Militant Democracy

• Author: Amos N. Guiora and Kristine J. Ingle
• Pages: 97-160

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Militant Democracy

Amos N. Guiora and Kristine J. Ingle

This chapter examines the pressing need of the hour through

two distinct perspectives: militant democracy and bystander

democracy. As is explained in the pages that follow, the term

“militant democracy” was coined by Professor Karl Loew-

enstein in the alarming years of the 1930s, prior to the ter-

rible events of the Second World War; “bystander democracy”

reflects our “tweak” of the original term in an effort to cap-

ture the unwillingness to directly confront pressing, and

immediate, threats. The two terms, as we shall come to see,

are at polar opposites: one reflects recognition of threats and

the need, and willingness, to respond; the other suggests a fail-

ure to recognize threats, an unwillingness to confront them,

or a combination of the two. The two concepts—militant and

bystander democracy—are, clearly, at polar ends, reflecting

two distinct approaches to internal threats.

It is, however, insufficient to recognize threats; it is neces-

sary to develop mechanisms, subject to the rule of law, that

enable application of protective measures. The measures that

reflect respect for the rule of law, subject to separation of

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Populist and Islamist Challenges for International Law

98

powers, checks and balances, and judicial review are essen-

tial to protecting democratic values. There is great tension,

and risk, in this undertaking: in an effort to preserve democ-

racy, there is always the possibility of overstepping, resulting

in unwarranted—and unintended—negative ramifications. In

other words, protections have costs; sometimes those costs

are justified to achieve the desired goal; other times, overstep-

ping—in an effort to protect—results in unwarranted minimi-

zation of individual rights.

As history has shown, it is a particular challenge to bal-

ance these competing interests; similarly, as repeatedly dem-

onstrated, it is very difficult to undo the damage of limiting

rights.1 In other words, putting the proverbial genie back in

the bottle poses great challenges to democracies seeking to

protect themselves from internal threats.

The questions we pose in this chapter are at the forefront

of the challenges facing contemporary democracies. This is,

then, a two-step process: Does the nation-state recognize an

internal threat and if yes, what measures does it take to pro-

tect against that threat; if the nation-state fails to recognize a

threat, what are the consequences of that failure, deliberate or

otherwise?

Comparative Approach: A Brief Word

To best illustrate our analysis, this chapter is comparative in

that we examine these questions through the contemporary lens

of three different countries. In doing so, we seek to show how

the three countries—Israel, Germany, and the Netherlands—

resolve distinct domestic threats. In undertaking a compara-

tive analysis, we do not aim at “equal billing” among the three

1. T hese rights are establish ed by domestic law, intern ational law, and natu ral

law.

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Militant Democracy 99

examined countries. That is not our aim. Rather, we hope that

by providing examples from the three countries, we can suffi-

ciently, and compellingly, demonstrate the profound dissonance

between militant and bystander democracy.

Threat: A Brief Word

Recognizing the threat is an important step; the more diffi-

cult inquiry is how does democracy protect itself and what are

the limits of such efforts? While protection is essential, demo-

cratic values and principles impose limits and restraints. Oth-

erwise, democracy is at risk. In the same breath, democracy

is at risk if protection measures are not considered, much less

applied. Balance and limits are critical concepts; the thin line

between protection of democracy and tolerance of challenges

is tenuous.

The failure to recognize—and respond—to an internal

threat reflects bystander democracy. However, threats are

nuanced; there are real and perceived threats. Mistaking one

for the other can result in unjustified minimizations of indi-

vidual rights, liberties, and privileges. Conversely, failing to

recognize a direct threat can endanger individuals and the

state alike.

A perceived threat may, ultimately, prove itself to be real;

however, some perceived threats are just that, perceived. Act-

ing on perceived threats is fraught with danger; there is the

chance of misreading actions and words that may result in

unwarranted minimization of individual rights with recourse

limited, if not unavailable.

On the other hand, waiting for a perceived threat to

actualize is also risky. By the time the risk is direct—rather

than perceived—the opportunity to mitigate its impact may

be significantly minimized, and the proverbial “point of no

return” may have been crossed. That conundrum highlights

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