of cascading democratic iterations’. Although these local debates about the implementation of global norms are contentious, they have the potential to ‘set in motion processes of mutual challenging, questioning, and learning’.Footnote 87 Most importantly, because they are generated internally, such an approach to mediating the generalized, cosmopolitan and the local, concrete other is less likely to generate resistance and hostility than outside, top-down impositions by international courts, outside interventions and so forth In contrast to existing approaches, her discursive cosmopolitanism thus depends both ‘on nonstate actors as well as on state actors’.Footnote 88
In my view, such an approach has the potential to help overcome the differences between the varieties of constitutionalism that are present in the EU by mediating debates between liberal and illiberal democrats at the local level. This is particularly true given that Gora and de Wilde have found that it is precisely a deterioration in the quality of deliberation that is driving democratic backsliding in Europe in the first decades of the twenty-first century.Footnote 89 Making this point does not mean that Western member states or even the EU would have to abandon positive measures of democracy protection. On the contrary, representatives from Western member states and the Union itself could adopt several different policies ‘supporting free media, pro-democratic civil society actors, the independence of judiciary and critical voices in academia’. However, such a discursive approach to mediating the claims of culture would discourage the EU from ‘impos[ing] wide-ranging sanctions against member state governments veering towards authoritarianism’, for fear of generating backlash and resistance against local actors seeking to change illiberal views from the inside via democratic iterations.Footnote 90
Rather than adopting and defending a highly substantive, liberal and recent understanding of democracy, I argue that the EU should adopt a more basic, procedural definition that is open to a broad range of institutionalizations that preserve the ability of the people to engage in open processes of opinion- and will-formation by not unnecessarily constraining the domain of political contestation ex ante. Rather than adopting and over-constitutionalizing a liberal understanding of democracy, in my view the EU should – again, following Benhabib – adopt a conception thereof that treats
the equal right of persons to take part in the affairs governing their collective existence through the medium of law and the articulation of their opinions and preferences in a political community through the right of freedom of speech and association [a]s the essence of the democratic form of government. Whether this is institutionalized through periodic elections, a multi-party system, proportional representation, mandates and recalls, and the like are questions which do not belong to the idea of democracy itself but to its concretization in specific socio-historical circumstances, and there can be quite an acceptable range of variation here.Footnote 91
Although Benhabib still removes a fairly significant amount of contestation from democracy by ‘downgrad[ing] it to the periphery of “institutionalization”’, this definition is still open and procedural enough to subsume the differing varieties of constitutionalism that exist in the EU after its expansion into postcommunist Europe.Footnote 92
In sum, building on Benhabib, I argue that although the EU should use its mechanisms of democratic protection to defend the openness of the public sphere necessary to drive such local contestation. By contrast, given the considerations I have presented here, it should not use them to defend the more substantive aspects of liberal democracy, such as those focused on the independence of the judiciary. In this sense, I contend that the EU would do better by adopting a more capacious understanding of democracy as a form of representative self-government that, in the words of Rainer Forst, ‘need not be claimed in a “liberal” sense if “liberal” means conformity to current social orders in the West’. Such an understanding is not only open to learning processes that lie outside of the historical experience that drove postfascist constitutionalism in the postwar period; from the perspective of political theory, it also recognizes that until the last decades of the twentieth century, democracy and liberalism were seen as mutually exclusive, not as compatible.Footnote 93
Conclusion
This article has evaluated the EU’s attempts to defend its democracies against the illiberal regimes that initially developed in CEE and are gradually spreading to the West. I share the worries about these regimes voiced by those who have called on the EU to use the militant tools it has at its disposal to combat this backsliding. However, I have shown that such actions are unwise given that the EU is seeking to defend a highly specific, historically recent conception of liberal democracy that overlooks the internal contestation that lies at the heart of the idea of democracy.
While I have not focused on legal debates on constitutionalism, my argument clearly speaks to these ideas. While I am not writing ‘against constitutionalism’ per se, I do share Martin Loughlin’s worry that strict, substantive forms of constitutionalism – particularly liberal constitutionalism – transform the idea of democracy from ‘an expression of the collective will of a people’ (or peoples, in the case of the EU) into ‘an expression of the collective identity of a people … that is permanently inscribed into the foundational principles of the constitution’.Footnote 94 This is particularly problematic when applied to the EU. If, as I have argued, the EU was founded on a liberal constitutionalism rooted in the postfascist rupture of 1945, and if this form of constitutionalism is now being enforced on postcommunist Europe, which does not share this foundational experience with the member states of the West, then the very constitutional tolerance upon which the EU is founded is not eroding, but has already been eroded.Footnote 95
The implications of my argument operate on (at least) two levels. First, tactically speaking, it suggests seeking to externally enforce such a specific action is unlikely to succeed, given that the states of CEE do ‘not share the “grammar of legitimacy” of liberal constitutionalism’ that is preserved in the treaties of the EU.Footnote 96 As a result, attempts to enforce what I have referred to as the EU’s militant liberalism are only likely to generate further backlash against the ‘Westsplaining’ of postfascist elites who do not appreciate the policy lessons that emerge from the experience of communism.
Second, on a deeper level, I argue that the EU should adopt a more procedural, constitutionally tolerant conception of democracy based on the ability of individuals to generate the opinion- and electoral will-formation necessary to ensure changes in power continue to be possible. By empowering local actors and ensuring the vitality of the public sphere as a space of discursive opinion formation that can ultimately filter its way into the formal-institutional will-formation of the state, such an approach might achieve many of the same substantive protections desired by political liberalism without the baggage that comes with taking such a strong position against popular sovereignty.Footnote 97 Additionally, such an approach has the added benefit of recognizing that the rise of illiberal democracy in CEE is not an exception, but is instead a result of the fact that ‘the Member States of the Union … are influenced by radically different forms of constitutionalism and constitutional theories’.Footnote 98 Rather than seeking to repress or militantly eliminate these differences using the legal mechanisms at its disposal, I have argued that the EU should seek to mediate them by drawing inspiration from Benhabib’s discursive cosmopolitanism.
Although a process of democratic iterations that respects the claims of culture would hopefully lead to the adoption of more liberal policies in CEE, the West also needs to be ready to address the democratic deficits that have been observed in a postfascist constitutional regime, whose legalistic foundations remove too many issues from the arena of political contestation. The basic problem is that the main actors who are empowered to ensure adherence to the liberal principles of liberal democracy, most often courts with the power of judicial review, can no longer be checked by actors who are responsible to the democratic desires of the population within the constitutional system. From this perspective, the danger is that liberal democracy becomes liberalism without democracy, since what counts as liberalism is defined so substantively that it is no longer subject to popular control. In this sense, contra some of its defenders, a militant liberal democracy can indeed be authoritarian, just as democracy without liberalism can be.Footnote 99
Acknowledgments
The author would like to thank Benjamin Schupmann, Simone Chambers, James Ingram, Andrew Poe, Chris Kirkwood, Nathan Jordan, Xavier Guillaume, Adrian Rogstad, Caitlin Ryan, Guilherme Marques Pedro, Inanna Hamati-Ataya and two anonymous reviewers from this journal for their comments on my argument. Earlier versions of this article were presented at the ‘Yale-NUS College Political Theory Symposium’ in Singapore in 2025 and at the Federalism & Intergovernmental Relations panel at the Southern Political Science Association annual meeting, as well as at the Centre for International Relations Research colloquium at the University of Groningen in 2026. The author’s gratitude extends to all of the participants at these events. Any remaining errors or infelicities are the author’s alone.
Funding statement
No funding was received.
Competing interests
The author declares no conflict of interest.
Open access
