What’s Wrong with Militant Democracy?

Abstract

This article proposes a critique of “militant democracy,” defined as the legal restriction of democratic freedoms for the purpose of insulating democratic regimes from the threat of being overthrown by legal means. The argument we advance is that this conceptual framework is inadequate for addressing the problem it is meant to solve, since restricting the freedom of its supposed “enemies” may make democracy more prone to authoritarian abuse, rather than less, in the long run. To demonstrate this, we first turn to the theory of militant democracy, both in its earliest articulations by Karl Loewenstein and Carl Schmitt, and in the more recent theoretical literature on this topic. In the second part, we show that the inherent arbitrariness of militant democracy has been reflected in a concrete expansion in the range of targets to which the logic of militant democracy has been applied: from fascism during the inter-war years, to communism during the Cold War, up to several forms of religious practice in the present day.

Keywords

militant democracy constitutionalism proceduralism authoritarianism Carl Schmitt

Those who are for democracy cannot allow themselves to be caught in the dangerous contradiction of using the means of dictatorship to defend democracy. One must remain faithful to one’s flag even when the ship is sinking; and in the abyss one can only carry the hope that the ideal of freedom is indestructible, and the more deeply it sinks the more it will one day return to life with greater passion.

Hans Kelsen (1932)

Introduction

The notion of “militant democracy”—understood as the legal restriction of certain democratic freedoms for the purpose of protecting democratic regimes from the threat of being subverted by legal means—has recently been attracting an increasing measure of attention by political theorists (Capoccia, 2013; Kirshner, 2014; Macklem, 2006; Müller, 2012; Niesen, 2002; Rummens, 2010; Sajò, 2004; Thiel, 2009). Until relatively recently, it was still common to begin discussions of this topic lamenting that it hadn’t yet been subjected to sufficient theoretic elaboration (Issacharoff, 2007; Nolte and Fox, 1995; Pedahzur, 2004). However, the sheer number of recent texts making this claim suggests that the topic of militant democracy may finally be in the process of acquiring a place of its own within the framework of contemporary democratic theory.

There are certainly good reasons for this. First, the notion of militant democracy touches upon a central issue at the heart of democratic theory: the possibility that a democratic regime might effectively overthrow itself, if the demos as a whole, or a sufficiently large part of it, were to turn against the democratic principle itself. This is sometimes referred to as the “paradox of democracy,” and in one form or another it has been at the center of democratic theory at least since the second half of the twentieth century (Lefort, 1989; Müller, 2012; Popper, 1945; Talmon, 1952).

In addition, however, the notion of militant democracy has recently acquired a renewed prominence in light of the way in which many existing democratic regimes have chosen to respond to the specific threat that is supposed to have emerged in the aftermath of the September 11 terrorist attacks in the United States and several other later incidents in Europe. In particular, the notion of militant democracy has recently been used to justify several restrictions on both freedom of association and religious practice, taken to represent threats for the stability and viability of democratic regimes (Avineri, 2004; Macklem, 2006, 2012; Rosenblum, 2008; Sajò, 2006).

Thus, while initially understood primarily as a means for banning political parties whose commitment to democratic values was judged either insufficient or unreliable, militant democracy has recently expanded to cover a broader range of political actors judged dangerous for existing democratic regimes.

The contribution this article makes to the literature on this topic consists in introducing a counter-weight to most of the existing studies. Until now, most discussions of militant democracy have consisted in attempts to justify it on the basis of the implicit assumption that militant democracy is a justiciable principle capable of being applied in a non-arbitrary way (on this point, see, in particular, Sajò, 2012; Thiel, 2009; Kirshner, 2014). We contest this claim, arguing that there is an irreducible element of arbitrariness in whichever way the decision is taken as to what constitutes an “enemy” of democracy. The reason this arbitrariness is inherent is that the decision over who to exclude from the possibility of participating in the democratic game is ultimately a decision over the boundaries of the political community itself, which cannot coherently be taken by democratic procedures and therefore cannot be subsumed under any prior norm. This implies that militant democracy fails on its own terms, as a legal and democratic means of excluding enemies of democracy.

This is a serious matter of political concern. It implies that provisions of militant democracy may have the opposite effect than the one intended: instead of protecting democracy against its supposed enemies, they may provide a means for those empowered to make the relevant decisions to arbitrarily exclude an indeterminately expansive range of political competitors from the democratic game, thereby restricting the democratic nature of the regime and therefore effectively “doing the work of the enemies of democracy for them” (Kirshner, 2014).

To demonstrate this, this article is divided into two parts. In the first, we examine the theory of militant democracy, both in its earliest articulations by authors such as Karl Loewenstein and Carl Schmitt, and in the more recent theoretical literature on this topic, showing that all attempts at providing a juridically operational criterion of militant democracy have failed, because the decision as to what constitutes an enemy of democracy touches upon the boundaries of the political entity itself and therefore cannot be subsumed under any prior democratic norm. In the second part, we show that this inherent arbitrariness of militant democracy is not merely an abstract theoretical problem but has been reflected in a concrete expansion in the range of targets to which the logic of militant democracy has been applied in Europe: from original calls to ban fascist parties during the inter-war years, to its use during the Cold War to ban communist parties, up to its current employment to justify restrictions on religious practice taken to represent threats for the stability and viability of democratic regimes.¹ This expansion in the range of targets of militant democracy corresponds to a restriction of the democratic nature of the regimes in question, and therefore confirms the point that provisions of militant democracy may have the opposite effect than the one intended.

The conclusion we draw from this analysis is that provisions of militant democracy are not an appropriate way of dealing with the so-called “paradox of democracy.” For this reason, in closing, we indicate two potential alternatives for dealing with the same problem, as possible avenues for further reflection: the first draws on the distinction between militant democracy and constitutional or criminal law in general to suggest that democratic regimes can consistently ban specific actions—but not actors; the second suggests that striving to include presumptive enemies of democracy within the framework of democratic procedures (instead of excluding them) may potentially have a moderating effect on their goals, by giving them a stake in the democratic order, instead of a further reason for opposing it.

