Constitutional Democracy and Its Capacity for Self-Preservation in a Multipolar World: The Concept of Defensive Democracy in Germany, Ukraine, and the Broader European Experience
After the full-scale invasion, the Constitutional Court of Ukraine characterized Ukraine as a "self-defending democracy." This notion, close to militant democracy, means that despite martial law, restrictions on human rights must remain proportionate and justified to ensure the preservation of statehood. Germany was the first European country to embed the idea of a democracy capable of defending itself against anti-democratic forces. Drawing on the Basic Law of 1949, the German model rests on a commitment to democratic values, defensive capacity, and the promotion of democracy’s protection.
Yet a fundamental concern follows: are these mechanisms enough? What if a party that complies with the constitution gains total control over the state? For Ukraine, the preservation of statehood should not be understood narrowly or instrumentally, and the limits of militant democracy’s toolbox must be carefully studied. As democratic states increasingly rely on national legal frameworks, Ukraine must harmonize its constitutional doctrine with the jurisprudence and constitutional principles of the European Union—while ensuring that defensive democracy does not become a threat itself. The research asks how democracies can defend themselves without undermining fundamental rights—and whether Ukraine’s constitutional framework is ready for this challenge under and after martial law.
