Militant democracy unmoored?

• Department of Law

The Constitutional Law and Politics Working Group hosts a paper presentation by Dr Ming-Sung Kuo (Warwick Law School).

Abstract

As constitutional democracies are faced with authoritarianism and other anti-constitutionalist threats, international law is seeing its own challenge from the increasing influence of authoritarian states. Yet, departing from the recent tendency to model the international legal order after constitutional governance, international lawyers seem to show little interest in the concept of militant democracy, while the latter lies at the centre of current debates surrounding constitutional self-defence. This paper aims to bring to light the current limits of constitutional analogy in international law through an investigation into the discrepancy between constitutional and international lawyers in responding to authoritarian co-optation. A three-pronged argument is submitted. First, in contrast to other appeals for constitutional self-defence, the concept of militant democracy is contentious where it stands in tension with the constitutional ethos. Second, while militant democracy as a constitutional concept presupposes a democratic and normative version of constitutional ordering, the absence of militant democracy on the international plane betrays the nondemocratic, albeit representative, character of the international legal order. Third, attempts to internationalise the concept of militant democracy should be rejected as an international version of militant democracy would only portend an (un)holy alliance of militant democracies and exacerbate the political division in international society. It is suggested that from out of a realignment of international law with the constitutional project of progress, a new constitutional analogy may emerge, giving fresh impetus to the realisation of international law’s universal liberating promise.

About the speaker

Dr Ming-Sung Kuo joined Warwick Law School as an assistant professor in 2010. He holds a JSD and an LLM from Yale University in the United States and receives his primary legal education in Taiwan where he earned his LLB and first LLM from National Taiwan University. Before continuing to pursue his doctoral studies, he served as a law clerk to Justice Dr. Tze-chien Wang at Taiwan's Constitutional Court. After passing the general examination for his PhD in Law candidacy at National Taiwan University, he studied at Yale Law School. Following the completion of his doctoral dissertation at Yale, he held postdoctoral research positions in the United States and Europe, including a Max Weber Fellowship at European University Institute in Florence, Italy and a postdoctoral research fellowship at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. His article ‘Between Choice and Tradition: Rethinking Remedial Grace Periods and Unconstitutionality Management in a Comparative Light’ ((2016) 36 UCLA Pacific Basin Law Jorunal 157) was approvingly cited by the Supreme Court of Canada in R v Albashir ([2021] SCC 48). Dr Kuo is the recipient of the 2020 I·CON Best Paper Prize for his article 'Against Instantaneous Democracy' (2019) 17 (2) International Journal of Constitutional Law (I·CON ) 554.