To be sure, neither of these alternatives to militant democracy can guarantee that democracy will be made absolutely safe from the risk of being overthrown from within. However, the idea of an absolutely secure or risk-free democracy may itself be a misconception, inasmuch as it seems to involve the opposite paradox from the one we have been considering—namely that of imposing democracy, potentially even against a people’s will.

The Inherent Arbitrariness of Militant Democracy

The Notion of a Constitutional Core and the Boundaries of the Political Entity

The author generally credited with having coined the term “militant democracy” is the German émigré scholar Karl Loewenstein, who introduced it in a series of two articles published in the American Political Science Review in 1937, as an explicit reaction to the rise to power and consolidation of Hitler’s regime in Germany (see Loewenstein, 1937). As several commentators have already pointed out, however, the conceptual framework that underscores this early theorization of militant democracy is not very persuasive, inasmuch as it depends on a distinction between “constitutional government” and “emotionalism” that cannot provide a principled, non-arbitrary criterion to distinguish between the kinds of actors that can and cannot be tolerated in a democratic framework (see Bulla, 1973; Ridder, 1957; Sajò, 2006).

Loewenstein defines constitutional government in terms of a conception of the rule of law that is supposed to guarantee “rationality and calculability of administration” (p. 418). Conversely, emotionalism is defined as “the substitution for the rule of law of a legalized opportunism in the guise of raison d’état,” through a variety of means, among which Loewenstein mentions, in particular, “high-pitched nationalist enthusiasm” and “permanent psychic coercion, at times amounting to intimidation and terrorization scientifically applied” (p. 419). Even on its own terms, however, this theory doesn’t seem to take into account that all political agents in electoral regimes make use of emotional cues and strategies. The category of “emotionalism” doesn’t therefore seem capable of providing a principled basis for distinguishing between “friends” and “enemies” of democracy.²

In light of these weaknesses in Loewenstein’s account, a more solid intellectual foundation for the strategy of restricting democratic freedoms for the purpose of defending democracy against its supposed enemies may be found in the work of another highly prominent German legal and political theorist, who actually made an analogous argument before Loewenstein, even though he never used the term militant democracy itself: Carl Schmitt. Given his infamous decision to join the Nazi party in 1933, Schmitt may seem an unlikely exponent of the theory of militant democracy. Yet, his most important writings from the Weimar period constitute an attempt to marshal the resources of the constitutional state to defend it from its enemies, internal and external. As such, Schmitt argued explicitly for banning both Hitler’s NSDAP (Nazi Party) and the Communist Party in 1932 (Schmitt, 2004: 48–49). He did so on the basis of an innovative and extremely influential constitutional theory that provides greater theoretical substance to the idea of militant democracy than Lowenstein’s account. Despite this, we argue that Schmitt’s version of the theory of militant democracy fails to overcome the challenge of providing a principled, non-arbitrary way of distinguishing between what can and cannot be tolerated within a democratic framework, and indeed ultimately reveals the impossibility of doing so.

The key notion on which Schmitt’s theory of militant democracy is predicated is that of a “constitutional core,” which Schmitt (2008) had already defined in his 1928 treatise on Constitutional Theory as the “political content” of the original decision that “determines the entirety of the political unity in regard to its peculiar form of existence through a single instance of decision” (pp. 77–78). Beyond this substantive constitutional core, Schmitt (2008) had also maintained in the same text that the “positive form” of the constitution is embodied in a number of specific “constitutional laws,” the task of which is to determine the “formal procedures” through which the basic political decision instituting the collectivity is to be given expression (pp. 78–79).

On the basis of this distinction between a constitutional core and mere constitutional laws, in his 1932 text entitled Legality and Legitimacy, Schmitt (2004) claims that the Weimar Republic was experiencing a conflict between the “political substance” and the “positive form” of its constitution, since the electoral strength of the Nazi and the Communist parties threatened to undermine the “bourgeois republic,” by formally legal “parliamentary” means (pp. 40–43). For this reason, Schmitt (2004) explicitly recommends that the President of the Republic make use of Article 48 of the constitution to invoke emergency powers and ban both the Nazi and the communist parties, even though this was strictly speaking in conflict with the principle of “equal chance” embodied in the positive expression of the Weimar constitution (pp. 48–49).

This can be considered Schmitt’s version of a theory of militant democracy. Its key contention is that emergency powers may be called upon to justify a restriction of democratic freedoms in violation of ordinary “constitutional law,” so long as this is intended to defend the political “core” of the constitution itself. The reason we consider this a much more sophisticated theory of militant democracy than Loewenstein’s is that it clearly brings out something that had only remained implicit in the latter. Namely, that the decision as to what constitutes a threat for the survival of the democratic order is necessarily an exceptional (i.e. ultimately political) decision, which cannot be subsumed into any prior norm, and must therefore be established arbitrarily by whoever has the power to enforce it. This is made clear by Schmitt when he points out that the actual text of a written constitution cannot, without circularity, draw the distinction between its political core and mere constitutional law, because that would beg the question of establishing whether that clause itself belongs to the constitutional core or mere constitutional law. As Schmitt (2008) notes, from this it follows that the decision must necessarily be taken in a “sovereign” (i.e. exceptional) manner by whoever has the power to declare an exception (pp. 78–79).

It is important to emphasize, therefore, that whereas for most contemporary constitutional theorists the constitution’s core merely refers to the formal procedures of constitutional change that are set out in the constitution itself, Schmitt’s substantive notion of a core—and the foundation of his theory of militant democracy—is a direct rejection of the reduction of a constitutional core to amendment procedures. If parties antithetical to the substance of the constitutional order are to be banned, the constitution in Schmitt’s view must necessarily be more than a formula for constitutional change; a sovereign decision must be identified. The rejection of a procedural view of the constitutional core-as-amendment-procedure in favor of a substantive view of the core-as-sovereign decision is, in Schmitt’s view, a logical requirement for militant democracy.

