– Angelo Jr Golia, Assistant Professor at the LUISS School of Law and a Senior Research Affiliate at the Max Planck Institute for Comparative Public Law and International Law
This is the third post of a Symposium on Militant Constitutionalism, comprised of 10 pieces. You can access the introductory post here.
Militant scholarship and scholactivism: from militant constitutionalism to militant constitutional concepts?
In the words of Caruso and Stambulski, this symposium ‘seeks to analyse the idea and practice of militant constitutionalism from both, descriptive and normative perspectives.’ They ask us to reflect on “militant constitutionalism” as a specific set of legal and institutional strategies aimed at confronting enemies of the rule of law, fundamental rights, democracy, and, more generally, all the foundational tenets of liberal-democratic constitutionalism. The defining features of militant constitutionalism are individuated in three elements: supranational dimension, centrality of courts, and geopolitical pressures on democracy. In this blogpost, rather than focusing on the defining patterns of militant constitutionalism and whether it is a valuable analytical/normative tool, I try to approach the topic from a slightly different angle, by moving one step upstream and looking at constitutional scholarship and legal concepts themselves.
Discussions about the possibilities and value of strategic, broadly speaking militant uses of (constitutional) law are almost as old as legal theory itself and they periodically re-emerge in different ideological and institutional forms. Over the last decade, (international) constitutional scholars have increasingly and more explicitly embraced what is sometimes called ‘militant scholarship’ or ‘scholactivism’ (see, e.g., this ICON issue). Constitutional scholars openly defend the rule of law, intervene in political debates, sign collective statements, and frame their work as part of a broader struggle against (what is perceived as) the democratic backsliding taking place all around the world. This development is understandable and, in many contexts, normatively compelling. Yet it also raises an important methodological question: if constitutional scholarship becomes openly militant, how should we understand the role of legal concepts in this process? In this regard, it seems to me that, as legal argumentation unavoidably carries some level of conceptualisation – even in contexts where it does not take the shape of German-style Rechtsdogmatik – it is not possible to understand “militant constitutionalism” without identifying the legal concepts that activate it. I would call them “militant constitutional concepts.”
The literature on militant democracy has focused on institutions, emergency powers, party bans, judicial review, constitutional amendments, and doctrines of constitutional identity (see, e.g., here). However, while operating through norms, actors, and processes, militant constitutionalism needs legal reasoning and legal reasoning, in turn, operates through concepts. Highlighting this point is even more important, as, compared to ‘militant democracy’, its distinct features lie – following again Caruso and Stambulski – in the relocation of the defence of democracy to the courtroom, in its operation across multiple levels of governance, and in the strong component of social mobilisation. Legal concepts structure what lawyers and other actors (want to) see, how courts argue and adjudicate disputes, how processes are shaped and result inclusive/exclusive, and how both institutions and social movements justify action. Legal concepts contribute to shaping the communicative possibilities associated to the specific normative language that we call “law”, the worldviews coming with them, the legal and institutional imagination emerging from them. Ultimately, they define the toolbox through which militancy becomes legally operational, both within institutions and within processes of (transnational) social mobilisation. Yet, despite the growing literature, we still lack a conceptual framework for identifying the legal concepts that make militant constitutionalism possible. In this short piece, therefore, my aim is not to take a stand on “militant constitutionalism” itself, as a first-order question. Instead, I would like to address a second-order question, that is, what are the features of the concepts enabling militant constitutionalism.
Defining militant constitutional concepts
A premise that might sound obvious: all legal concepts are intrinsically normative. Legal dogmatics is never neutral in a purely descriptive sense. As they channel, orient, and con-form (legal) meaning, legal concepts structure institutional power, allocate authority – and, more generally, symbolic capital –, define legitimate and illegitimate behaviour, (de)stabilise sociolegal expectations, and embody – at least implicitly – theories of the state and society. In other words, normativity is not an exception in legal conceptualisation but rather its natural condition. At the same time, conceptualisation cannot be disentangled from (general) theorisation. Theorising in law always implies, at some level, conceptualising, and any legal concept is inevitably normative. Concepts are unavoidable in law, but they must be treated as provisional, contestable, and open to revision in light of their social and distributive effects. Stressing this is important because debates about militant constitutionalism often oppose supposedly neutral legal analysis to “militant scholarship”. But this opposition is misleading. If all legal concepts are at some level normative, the real question is not whether scholarship is normative but which legal concepts enable militancy, and how.
