Fourth Branch and Militant Democracy

Andrej Lang

Full Professor of Public Law at Chemnitz University of Technology.

Introduction

The fourth branch and militant democracy both stand in tension with notions of populist democracy. A militant democracy that actively defends itself against authoritarian threats may resort to anti-democratic measures such as party bans. The fourth branch—defined here as hybrid institutions that do not fit neatly within the classical branches of government, such as ombudspersons, anti-corruption agencies, electoral commissions, information commissioners, human rights commissions, and similar non-majoritarian bodies broadly established to protect liberal democracy—is, by virtue of its independence, also insulated from the will of the electorate. Moreover, as a form of administrative governance through expertise and institutionalized distrust within government, fourth branch institutions squarely contradict the anti-elitist impulse of the current populist backlash and the idea of a unitary executive that vests all executive power in the president or prime minister.

The fourth branch is not typically associated with the classical repertoire of militant democratic tools. However, it occupies an increasingly vital yet precarious role in the defense of liberal democracy, particularly in the face of the new authoritarian playbook that relies on legalistic and procedural mechanisms to undermine democracy from within. In Poland under the former PiS government, for example, the Polish Ombudsperson Adam Bodnar repeatedly criticized democratic backsliding and erosion of the rule of law and press freedom, becoming a “thorn in the side of the government”.

Including the fourth branch as an integral part of militant democracy raises at least two questions that are examined in more depth in this blog post: First, what is the role and limits of fourth branch institutions as defenders against authoritarian tendencies, and second, whether these institutions should be restructured to assume more explicitly a militant democratic role.

Fourth branch institutions as defenders against authoritarian tendencies: Role and Limits

A key institutional feature of fourth branch institutions is their independence. They are created to further a specific public interest, for example, in the case of electoral commissions, ensuring the fairness and transparency of the electoral process. The purpose of this independence is – in the words of Giandomenico Majone – to “enhance the credibility of policy commitments”.  The expectation is that they will protect and promote a specific public interest more credibly and effectively if they are insulated from ordinary politics and ministerial oversight.

De-politicized fourth branch institutions can play and have, in fact, played a meaningful role as defenders against authoritarian tendencies. They can serve this role both before and after an authoritarian takeover. On the one hand, they have a preventive role as early warning systems against democratic erosion. By investigating constitutional violations, or rights infringements before these spiral into full-scale democratic erosion, they fulfil a watchdog function that can counteract authoritarian tendencies before the latter undermine the system. In addition, addressing maladministration, corruption and injustice contributes to strengthening the resilience of democracies by depriving anti-democratic demagogues of the fertile ground they often exploit. Their monitoring functions, investigatory powers, and access to public discourse position them distinctively as democratic watchdogs in deteriorating democracies.

On the other hand, they may also act as meaningful resistance players once authoritarian parties have gained the majority. In functioning liberal democracies, independent fourth branch institutions represent an institutionalized form of distrust toward government within government, a role that becomes even more pronounced in authoritarian contexts. They may contribute to what Rosanvallon calls “counter-democracy”, an institutionalized counter-public sphere in the struggle for interpretive authority in polarized political communities, raising public awareness and providing independent analysis and fact-checking.

A second key institutional feature explains why the fourth branch faces significant limitations in protecting democracy against authoritarianism. Fourth branch institutions usually lack the power to produce or to invalidate law, limiting their capacity to halt measures undermining liberal democracy. Although legally non-binding approaches can be effective and pave the way for persuasion and cooperative solutions, they are likely ineffective against authoritarian threats. Observers of the ombuds model have convincingly argued that cooperative forms of control work best for “situations where the harm or issue to be addressed is relatively minor” and are “less helpful for addressing major systemic problems” or “dealing with issues that have caused significant harm”. In increasingly authoritarian contexts, populist political actors are less likely to respond to persuasion and have strong incentives to ignore non-binding recommendations as truth-seeking or expertise-based policy-making decline.

In addition, the authority of fourth branch institutions hinges critically on their issue-specific expertise and their perceived post-partisan character. But in times of political polarization, persuasion-based authority is fragile because expertise itself is politicized and the possibility of post-partisanship is fundamentally questioned.

Towards a Militant Fourth Branch?

If the fourth branch is arguably too limited to act as a major bulwark against authoritarian tendencies, it raises the question of whether we should change its institutional design to turn it into a more effective defender of constitutional democracy. Fourth branch institutions could, for example, be transformed into quasi-judicial or regulatory bodies with legally binding remedial powers. Yet any move to reconstitute the fourth branch as militant democracy actors raises a normative dilemma: Would expanding their powers undermine their comparative institutional strengths and public trust?

Of course, any institutional reform needs to be assessed based on the specific institution and the specific legal and political context. More generally, it may be said, however, that militant democracy does not mean that every institution must adopt militant functions. Any move toward a “militant fourth branch” must rather remain faithful to liberal constitutionalism’s core principle: institutional differentiation. The defense of liberal democracy requires a differentiated architecture of complementary institutions capable of mutual reinforcement without erasing institutional boundaries. The comparative institutional strength and justification of many fourth branch institutions lie not in coercive authority but in independent expertise and persuasive authority. Rather than transforming every institution into a militant actor, a more promising avenue is better protection against illiberal capture and stronger linkages with other branches of government. For example, appointment and removal safeguards (e.g., qualified majorities, involvement of multiple branches of government, non-renewable terms) make it harder for illiberal governments to fill fourth branch positions with loyalists. Similarly, procedural linkages with courts may be strengthened by providing fourth branch institutions such as ombuds with privileged judicial access. In this way, fourth branch institutions can continue to serve as credible guardians of democracy—not through militancy in form, but through steadfastness in principle.

Andrej Lang is a Full Professor of Public Law at Chemnitz University of Technology.

Suggested Citation: Andrej Lang, ‘The Fourth Branch and Militant Democracy’, IACL-AIDC Blog (24 September 2026) Fourth Branch and Militant Democracy