Beyond the formal juristic point concerning the impossibility of a constitution specifying its own core, the deeper political point that emerges from this analysis is that the decision as to what constitutes an enemy of a given constitutional order is necessarily arbitrary because it concerns the boundaries of the political entity itself. For, if we assume—as Schmitt (1985) does—that democracy is a political regime founded on a principle of “identity” between those who make the laws and those who are subject to them (p. 15), it follows that any exclusion from the possibility of participating in the democratic game amounts to an exclusion from the political entity itself. This, however, is not a decision that can be coherently made democratically, through established procedures. For democratic procedures suppose, by definition, that the boundaries of the demos (i.e. the “friends” and “enemies” of the democracy in question) are already settled in advance. Thus, the upshot of Schmitt’s analysis is that a democratic order cannot address the problem of the potential existence of internal enemies without re-politicizing the question of membership within the political entity, and therefore inevitably introducing a foreign element of authoritarianism within the very functioning of the democratic order itself.

Given Schmitt’s well-established political antipathy to democracy (Balakrishnan, 2002; Müller, 2003; Scheuerman, 1994), this may well have been the reason for his recommending such a strategy to begin with. However, from a more whole-heartedly democratic perspective, this suggests that militant democracy may not be the best way of safeguarding the democratic nature of a regime in the long run. Indeed, this is not just a contingent feature of Schmitt’s own theorization of a form of militant democracy, but rather a more general problem implicit in the very logic of restricting democratic freedoms for the purpose of preserving the democratic nature of the regime. To illustrate this, in what follows, we consider several more contemporary attempts at overcoming the inherent arbitrariness of militant democracy, showing that they all ultimately fail for the same underlying conceptual reason that was already identified by Schmitt in his account.³

The Failure of Recent Attempts to “Tame” the Inherent Arbitrariness of Militant Democracy

Most recent theorizations of militant democracy have consisted in attempts to extricate this notion from the questionable intellectual premises—and political goals—of its early articulations, re-establishing it on more solidly liberal-democratic grounds. In this section, we suggest some reasons why such attempts have failed, by focusing on two parallel strategies for taming the inherent arbitrariness of militant democracy. On one hand, liberal theorists such as Alexander Kirshner have attempted to justify provisions of militant democracy on the basis of the principle that conflicting rights claims ought to be balanced against one another. On the other hand, democratic theorists such as Stefan Rummens have attempted to overcome the inherent arbitrariness of militant democracy by suggesting that the decision over who is to be considered an enemy of democracy ought to be submitted to a democratic process of collective deliberation. Our argument is that both these attempts fail because they do not take into account that militant democracy involves a re-politicization of the question of membership in the demos, which cannot be resolved in a principled way either by liberal or democratic means.

Kirshner’s book, A Theory of Militant Democracy. The Ethics of Combating Political Extremism, proposes to inscribe the exercise of militant democracy within a normative framework centered on two substantive principles: that “exclusionary rules or policies—such as a party ban—should be used only to thwart anti-democrats from invidiously violating others’ rights” and that “militant policies should not be employed in the pursuit of an ideal regime … [but should rather] help attain an intermediate end, an imperfect political system in which capable citizens can play a meaningful role” (Kirshner, 2014: loc. 165/3690).

The reason Kirshner (2014) considers this a “self-limiting” theory of militant democracy is that the logic by which it is justified is supposed to contain the principle of its own limitation: since the goal is to allow everyone to meaningfully exercise their right to participation, restrictions of this right cannot be justified unless they result in a “better approximation” of the ideal of full and equal participation (p. loc. 792/3690). The difficulty is that such a “better approximation” cannot be established by the formal principle of militant democracy itself but requires a set of external, substantive normative judgments that are exogenous to Kirshner’s theory. The reason for this is that, under conditions of serious constitutional conflict (i.e. the circumstances in which militant democracy will be relevant in the first place), the definition of what counts as the core rights under contestation is by definition not agreed upon.

This can be illustrated in light of Kirshner’s own discussion of the exclusion of confederate states from the process of ratification of the 14th amendment in the aftermath of the American civil war, which omits to mention that, from a purely rights-based perspective, the abolition of slavery also constituted a violation of someone’s rights: the property rights of slave-owners, which at the time enjoyed legal recognition and were also at the basis of an entire mode of economic production (Foner, 1988). In this clash of rights, Kirshner’s criteria of militant democracy cannot resolve the question one way or another precisely because the conflict involves the fundamentally political question of who is to be regarded as a member of the demos and therefore a bearer of democratic rights in the first place.

Our view of the extreme injustice of America’s White supremacist foundations should not obscure this contradiction, since this would repeat the error often associated with defenses of militant democracy, namely to build into its justification the premise that political officeholders applying militant democratic provisions will share our own normative dispositions. To be sure, this is not to say that the abolition of slavery or overcoming of racist restrictions to citizenship is somehow arbitrary from a moral point of view. On the contrary, as a formal constitutional principle, the justification of militant democracy cannot rest on the assumption that it will be employed only by people who happen to share our substantive normative views. Indeed, smuggling such premises into the justification of militant democracy actually obscures their primary danger, namely that, as instruments of exclusion, they can be exercised by whoever happens to hold power against political opponents.

The opposite problem is illustrated by the work of another author who has recently sought to devise a way for overcoming the inherent arbitrariness of militant democracy. Relying on a Habermasian conception of deliberative democracy, Rummens has suggested that the decision as to what constitutes an acceptable form of political participation within a democratic framework ought to be submitted to a process of democratic deliberation. In this way, the democratic order would be configured as a “dynamic system” that reflectively regulates the conditions for its own reproduction (see Rummens, 2010, 2012).

Concretely, this means that, at the stage of a hypothetical starting point, “everybody” (i.e. presumably all those subject to the laws of the polity in question) ought to be allowed to participate in the deliberative process instituting the rules of the democratic game. However, over time, this process could institute more restrictive rules concerning which kinds of political actions and actors ought to be allowed to participate within it: this is what Rummens refers to as the “concentric containment of political extremism” (see Rummens, 2010).

