Militant Democracy

Undemocratic Political Parties and Beyond

Svetlana Tyulkina

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317664567
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The term 'militant democracy' was coined by Karl Loewenstein in the 1930s. He argued that attempts to establish democracy in the Weimar Republic failed due to the lack of militancy against subversive movements. The concept of militant democracy was introduced to legal scholarship and constitutional practice so as to provide democracy with legal means to defend itself against the range of possible activities of non-democratic political actors.

This book offers a broad comparative look at the legal concept of militant democracy. It analyses both theoretical and substantive aspects of this concept, investigating its practice in a number of countries and on a diverse array of issues. Examining cases in Australia, Turkey, Spain, Germany, Israel, India, the USA, and the Council of Europe, Svetlana Tyulkina maps the historical development of militant democracy in constitutional theory and explores its interaction with various traditional and contemporary notions of democracy. The book analyses the possibilities and pitfalls of the concept of militant democracy when applied to protect democracy when it is under threat of harm or destruction by undemocratic actors, and suggests possible solutions and measures to overcome those dangers.

In its evaluation of the capacity and justification for democracies to apply militant democracy measures, this book will be of great use and interest to students and scholars of public comparative constitutional law, international law, human rights law, and comparative politics.

Part I

Militant democracy

Foundations

1 Militant democracy

Historical and theoretical perspectives

1.1 The origin of the concept: democratic militancy introduced

Paul Joseph Goebbels,¹ Minister of Propaganda in Nazi Germany, once commented that: ‘This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed.’ Leaving aside the initial purpose of this sarcastic statement – to gloat about the ‘great’ achievements of National Socialism in Europe and worldwide – it is nevertheless true. Democracy is a precarious thing. This concern has occupied thinkers since Plato, who warned of the possibility that ‘the trajectory that begins with the delights of democracy ends with the nightmare of tyranny’.² Despite worldwide trends in favour of democracy and the fact that the number of democracies has more than doubled in a generation,³ democracy is still being considered ‘the very thing that can bring democracy to its own knees’.⁴ In other words, democracy has the unfortunate capacity to come undone, to risk its own safety, to take its own life, all while doing what it was intended to do.⁵ This is to a large extent due to the fact that democracy is an inherently liberal and accommodating system of governance premised on a plurality of political ideas and opinions. These characteristics can facilitate the activities of groups and individuals who want to harm or overturn democracy by abusing or misusing democratic institutions and procedures such as free elections, freedom of speech, and freedom of association. Militant democracy is a concept that explains how democracy can protect its structures from such attempts and remain internally coherent.

The archetypal example of how purely procedural democracy and unlimited tolerance towards intolerant political actors can become dangerous is the electoral success of the Nazi Party and collapse of the Weimar Republic. The Weimar Constitution came into effect in August 1919 and became the German nation’s first constitution based on the principle of popular sovereignty. However, only 13 years later it made a way for an anti-democratic and anti-constitutional dictatorship.⁶ The system of proportionate representation created by the Weimar Constitution, in combination with some other serious flaws in constitutional design, civil strife, economic crisis, and resentment of the political left and right, was used effectively by the Nazi Party to obtain power. Within this environment, the Nazi Party managed very quickly to mobilise popular support and to employ available democratic techniques to secure a majority in the parliament. The Nazi Party never had a real majority but their popularity slowly increased with each election, to the point where they allied with the German Nationalist Party to gain the majority of votes in 1933. After Adolph Hitler was appointed as the head of the coalition government, with the help of his supporters who held major ministerial positions, he used his power to suppress all possible political opponents. In 1933 Hitler was powerful enough to convince the members of parliament to vote for the ‘Ermächtigungsgesetz’ (Enabling Act), which temporarily suspended key provisions of the Weimar Constitution and gave power to the government to legislate by decree.⁷ As a result, the very principles of liberal democracy, such as the separation of powers, and guarantees of fundamental rights and liberties, were effectively dismissed, and all power was transferred to the government.⁸ A totalitarian dictatorial regime was established, without any visible violations of the democratic electoral process. ‘The Weimar Republic, with its aspiration for liberal democracy, had given itself up, legally and peacefully, to its most extreme enemy.’⁹

A few words should be said about the Weimar Republic itself. It was widely criticised and characterised as having been ‘defenseless against the rise of totalitarian movement, which availed itself of the democratic process as a Trojan horse in its effort to establish a brutal dictatorship’.¹⁰ Some commentators note that the Weimar Republic, Germany’s first constitutional state based on the principle of popular sovereignty, ‘opened the door to the electoral assumption of power by the National Socialists, or Nazis, despite the party’s clearly antidemocratic means and aims’.¹¹ Moreover, the Weimar Constitution was labelled by scholars as having played ‘a key negative role in German constitutional policy’.¹² The legitimacy of the Weimar Republic itself is not a settled issue from a political or legal perspective. As the Weimar Republic was established after a military defeat, its constitution was considered as illegitimate by a wide sector of German society and there was no consensus on whether it could be called a republic or not.¹³ The imperfections and flaws of the Weimar Republic, along with a lack of legal culture and in the absence of a strong democratic tradition, lead to its collapse with tragic consequences. Indeed, democracy should be an educational and cultural project to the same extent as a constitutional one as ‘there is no democracy if there are no democrats’.¹⁴ Hitler’s project of rising to power owes a lot to the lack of political and moral culture of German society at that time.

