Militant democracy, legal pluralism, and the paradox of self-determination
* Professor of law, University of Toronto. I am indebted to Jarmila Lajcakova, Andrea Napegyi, Zoran Oklopcic, Umut Özsu, and especially Courtney Jung, for their insightful comments on a previous draft. I am also indebted to the participants of "Emerging Legal Issues for Islam in Europe," a conference held at Central European University, June 3–4, 2005, for their comments. Funding from the Fulbright New Century Scholar Program and the Social Sciences and Humanities Research Council of Canada is gratefully acknowledged. Email: p.macklem{at}utoronto.ca
The legality of militant democracy—Can a constitutional democracy act legally in an antidemocratic manner to combat threats to its existence?—is far from clear. The legality of legal pluralism—the extent to which international law authorizes political agendas that seek to implement various forms of autonomy—is also unclear. The elusive legality of these developments creates conditions for the abuse of power both by states defending democracy and by religious, cultural, and national communities seeking a measure of independence. Marked by a shared normative commitment to the paradox of self-determination, the relationship between legal pluralism and militant democracy provides insight into the legality of both developments in ways that might be overlooked by viewing each in isolation. This is revealed dramatically by the recent decision of the European Court of Human Rights in Refah Partisi v. Turkey, in which the Court upheld the banning of a political party that was advocating a form of legal pluralism that would introduce elements of Islamic law into the Turkish legal order. Refah establishes a legal site in which contestations over the constitutional boundaries of legal pluralism and militant democracy will take place in the future.