The problem with this argument, however, is that it does not really amount to a justification of militant democracy as such. Submitting the decision over who ought to be allowed to participate in the democratic game to a reflexive process of democratic deliberation does not per se offer any grounds to assume that this deliberation will result in the exclusion of actors that represent a “threat” for the stability of the democratic system as a whole. On the contrary, it merely reproduces the problem that militant democracy was meant to solve in the first place, at a higher level of abstraction.

This can be observed if we consider how such a hypothetical deliberative process could come to a concrete decision as to what kinds of actors ought to be excluded. Appealing to consensus would be absurd, since that would effectively require the intended targets of militant democracy to agree to their own exclusion. The only plausible alternative seems to be either a majority or a super-majority rule. But this merely reproduces the problem that militant democracy was meant to solve in the first place, since the concern that militant democracy was supposed to address was precisely that an anti-democratic majority (or super-majority) could capture the democratic process, and use it to arbitrarily exclude others from the possibility of participating within it.

Here too, we see the Schmittian problem of the boundaries of the political entity re-emerging. For, effectively, the question that Rummens’ theory of the “concentric containment of political extremism” is incapable of answering is that over who is entitled to exclude others from the possibility of participating in democratic deliberations. Since deliberative democracy is supposed to be founded on the principle of collective self-government, this amounts to a restatement of the question of membership in the political community itself—which cannot be solved by deliberative means, given that the very idea of collective deliberation presupposes that the boundaries of the collectivity are already settled.

In order to escape this problem, in some formulations of his theory, Rummens proposes to depart from a strictly “procedural” interpretation of the notion of deliberative democracy, by introducing the assumption that there is a substantive core to this kind of political regime—which for him consists in the principles of freedom and equality (see Rummens, 2010). On this basis, Rummens claims that whoever is opposed to these core values cannot be allowed to participate in the democratic process, at least to the extent that this affords them the concrete possibility of undermining them (see Rummens, 2012). The problem with this modification of his theory is that it seems to fall back on something similar to the Schmittian doctrine of a “constitutional core.” Rummens doesn’t provide any criterion for establishing who is to be considered opposed to the substantive values he identifies as democracy’s “conceptual core.”

On the contrary, he explicitly recognizes that the principles of freedom and equality are “highly indeterminate” and “in need of further specification,” later suggesting that this process of “specification” ought to happen through democratic deliberation (see Rummens, 2010). If this is to be taken seriously, it brings us back to the starting point, that is, the idea that the decision as to who ought to be excluded from the democratic process should be taken through an exercise of that process itself. In the final analysis, therefore, Rummens’ theory of the “concentric containment of political extremism” appears to be stuck in a dilemma: either adopt a purely procedural conception of deliberative democracy, that necessarily remains vulnerable to the threat of being overthrown legally from within, or introduce a series of substantive normative premises as to what constitutes a legitimate kind of political action or agency, which nonetheless carry with them an irreducible element of arbitrariness in the Schmittian sense. This is the same dilemma of militant democracy we have been focusing on from the start, only at a higher level of abstraction.

The above analysis accordingly reveals that neither liberal nor democratic accounts of militant democracy can answer, in a non-arbitrary way, the question of who is to be treated as an enemy of democracy, which is implicitly a question over who is to be considered a member of the political entity itself. Indeed, as Schmitt himself already clearly pointed out, since both liberalism and democracy are, in the final analysis, conceptions of the way in which the political entity should be structured, they, by definition, cannot provide an answer to the question of the boundaries of the political entity itself (Schmitt, 2008: 115–119; on this point, see also Abizadeh, 2012; Kalyvas, 2008; Naastrom, 2007). For this reason, we argue that the re-politicization of the question of membership that is implicit in the logic of militant democracy necessarily implies the reintroduction of a foreign element of arbitrariness in the very functioning of democracy.⁴

The Expansion of the Range of Targets of Militant Democracy

If the analysis we have provided above is correct, it follows that militant democracy fails on its own terms as a non-arbitrary principle for excluding presumptive enemies of democracy in a democratic and constitutional way. The inherent arbitrariness of the decision over who is to be treated as an “enemy” of democracy implies that militant democracy must always take the form of a “decisionist” and authoritarian exercise of power that contradicts the very logic of the system it is supposed to protect. What we would like to show in addition, however, is that this is not merely an abstract theoretical problem, but rather something that has had concrete consequences on the way in which the principle of militant democracy has been applied over the course of its history.

In contexts of stiff political contestation, the availability of measures permitting an arbitrary exclusion of certain actors from the democratic game may provide the means for those with the power to make this decision to exclude an indeterminately expansive range of presumptive enemies of democracy, so as to cover more and more potential competitors. Such an expansion in the range of targets of militant democracy corresponds to a restriction of the democratic nature of the regimes in question and therefore confirms the point that militant democracy may end up having the opposite effect than the one intended.

In what follows, we show that this is reflected in the European jurisprudence on militant democracy by the successive applications of the concept to fascist parties during the inter-war years, communist parties during the Cold War, and various forms of religious practice taken to represent threats for the stability and viability of democratic regimes in the present day. To illustrate this, we focus, in particular, on three landmark legal cases covering the period since the end of the Second World War to the present day: the so-called KPD case, whereby the German constitutional court dissolved the German Communist party in 1956; the Refah Partisi case, whereby the European Court of Human Rights upheld a ban on that country’s Refah party in 2003; and the case of Sahin v. Turkey of 2005, whereby the same court also upheld a Turkish statute banning the use of Islamic headscarves in public universities.

