This article critically reconstructs militant democracy’s ‘institutional conservatism’, a theoretical preference for institutions that restrain transformation. It offers two arguments, one historical and one normative. Firstly, it traces a historical development from a substantive to a procedural version of institutional conservatism from the traditional militant democratic thought of Schmitt, Loewenstein and Popper to the contemporary militant democratic theories of Kirshner and Rijpkema. Substantive institutional conservatisms theorize institutions that hinder transformation of the existing order; procedural conservatisms encourage transformation but contain and (...) limit it within the boundaries of existing institutions. Secondly, the article uses resources internal to this historical reconstruction to make the normative case that even the procedural version of institutional conservatism, which characterizes contemporary theories of militant democracy, is problematic from a democratic perspective. The reason for this is that it unjustifiably restricts fundamental democratic change to existing institutions. In conclusion, the article calls for further engagement with modes of democratic defence that do not limit the possibility of radical democratic change but nevertheless enable the protection of democratic institutions against authoritarian regression. (shrink)

Croce & Salvatore have previously enriched the state of the art on Carl Schmitt’s legal thought, appealing to an ‘institutional turn’ in his thinking between 1928 and 1934,1 through which Schmitt d...

The thesis that legal norms are rooted in theology is not new. It is worth considering, however, to what extent not only singular norms, but also models of normativity are the structural representation of theological concepts. In this article, I consider transubstantiation as one of such ideas. I analyse its place in two political theologies published at the same time (in 1922): Carl Schmitt’s Political Theology and James Joyce’s Ulysses. I argue that both thinkers used the idea of transubstantiation as (...) a normative mechanism to deal with anomie that encompassed European societies after the First World War. (shrink)

In the recent literature on militant democracy, two claims are made on the relation between its most famous advocate, Karl Loewenstein, and German jurist Carl Schmitt. The first claim is that, although the latter came to support the Nazi regime, in the late 1920s he provided an early model of militant democracy that looks more robust and elaborated than Loewenstein’s. Schmitt’s constrained democracy is believed to cut deeper into that which militancy is supposed to safeguard. The second claim is that (...) this latter model underlies other versions of militant democracy, including Loewenstein’s. This article argues that the first claim is largely correct while the second is to be rejected. In doing so, it delves deep into Schmitt’s understanding of the materiality of law, that is, the social normativity that he believed the constitution was designed to protect, and casts light on the procedural orientation of Loewenstein’s militant democracy. The conclusion is that both these theories espouse a form of conservatism, though different from one another, and that in different ways both can be detrimental to democracy. (shrink)