This article critically examines Busk's Democracy in Spite of the Demos, which critiques the “categorical imperative of democracy.” Although Busk effectively challenges the commitment to value-neutral democratic procedures as the foundation for legitimate law, his alternative, curtailing powerful interests ability to manipulate voters using “socially necessary delusions,” risks establishing elite rule. This article instead proposes basic liberal rights as the normative foundation for legitimate public order and militant democracy as its most effective institutional safeguard, arguing that this combination better realizes (...) human emancipation. (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)