Before proceeding, it should be noted that what follows is obviously not an exhaustive analysis of all the European jurisprudence on militant democracy since the end of the Second World War. Rather, we have selected three particularly important cases that we take to be illustrative of the potential for expansion in the range of targets of militant democracy. From this, it follows that the analysis we propose cannot show conclusively that the concrete application of militant democracy provisions will necessarily display an expansive tendency to cover more and more potential targets over time. All we intend to show is that this is a possibility implicit in the logic of militant democracy itself, and that the relevant European jurisprudence on militant democracy has made this possibility manifest.⁵

The German KPD (Kommunistische Partei Deutschlands) case is good starting point to examine the vicissitudes of the European jurisprudence on militant democracy in the post-war period for at least two reasons. First, Germany is generally considered the “home” of the concept of militant democracy, both because of its past experience with National Socialism, and because it is the country in which the jurisprudence on this concept is most extensive and developed (see Klamt, 2007). Second, KPD is also the first instance in which a European constitutional court has made explicit reference to the concept of “militant democracy.” Thus, even though the German Basic Law already contained specific provisions for banning political parties intending to undermine the “free democratic basic order,” and even though similar provisions had also already been constitutionalized and applied in other countries before (Thiel, 2009), this can be considered the first formal application of the principle of militant democracy in post-war European constitutional history.⁶

Concretely, the case revolved around the question of whether the KPD could be legally banned under Article 21 of the German Basic Law, which forbids parties that “by reason of their aims or the behavior of their adherents seek to undermine or abolish the free democratic basic order.” The case was ultimately decided on the basis of a series of statements by the leaders of this party taken to demonstrate that its aim was “to establish a socialist-communist system by means of a proletarian revolution and the dictatorship of the proletariat” (BVerfGE 5, 156). Interestingly, however, the defendants never contested this charge. Rather, their defense was based on the claim that Article 21 of the German Basic Law was itself incompatible with the idea of a “free democratic basic order” (see BVerfGE 5, 83).

This argument points to the core objection we develop in this article, namely, that there is no way of establishing what constitutes an enemy of democracy in a way that is consistent with liberal-democratic values, and therefore that the application of this principle necessarily amounts to an arbitrary exercise of authoritarian power. To be sure, the court rejected the argument. However, it is interesting to note that in order to do so it was forced to rely on the idea of a supposedly manifest “political will” of the constitution’s framers, which clearly reflects the lingering influence of the Schmittian idea of a constitutional core on the post-war German jurisprudence on militant democracy:

Article 21 Section 2 of the Basic Law—the court ruled—does not conflict with a fundamental principle of the constitution; it is an expression of a conscious constitutional-political will to solve a border problem of the free democratic state, a reflection of the experiences of the constitutional legislator, who thought he could not realize the principle of neutrality towards political parties in a pure form in a specific historical situation, a confession to a militant democracy (BVerfGE 5, 85; emphasis added).

As our analysis of the theoretical framework underscoring Schmitt’s endorsement of a form of militant democracy has already brought out, far from solving the “border problem” in question, this appeal to the idea of a manifest “constitutional-political will” merely covers it up. For, even granting that the framers of the German Basic Law had the specific intention of banning any potential “threat” to the free democratic basic order, it remained to be determined precisely what could be considered as amounting to such a threat in the conditions in which this juridical provision was being applied, that is, in other words, how the German political entity ought to be re-defined in 1956.

In this connection, it is noteworthy that the party in question had only obtained about 5.7% of the popular vote during the first general election of the German Federal Republic in 1949, and then 2.2% in 1953, resulting in its exclusion from the German parliament already on the basis of ordinary electoral law.

This marks an important contrast with the context in which Loewenstein had originally developed the notion of militant democracy. For, at that time, fascist parties had much greater electoral support, and indeed already succeeded in coming to power by more or less legal means in both Germany and Italy. This is what afforded Loewenstein’s arguments much of their plausibility, and sense of political urgency. In contrast, the chance of a similar electoral victory for the KPD in 1956 was vanishingly small. The application of militant democracy to this party, therefore, marks a first expansion in the range of potential targets of militant democracy, which effectively got rid of the criterion of “imminence” that applied to fascism during the inter-war years.

A second expansion in the range of targets to which the logic of militant democracy has been applied in Europe can then be tracked through an analysis of the Refah case, through which the European Court of Human Rights upheld a ban on Turkey’s ruling party in 2001. The background to the case is as follows: in 1998, the Turkish Constitutional Court dissolved the Refah Party, which had been in existence for 15 years. At the time of the ban, this was the largest party in the country, having won 22% of the popular vote in the general election in 1995, and was also involved in a coalition government which had nominated the party’s leader, Necbettin Erbakan, to the position of Prime Minister of Turkey (see Macklem, 2012).

The main reason given by the Turkish Constitutional Court for banning this party was its support for a system of “legal pluralism,” whereby citizens of different religious persuasions would have been allowed to choose the specific body of law regulating certain aspects of their life, such as family and inheritance law. In the Court’s opinion, such a system constituted a violation of the constitutionally enshrined principle of “secularism,” because it implied that in cases of dispute the state would have been forced to inquire into the religion of its citizens and treat them differently on that basis (Refah, 2003: 14). While presenting its case before the European Court of Human Rights, however, the Turkish Government developed its argument further, explicitly appealing to the principle of “militant democracy” in order to inscribe the ban within the remit of Article 11 of the European Convention of Human Rights, which permits restrictions on the principle of freedom of association, to the extent that these can be shown to be “necessary in a democratic society” (Refah, 2003: 26).

The European Court of Human Rights rejected Refah’s defense, based on the compatibility of legal pluralism and secularism (Refah, 2003: 24), and ruled in favor of the Turkish government, thereby implicitly elevating the notion of militant democracy into a constitutional value at the European level (Refah, 2003: 34). What appears even more significant, however, is that in so doing the court also implicitly gave its approval to an idea which had previously been wholly extraneous to the jurisprudence on militant democracy, namely, that such a principle could be used to justify the dissolution of a political organization that was not explicitly opposed to democracy.

