Militant democracy and the European Convention on Human Rights

Abstract:

Almost since its inception, the European Court of Human Rights has been required to consider the question of the rights of anti-democratic actors within liberal democracies. The principal justification for curtailing those rights has been the doctrine of the "militant" democracy in European constitutional thought. While a product of the immediate post-war period, the doctrine still finds judicial support at the Court.

Recent patterns in the practice of democracy and recent cases on this matter invite us to re-examine the basis of the doctrine and its contemporary application. This in turn invites us to speculate on the future direction of litigation in this field. The principal aim of this note is to set out the doctrine and difficulties with it before tracing its application through the jurisprudence of the European Court of Human Rights.