Governments across Europe increasingly limit fundamental rights to defend themselves against internal threats. Distinguishing between procedural and substantive notions of liberal-democratic self-defense, we evaluate the adoption and removal of legal provisions formally designed to address serious harm to the state, to the democratic process, and to liberal values in the regulation of freedom of association, assembly, and expression across 12 European democracies from 2000 to 2022. We find significant legal change: today’s governments can curtail fundamental rights not only to ensure democratic survival and citizens’ equal political rights, but also to promote liberal values within society at large. Relatedly, they can counter the expression of ‘wrong ideas’ or ‘beliefs’ without individuals and groups engaging in harmful behavior. Taken together, these two developments point to a shift in the nature of self-defense embodied by these systems’ legal architectures, which increasingly align with a broader substantive notion of self-defense. This is important for democracy. Although often legally designed to enhance liberal orders’ resilience, as illiberal leaders and parties take office, pre-existing as well as newly adopted rights limitations increasingly risk being used to silence legitimate voices.
Bolleyer et al. (Mon,) studied this question.