For this is a key difference between the Refah case and the previous instances of juridical exercise of the principle of militant democracy, such as the KPD case we have considered above: that while in the case of both fascism and communism, nobody—not even the relevant parties themselves—challenged the fact that their ultimate aim was indeed to subvert the democratic order, in the Refah case, this was precisely the issue of contention. Thus, Refah effectively implies that a political organization can legitimately be treated as a threat for democracy without ever even intending, or at least claiming that it intends, to subvert it. This gets rid of the criterion of “explicitness” of the threat, which had still applied during the KPD case.⁷

In the case of Sahin v. Turkey of 2005, the Court was called upon to adjudicate a controversy sparked by a Turkish administrative statute banning the use of Islamic headscarves in public universities. In its decision, the court referred back to the Refah case, arguing that it had already established that challenges to the principle of secularism could legitimately be considered challenges to democracy in Turkey, and therefore that the Turkish government had acted within the bounds of its “margin of appreciation” in establishing what kinds of restrictions to the principle of freedom of religion might be “necessary in a democratic society” (Sahin, 28).

What remains of the Refah case after Sahin is therefore only the idea that presumptive violations of the principle of “secularism” can be legitimately restricted to the extent that states deem it “necessary to preserve the democratic order.” This can be considered to mark a further expansion in the range of potential targets of militant democracy, inasmuch as it relieves those seeking to make use of this principle of the burden of demonstrating that the specific threat in question is either explicit (as was the case with the kinds of political parties banned prior to the Refah case) or imminent (as was certainly the case with fascism in the 1930s and allegedly also with the Refah party in 1998).⁸

Indeed, the appeal to the principle of militant democracy as a justification for banning headscarves in public places effectively implies that today in Europe it has become possible to be treated as an “enemy” of democracy, even if one has no intention of forming a political organization and competing for political power. Consider, for instance, the following statement made by one of the current judges of the European Court of Human Rights, who is also widely considered to be one among the most influential contemporary theorists of militant democracy, Andras Sajò (2012):

To the extent that religiously motivated action takes the form of a politically organized collective action, its effects often overlap with traditional militant democracy problems, i.e., obtaining political power via the democratic route … [However], the parallels with the problems that triggered militant democracy are remarkable, even if the religious manifestations are not always intent on grabbing political power … Consider for example the wearing of religious garb in public. This may have the same impact that paramilitary uniforms had in the 1930s. Religious insignia set in motion the same emotional mechanisms that quasi-military uniforms have on observers and followers. Bans on the headscarf and other elements of the vest are therefore often found to be legitimate in Western democracies (emphasis added).

The specific difference Sajò seems to pass over in this passage—that is, the difference between the paramilitary uniform worn by organizations such as the SA and the SS in the 1930s and Islamic headscarves worn by Muslim women in European countries today—is precisely the point we have sought to bring out in this section. Namely, that since the decision as to who constitutes an “enemy” of democracy cannot be decided by democratic means, the range of targets to which the logic of militant democracy is applied may be expanded to cover more and more presumptive threats to democracy. The framework of militant democracy, then, can and at times does provide an ostensibly democratic and constitutional fig leaf to an essentially decisionistic and anti-democratic politics, restricting the scope of democratic membership within a misleadingly democratic guise.

What the analysis of the European jurisprudence on militant democracy accordingly reveals is that militant democracy provisions may end up having the opposite effect than the one intended. For, while the question of whether the wearing of religious garb in public represents a meaningful threat to the survival of democratic regimes remains debatable, what is certain is that the application of militant democracy provisions to ban it has significantly diminished the democratic nature of the regimes in which it has been upheld, by arbitrarily excluding a whole range of subjects from the possibility of meaningfully participating in public life.

Conclusion

The conclusion we draw from the above analysis is therefore that militant democracy fails on its own terms as justiciable means for excluding presumptive “enemies” of democracy in a legally controlled way, and that this may have dangerous political consequences inasmuch as it may lead to an arbitrary expansion in the range of potential targets of militant democracy. The basic reason, as we have sought to bring out, is that there is no principled way of establishing what constitutes an enemy of democracy, since that is in the final analysis a decision over the boundaries of the political entity itself. Such a decision, by definition, cannot be made by democratic means and must accordingly amount to a sovereign exercise of “authoritarian” power. Militant democracy, in short, presents a democratic and constitutional fig leaf, covering decisionistic and authoritarian politics.

While it is of course possible that those empowered to make such a decision may use this power judiciously, banning actors that really do represent a threat to the survival of the democratic regime, this is not something that the theory itself can guarantee, since a sovereign exercise of authoritarian power, by definition, cannot be controlled by any higher norm. The key problem we see in the inclusion of militant democracy provisions within a constitutional framework can therefore be summed up with reference to a point made by Jeremy Waldron (2012) concerning legal norms in general:

One of the things that happens when a norm, N, becomes a law is that people who argued in favor of it … lose control of it. It goes out into the world and becomes the common possession of all, to be used by all-comers in ways they think fit. We are not responsible for all uses that may be made of N but … we ought to consider for starters whether we are comfortable with N in the hands of our enemies … We should not make the case for such a norm based on the vanishingly improbable supposition that only fine people like us will be involved in its administration (p. 112).

Applied to the point we have sought to bring out concerning militant democracy, this points to the danger of introducing legal provisions allowing public officials to ban political parties or other kinds of political actors on the basis of the claim that they constitute threats for the survival of the democratic regime. For this leaves open the possibility that such provisions will be used instrumentally by the enemies of democracy themselves, to arbitrarily exclude competitors from the possibility of participating in the political process. To paraphrase Robert Jackson (1944), once a provision of militant democracy is included within a legal order it “then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need” (Jackson, 1944: 246).

In making this argument, however, we do not wish to dismiss the concerns that motivate theorists of militant democracy in the first place. Although we are critical of militant democracy’s solution, the problem of the “paradox of democracy” —that is, that democratic means may be used to undermine democracy—cannot be conjured away. In order to address this concern, we shall therefore end by gesturing toward two alternative ways of dealing with this problem, which seek to avoid the pitfalls of militant democracy. It should be noted, however, that the treatment of these proposals will remain largely programmatic, in the sense that they are intended mostly as indications of possible avenues for further research, rather than as an exhaustive discussion of the multiple and interesting issues they raise.