To answer this question, we need a narrower category. This brings me to militant constitutional concepts. To be sure, I do not mean to introduce a new category of concepts in general legal theory, replacing those already existing – if anything, to avoid the wrath of exponents of analytical jurisprudence who, as is known, hold the monopoly on the matter. My goal is more modest: to outline some defining features of the legal concepts enabling or channelling (constitutional) militancy. In this respect, the category ‘militant constitutional concept’ remains strictly linked and instrumental to the ‘militant constitutionalism’ discourse and is meant to better frame/understand it.
Defining militant constitutional concepts
I propose a definition which, in my intention, is open to be (empirically?) tested. Militant constitutional concepts are a subset of legal concepts that, functionally, activate mechanisms of militant constitutionalism. Structurally, a legal concept qualifies as a militant concept when it combines four elements.
First, militant constitutional concepts belong to legal dogmatics but act as entry points for socio-legal elements and dynamics. They are fully part of doctrinal legal reasoning. Courts use them, scholars analyse them, and they may appear in textbooks. At the same time, they function as bridges between law and society. In that sense, they share some features of the liminal and sometimes overlapping category of general/open clauses, as they allow moral arguments, political evaluations, social expectations, and extra-legal values to enter legal reasoning without appearing as external to law. They are, in other words, gateways through which social conflict becomes legal doctrine.
Second, militant constitutional concepts can be shaped, interpreted, and enforced in both authoritarian and anti-authoritarian ways.Militant concepts are not inherently democratic, liberal or authoritarian.They are structurally ambivalent, as they can be used to protect constitutional democracy or to justify authoritarian consolidation. Their normative direction depends on institutional context, political culture, and judicial practice. This ambivalence explains why the same legal concept can appear in both liberal and illiberal or authoritarian legal systems.
Third, militant constitutional concepts are “constitutional” not only ratione materiae but also ratione normae. They are framed and perceived as belonging to a normative layer that is not fully available to ordinary political majorities. Their existence, activation, and doctrinal development are not reducible to the logic of contingent majority rule governing ordinary legislation. Rather, they operate within a higher normative register, typically – but not necessarily – associated with constitutional rigidity, judicial guardianship, or entrenched principles. In this sense, their militancy is reinforced by their relative insulation from direct democratic reversibility, which enhances their capacity to stabilise and defend the constitutional order. Paradoxically, the fact that sometimes they are not explicitly mentioned in any formally enacted legal text reinforces rather than weakening this feature.
Fourth, militant constitutional concepts aim at contributing to the institutional consolidation of the state and, more generally, of the political structures speaking “in the name of” the constitution.Regardless of their democratic or authoritarian use, militant concepts tend to expand institutional capacity, strengthen state coordination, legitimise intervention, and stabilise power structures. They help transform sociopolitical conflicts into legal problems managed by institutions. This is what makes them militant: they are tools through which the legal order defends and consolidates itself. In this sense, they possess a strong performative capacity, a sort of ‘added value’ of performativity. Importantly, whether this happens in a situation of emergency or not is a different matter. Militant constitutional concepts can be operationalised, “live”, and perform their militancy-enabling functions both in the everyday life of a legal-political order and in situations of (or framed as) emergency/crisis.
Examples of militant constitutional concepts
To substantiate this definition, I would like to briefly point at some non-exhaustive examples. The aim is not to produce a closed list but to show how the definition applies.
‘Horizontal effect’. The doctrine of the ‘horizontal effect’ of fundamental rights – in its different forms and names – extends constitutional rights traditionally framed for State-individual relationships into private relationships. It is doctrinally legal as it is part of constitutional dogmatics. At the same time, by referring to situations of de facto public authority or social subalternity, it introduces social and moral expectations into private law norms, judicial reasoning, and institutional enforcement. It can be used to protect vulnerable individuals, empower different sociolegal actors, fight discrimination and hate speech, or reshape markets. Its constitutional nature lies in the fact that it derives from, and is justified by, the supremacy of constitutional rights over ordinary private law. As such, its scope and operation are not freely reversible by legislative majorities, but anchored in higher-ranking norms and judicial interpretation. At the same time, it expands the reach of public law deep into society and strengthens the role of courts as regulators of social relations. As it normally operationalised through judicial rulings, it contributes to the institutional expansion and consolidation of constitutional adjudication.
