PRAVNI ZAPISI • Year II • No. 1 • pp. 32-52
MILITANT DEMOCRACY AND ITS DEMOCRATIC DILEMMA
Dr phil. Volić-Hellbusch Jelena
Viši predavač, Pravni fakultet Univerziteta Union u Beogradu
Docentkinja, Univerzitet u Kragujevcu
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Pravni zapisi, No. 1/2011, pp. 32-52
Original Scientific Article
KEY WORDS
combat democracy; Basic Law; Weimar Republic; constitution; Loewenstein; Mannheim
ABSTRACT
It is a well known fact that the present Constitution of the Federal Republic of Germany, the Basic Law, is a result of historical experience of the Weimar Republic. Weimar is a riddle, not only regarding the German history, but globally – and the riddle lies in the question: Under what destabilizing circumstances can democratic constitutions and the entire legal system fail. Comparative history of democratic constitutions may give a partial answer to the question: trust of the majority, which is a prerequisite for any democratic constitutional system, can be threatened by the coercion of minority, disrespect of the majority’s will, or by shameless self-will of the political class. The German Basic Law incorporates some unalterable constitutional principles. The authors of the Constitution opted for the concept of “Militant democracy”, rather than the positivistic and formalistic notion of democracy. The subject of fierce academic and primarily political discussions is a question of meaning and foundation of the “Militant democracy” concept: whether the militant spirit of a democratic order represents its system of values, intentions, or it also implies the means by which the “fighting spirit” manifests directly and what these means are. The discussion on the meaning of “Militant democracy” term has particularly arisen in the framework of general discussion about possibilities and ways to protect the state from terrorist attacks, following September 11th, which include significant restrictions on human rights and freedoms. Interest in the concept of “Militant democracy” in Serbia has been growing from the moment the discussion on necessity and propriety of the prohibition of extremist political associations and parties was initiated. There is a perennial question on contradiction of the constitution protection by means of sacrificing or restriction of fundamental constitutional principles. “Militant democracy” implies the following principle: the opponents of the basic principles of freedom and democracy should not be able to work within the constitutional possibilities on the destruction of constitutional system, but experience civil protection and defense mechanisms in case they exceed the strictly defined limits of constitutional freedoms. “Militant democracy” in fact illustrates the phenomenon of preventive democracy, where the concept of such protection of democracy is based on democratic theory and sociological and philosophical works of Karl Loewenstein and Karl Mannheim.