Germany’s attempt to establish liberal democracy generated an impressive body of legal and political discourse and some truly remarkable works on the concepts of constitutional democracy, popular sovereignty, and rule of law were written in response to the Weimar ‘experiment’.¹⁵ Many lessons have been drawn from the experience of the Weimar Republic, some of which found expression in the German Basic Law of 1949, which recalled the conditions that led to the Nazi state and resolved that ‘the Federal Republic could never be neutral in the face of its mortal enemies’.¹⁶ On a larger scale, events in the 1930s made many realise that democracy could not survive without an institutionalised means of protection against attacks from its internal enemies. In other words, democracy should not remain silent about attempts to damage it from within by those abusing the privileges, rights, and opportunities granted to them by the regime. Liberal constitutions should not function as suicide pacts, and must be prepared to take self-defensive actions when needed.¹⁷ These ideas, reflected in many writings of legal and political theory, became known as the concept of militant democracy.

Militant democracy was introduced to legal scholarship and constitutional practice in an attempt to address the challenges democracies can face when there are attempts to attack and damage the democratic system from the inside. Karl Loewenstein, a German émigré legal scholar, coined the phrase ‘wehrhafte demokratie’ (militant democracy) in the 1930s. He argued that attempts to establish democracy in the Weimar Republic¹⁸ failed due to the lack of militancy against subversive movements.¹⁹ That is, democratic fundamentalism and legalistic blindness led to a situation wherein democracies were legally bound to allow the emergence and rise of anti-parliamentary and anti-democratic parties, as long as these parties formally conformed to the principle of legality and the free play of public opinion. Loewenstein concluded that democracy destroyed itself through unlimited tolerance towards its enemies, whereby the mechanism of democracy became ‘the Trojan horse by which the enemy enters the city’.²⁰ As he argued further, ‘fire should be fought with fire’,²¹ and the fire could be lit only by a new feature of democracy – militancy.

Loewenstein attributed the specific features of fascism as very effective legal technique (but not ideology) with a significant role in the tragic events of Weimar. According to Loewenstein, fascism had no proper intellectual content and it greatly and successfully employed ‘emotional mobilization’ as opposed to reason.²² Fascist emotional politics relied on techniques of intimidating all ‘others’ – individuals and their groups who did not endorse the movement or the regime.²³ Emotions provided the social and political cohesion necessary for the assumption of power through a legal and formally democratic electoral process. As a result, Loewenstein’s vision of militant democracy was tailored to the events of the interwar period in Germany. However, Loewenstein’s ideas should not be read narrowly. Paradoxically, emotionalism is inherent in democracy and individual rights tend to facilitate emotionalism only further, but democracy, especially in the form of representative government, was designed as a non-emotional arrangement. Emotional politics is not a strategy exclusive to fascism and there are examples of contemporary political movements worldwide that are based on emotionalism, particularly of religious or ethnic origin.²⁴ Therefore, militant democracy, as understood by Loewenstein, is not an abstract or outdated theory but it can and should be ‘perceived as a set of measures directed against radical emotionalism, a technique that may be relevant in all situations and jurisdictions where emotionalism takes over the political processes’.²⁵

Although the phrase ‘militant democracy’ was not introduced until the 1930s, the problem of how to defend democracy against its potential enemies can be traced back to the very beginning of democratic theory its...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Introduction
• Militant democracy Foundations
• Militant democracy Historical and theoretical perspectives
• The concept of militant democracy Problematic or justified?
• The concept of militant democracy in the practice of modern states
• Militant democracy and undemocratic political parties
• Applying militant democracy Testing the concept in practice, setting standards, and identifying major challenges
• Militant democracy and political parties in Europe
• ‘Softer' militant democracy measures Alternative solutions from India and Israel
• Militant democracy as applied to counter-terrorism
• The banning of political parties as a response to terrorism in Spain
• Militant democracy A guide to Australia's counter-terrorism policies?
• Militant democracy and the principle of secularism
• ‘Militant secularism'1in Turkey
• Militant democracy and the principle of secularism1in the practice of the European Court of Human Rights
• Conclusion
• Index