One possible way of addressing the problem militant democracy is meant to solve, while avoiding its pitfalls, is to draw a clear distinction between the legal regulation of the kinds of actions that are allowed within a democratic framework and the set of legitimate political actors on the basis of their goals or ideologies (see Bourne, 2012, 2014). Indeed, as several commentators have noted, only the latter, strictly speaking, should be considered as an exercise of militant democracy (see Capoccia, 2013; Issacharoff, 2007). For all democratic regimes must necessarily involve legal norms defining what counts as an expression of the popular will (as a matter of constitutional law), and banning certain kinds of behavior (as a matter of criminal law). This should not, however, be considered as amounting to a form of militant democracy, because it does not involve the exclusion of the relevant actors from the possibility of participating in the democratic game. It only proscribes certain kinds of behavior, whereas for the concept of militant democracy to retain any specificity with respect to the general notions of constitutional and criminal law, it must involve the proscription of specific actors, on the basis of their goals or ideologies.

On this basis, it could perhaps be suggested that democratic regimes ought to insure themselves against the so-called “paradox of democracy” by relying exclusively on the means of constitutional and criminal law, without entering into the terrain of militant democracy. For instance, statutes banning paramilitary uniforms or overt political intimidation would not amount to a form of militant democracy according to the strict definition implied in the distinction above, since they do not proscribe any actors from the possibility of participating in the democratic game. However, they might go some way toward preventing presumptive enemies of democracy from succeeding in their goals.⁹

Another possible way of dealing with the same problem is to pursue the opposite political strategy from the one implicit in the idea of militant democracy—that is, to strive as much as possible to include the presumptive enemies of democracy within the legal framework of democratic norms, rather than excluding them. This idea is developed, for instance, by Nancy Rosenblum (2008) through a discussion of the various processes whereby “anti-democratic” parties can be drawn into the electoral game and, as a result of having to compete within it, may reformulate their objectives in ways that are consistent with democratic partisanship (pp. 453–455). As she puts it, this kind of “faith in politics” may offer even anti-systemic political actors incentives and a foothold in the democratic process that can result in a genuine strengthening of democracy where exclusion would weaken it.¹⁰

To be sure, neither of these possible ways of addressing the so-called “paradox” of democracy can offer any absolute guarantees that a democratic regime will not overthrow itself by democratic means. For if the enemies of democracy turn out to be an overwhelming majority, no coherent conception of democracy would seem to be able to prevent that. However, in the final analysis, it is perhaps precisely this phantasm of a totally “riskless democracy” that is the source of the problem. For that seems to involve the opposite paradox from the one we have been considering up to this point, namely, that a democratic regime may potentially have to be enforced against the people’s will.

If democracy is to be understood as a form of government based on the principle of freedom as collective self-government, this suggests that it must inevitably be willing to assume a certain measure of political risk—as was painfully recognized by Hans Kelsen in the tragic but also lucid passage we quoted at the beginning of this article. Of course, this does not mean that all democratic orders are equally risky, or that there is nothing democracy can do to make itself more secure. But at the very least, the medicine must not be more dangerous than the infirmity. Militant democracy fails this test.

Footnotes

Acknowledgements

We would like to thank Nicolas Guilhot, Alex Kirshner, Jan-Werner Müller, Peter Niesen, Stefan Rummens, and Nadia Urbinati, as well as the anonymous reviewers from Political Studies, for invaluable comments on earlier versions of this manuscript.

Funding

The research that led to this publication was also partially supported by the ERC Research Project RESIST, headed by Justine Lacroix at the Université Libre de Bruxelles.

Notes

Author Biographies

Carlo Invernizzi Accetti is Assistant Professor of Political Theory at the City University of New York (City College) and an Associate Researcher at the Institut d’Etudes Politiques de Paris (Sciences Po). He holds a PhD from Columbia University and his book entitled Relativism and Religion. Why Democratic Societies Do Not Need Moral Absolutes is forthcoming with Columbia University Press (2015).

Ian Zuckerman is currently a Post-Doctoral Teaching Fellow at the Thinking Matters program at Stanford University. He holds a PhD in Political Theory from Columbia University and is currently working on a book manuscript on the theory and practice of emergency powers in the United States.

References

Abizadeh

(2012) On the Demos and Its Kin: Nationalism, Democracy, and the Boundary Problem. American Political Science Review 106 (4): 867–882.

Avineri

(2004) Introduction. In: Sajò

(ed.) Militant Democracy. Utrecht: Eleven International Publishing, pp.1–14.

Balakrishnan

(2002) The Enemy: An Intellectual Biography of Carl Schmitt. New York: Verso.

Bourne

(2012) The Proscription of Parties and the Problem with Militant Democracy. The Journal of Comparative Law 7 (1): 196–213.

Bourne

(2014) Security or Tolerance? The Proscription of Political Parties in Democratic States. Paper presented at ECPR joint sessions. Salamanca, April.

Boyle

(2004) Human Rights, Religion and Democracy: The Refah Party Case. Essex Human Rights Review 1 (1): 12.

Bulla

(1973) Die Lehre von der streitbaren Demokratie: Versuch einer kritischen Analyse unter besonderer Berücksichtigung der Rechtsprechung des Bundesverfassungsgerichts. Archiv Des Öffentliche Rechts 98 (3): 28–46.

BVerfGE [Bundesverfassungsgericht] 5, 85 - KPD-Verbot (17 August 1956). Available at: http://www.servat.unibe.ch/dfr/bv005085.html (accessed 15 February 2016).

Capoccia

(2013) Militant Democracy: The Institutional Bases of Democratic Self-Preservation. Annual Review of Law and Social Sciences 9: 207–226.

10.

Cary

(1996) The Path to Christian Democracy: German Catholics and the Party System from Windthorst to Adenauer. Cambridge, MA: Harvard University Press.

11.

Casal Bértoa

Piccio

Rashkova

(2015) Party Laws in Comparative Perspective: Evidence and Implications. In Van Biezen

Ten Napel

(eds.) Political Parties and Public Law: The Netherlands in Comparative Perspective. Leiden: Leiden University Press.

12.

