防衛性民主的歐洲經驗

The European Experience of Militant Democracy

如何理解防衛性民主的功能與侷限性，本文就歐洲經驗作了一番考察。歐洲聯盟作為自由民主及法的價值共同體的整合經驗，在體制上設計了防止其會員國「民主倒退」的機制，使得在歐盟法因此具有防衛性民主制度的精神，防衛性民主至此已不僅是內國法層次的探討，亦具有超國家層面觀察的意義。惟防衛性民主的功能界定主要還是歐洲人權法院諸多裁判先例的探討，其以人權保障及捍衛民主多元價值為出發點，長年針對政黨違憲解散制度，為防衛性民主的界限劃下紅線，也因此形塑了民主社會保障人權的重要功能及關聯性。但歐洲人權法院終究是以嗣後個案人權保障機制，無法發揮督促會員國須建立民主自我防衛機制的功能。民主自我防衛中的民主守門員終究無法仰賴外援，而需要認同民主價值的人民與政黨在民主程序中自我賦權，共同守護。

How to understand the functions and limitations of militant democracy, this article makes a survey of European experience. The European Union’s experience in the integration of liberal democracy and the value community of law has systematically designed a mechanism to prevent its member states from “democratic regression”, making EU law therefore possess the spirit of a militant democratic system. The discussion on the level of domestic law also has the significance of super-national observation. However, the definition of the function of militant democracy is mainly based on the discussion of the many cases of the European Court of Human Rights. It takes the protection of human rights and the defense of the plural values of democracy as the starting point, and has targeted the unconstitutional dissolution of political parties for many years, drawing a red line for militant democracy. It has shaped the important function and relevance of protecting human rights in a democratic society. But after all, the European Court of Human Rights is a human rights protection mechanism for personal case, and it cannot play the role of urging member states to establish a democratic self-defense mechanism. After all, the democratic goalkeeper in democratic self-defense cannot rely on foreign aid. People and political parties who agree with democratic values need to empower themselves and protect together in the democratic process.