Abuse of rights. The concept of abuse of rights allows institutions to deny legal protection when rights are used for purposes contrary to their spirit.This concept is deeply embedded in legal doctrine and constitutional and human rights instruments.Yet it is also inherently open-ended and value-laden.It can be used to defend democracy against anti-democratic actors or to restrict dissent and opposition.Historically, it has appeared in both democratic and authoritarian contexts. The constitutional character of the concept emerges from its function as an immanent limit within the legal order, often grounded in constitutional or quasi-constitutional principles. This positioning places its activation beyond the full discretion of ordinary majorities, entrusting courts with its development and enforcement. Finally, its key function is to enable the legal order to police its own boundaries.
Loyal cooperation. The concept of loyal cooperation, especially in multilevel constitutional systems, is another example. It is doctrinal and technical. Yet it embeds expectations of political loyalty and institutional discipline. It can foster integration, coordination, and mutual trust. But it can also justify pressure, centralisation, and the disciplining of dissenting institutions. Its binding force does not depend on ordinary political will, but on its recognition as a higher-order norm guiding institutional behaviour and limiting unilateral deviation from the needs of unitary and coherent political action. Again, the concept contributes to the consolidation of institutional structures.
Digital sovereignty. Although it mostly appears in policy declarations and soft law instruments, the increasingly invoked concept of digital sovereignty operates within legal scholarship while simultaneously acting as a gateway for geopolitical, economic, and security considerations to enter legal discourse. At the same time, it is structurally ambivalent: it can be mobilised to protect fundamental rights and democratic autonomy in the digital sphere, but also to justify surveillance, market restrictions, or authoritarian control over information flows. It also contributes to the consolidation of institutional power by expanding states and EU capacity to regulate digital infrastructures and by legitimising intervention “in the name of” constitutional values. Finally, it is increasingly framed as a constitutional-level concern – linked to sovereignty, security, and democratic self-determination – thereby partially insulating it from ordinary political contestation and reinforcing its militancy-enabling function.
Why this matters: some concluding remarks
To conclude, it is worth addressing the “now what?” question. In my opinion, advancing a definition of militant constitutional concept serves two main functions. First, alerting institutions and civil society. Identifying militant constitutional concepts allows us to detect when potentially dangerous instruments are being activated. Because militant concepts are doctrinally technical, and often presented as purely legal tools, their political significance may go unnoticed. A clearer conceptual framework helps courts, scholars, the press, civil society, and different social groups recognise when the legal system is entering or might be entering a “militant” mode. Second, disentangling militancy from democratic quality. Debates on militant democracy often collapse two different “big” questions concerning the meaning and scope of democracy and the instruments that the legal order uses to defend itself.
My proposal is to separate these questions. Militant constitutional concepts are not meant to define the quality of a democracy or a constitutional order per se. They are instruments of militancy in the broadest sense. In that sense, it is possible to conceive of the concepts underlying militant constitutionalism as having a markedly conflictual nature. Whether an authentically constitutional order can actually be non-democratic – which I would exclude – is a different issue. This distinction allows to analyse militant constitutionalism without turning every debate into a dispute about the “true” meaning of democracy, populism, liberalism, etc. It shifts the focus from normative labelling to conceptual analysis. Militant constitutionalism – like any other form of “-ism” – does not operate only through courts, governments, or constitutional amendments but also through legal concepts. By proposing a definition of militant constitutional concepts, I have tried to show that, while all legal concepts are normative, some legal concepts are better suited to activate militancy. Therefore, identifying them is both analytically and normatively important. Ultimately, my aim is not to support or defend the “militant constitutionalism” framework. In this regard, one should not overestimate the “selecting power” of academic scholars, whether they openly act as “scholactivists” or not: the factors enabling conceptual and ideological frameworks to “succeed” and to be stabilised in legal-political discourse go much beyond the issue of whether scholars like them or not, find them convincing or not, support them or not. Instead, the aim is to better understand militant constitutionalism conceptual infrastructure: before the constitutional order defends itself through institutions, it first communicatively “learns” how to defend itself through concepts.
Suggested citation: Angelo Jr Golia, Symposium on Militant Constitutionalism Part III: Militant Constitutional Concepts, Int’l J. Const. L. Blog, June 12, 2026, at https://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-iii-militant-constitutional-concepts/