Evans

(2006) Islamic Scarf in the European Court of Human Rights. The Melbourne Journal of International Law 52. Available at: http://www5.austlii.edu.au/au/journals/MelbJIL/2006/4.html (accessed 15 February 2016).

13.

Evans

Thomas

(2006) Church-State Relations in the European Court of Human Rights. BYU Law Review 699. Available at: http://digitalcommons.law.byu.edu/lawreview/vol2006/iss3/4 (accessed 15 February 2016).

14.

Foner

(1988) Reconstruction: America’s Unfinished Revolution 1863–1877. New York: Harper & Row.

15.

Harvey

(2004) Militant Democracy and the European Convention on Human Rights. European Law Review 29: 407–420.

16.

Issacharoff

(2007) Fragile democracies. Harvard Law Review 120 (6). Available at: http://harvardlawreview.org/2007/04/fragile-democracies/

17.

Jackson

(1944) Dissent Against Decision in Korematsu v. United States (No. 22). Available at: https://www.law.cornell.edu/supremecourt/text/323/214#writing-USSC_CR_0323_0214_ZD2 (accessed 15 February 2016).

18.

Kalyvas

(2008) Democracy and the Politics of the Extraordinary. Cambridge: Cambridge University Press.

19.

Kalyvas

(1996) The Rise of Christian Democracy in Europe. Ithaca, NY: Cornell University Press.

20.

Kalyvas

Van Kersbergen

(2010) Christian Democracy. Annual Review of Political Science 13: 183–209.

21.

Kelsen

(1932) Verteidigung der Demokratie. In: Blätter der Staatspartei, Jahrgang 2, Heft 3/4.

22.

Kelsen

(2006) General Theory of Law and State. London: Transaction Publishers.

23.

Kirshner

(2014) A Theory of Militant Democracy: The Ethics of Combatting Political Extremism. New Haven, CT: Yale University Press.

24.

Klamt

(2007) Militant Democracy and the Democratic Dilemma: Different Ways of Protecting Democratic Constitutions. In: Bruinsma

Nelken

(eds) Explorations in Legal Cultures. The Hague: Elsevier, pp.133–159.

25.

Lefort

(1989) Democracy and Political Theory. Cambridge, MA: MIT University Press.

26.

Loewenstein

(1937) Militant Democracy and Fundamental Rights. American Political Science Review 31 (3): 417–432.

27.

Macklem

(2006) Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination. International Journal of Constitutional Law 4 (3): 488–516.

28.

Macklem

(2012) Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe. Constellations 19 (4): 575–590.

29.

Müller

J-W

(2003) A Dangerous Mind: Carl Schmitt in Post-War European Thought. New Haven: Yale University Press.

30.

Müller

J-W

(2012) A “Practical Dilemma which Philosophy Alone Cannot Resolve”? Rethinking Militant Democracy. Constellations 19 (4): 536–539.

31.

Naastrom

(2007) The Legitimacy of the People. Political Theory 35 (5): 624–658.

32.

Nasr

(2005) The Rise of Muslim Democracy. Journal of Democracy 16 (2): 13–27.

33.

Niesen

(2002) Anti-Extremism, Negative Republicanism, Civil Society: Three Paradigms for Banning Political Parties. German Law Journal 3 (7): 249–286.

34.

Nolte

Fox

(1995) Intolerant Democracies. Harvard International Law Journal 36 (1): 1–70.

35.

Pedahzur

(2004) The Defending Democracy and the Extreme Right: A Comparative Analysis. In: Eatwell

Mudde

(eds) Western Democracies and the New Extreme Right Challenge. London: Routledge, pp.108–132.

36.

Popper

(1945) The Open Society and Its Enemies. London: Routledge.

37.

Refah (2003) Case of Refah Partisi (The Welfare Party) and Others v. Turkey. Available at: http://hudoc.echr.coe.int/eng#{“itemid”:[“001-59617”]} (accessed 15 February 2016).

38.

Ridder

(1957) Streitbare Demokratie? Neue Politische Literatur 4 (3): 352–368.

39.

Rosenblum

(2008) On the Side of the Angels: An Appreciation of Parties and Partisanship. Princeton, NJ: Princeton University Press.

40.

Rummens

(2010) Defending Democracy: The Concentric Containment of Political Extremism. Political Studies 58 (4): 649–665.

41.

Rummens

(2012) Concentric Democracy: Resolving the Incoherence in the European Court of Human Rights’ Case Law on Freedom of Expression and Freedom of Association. International Journal of Constitutional Law 10 (1): 106–126.

42.

Sajò

(ed.) (2004) Militant Democracy. Utrecht: Eleven International Publishing.

43.

Sajò

(2006) From Militant Democracy to the Preventive State. Cardozo Law Review 27 (5). Available at: http://cardozolawreview.com/Joomla1.5/content/27-5/SAJO.WEBSITE.pdf

44.

Sajò

(2012) Militant Democracy and Emotional Politics. Constellations 19 (4): 562–574.

45.

Scheuerman

(1994) Between the Norm and the Exception: The Frankfurt School and the Rule of Law. Cambridge, MA: MIT Press.

46.

Schmitt

(1985) The Crisis of Parliamentary Democracy. Durham, NC: Duke University Press.

47.

Schmitt

(2004) Legality and Legitimacy. Durham, NC: Duke University Press.

48.

Schmitt

(2008) Constitutional Theory. Durham, NC: Duke University Press.

49.

Talmon

(1952) The Origins of Totalitarian Democracy. London: Secker & Warburg.

50.

Thiel

(ed.) (2009) The “Militant Democracy” Principle in Modern Democracies. London: Ashgate.

51.

Van Biezen

Molenaar

(2012) The Europeanisation of Party Politics. West European Politics 35 (3): 632–656.

52.

Waldron

(2012) Justifying Targeted Killings with a Neutral Principle? In: Finkelstein

Ohlin

Altman

(eds) Targeted Killings: Law and Morality in an Asymmetrical World. Oxford: Oxford University Press, pp.112–134.

53.

Weber

(1978) Economy and Society: An Outline of Interpretive Sociology. Berkeley, CA: University of California Press.