Democratic Dilemmas

Why democracies ban political parties

Angela Bourne, Angela K Bourne

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781317484059
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

This book examines how democratic communities resolve dilemmas posed by anti-system parties or, more specifically, the question of why democracies take the grave decision to ban political parties. On the one hand, party bans may 'protect' democracies, usually from groups deemed to undermine the democratic system or its core values, territorial integrity or state security. At the same time, banning parties challenges foundational democratic commitments to political pluralism, tolerance and rights to free speech and association. The book probes the deliberative processes, discursive strategies and power politics employed when democratic communities negotiate this dilemma. It examines discourses of securitization and desecuritization, preferences of veto-players, anti-system party orientations to violence, electoral systems and the cordon sanitaire as alternatives to party bans, and incentives for mainstream parties to cooperate, rather than ban, parties to achieve office and policy goals. It does so with reference to case studies of party bans, legalizations and failed ban cases in Spain (Herri Batasuna and successors), the United Kingdom (Sinn Féin and Republican Clubs) and Germany (Socialist Reich Party and National Democratic Party of Germany).

1Theory and research design

From ‘militant democracy’ to security discourse, institutions and democratic competition

This chapter presents the theoretical foundations of the book’s research. I begin with a discussion of the existing literature on ‘militant democracy’ and argue that this paradigmatic concept provides only limited insights for explaining why some democracies ban parties but others do not. I then discuss the process of hypothesis formation, followed by an elaboration of theoretical underpinnings and operationalization of hypotheses explored in the book. In the conclusion, I outline expectations regarding relationships between variables.

The ‘militant democracy’ paradigm

In both the study of party bans and democratic responses to political extremism more generally, ‘militant democracy’ is a paradigmatic concept. Its origins are usually traced to Karl Loewenstein’s (1937) appeal for robust responses to the rise of fascism in 1930s’ Europe. Loewenstein thought ‘fundamentalist’ commitments to democratic principles could be ‘suicidal’ because ‘under cover of fundamental rights and the rule of law, the anti-democratic machine could be built up and set in motion legally’ (ibid., 423–424). Only timely implementation of anti-fascist legislation – including bans on party paramilitary organizations and political uniforms, prosecution of incitement to violence or hatred and the proscription of subversive movements or parties – could provide democracies with effective defence against extremists (ibid., 429). In the post-war period, justifications and techniques of militant democracy have become more widely used, with Germany the best-known example of a so-called militant democracy (McWhinney, 1957; Kirchheimer, 1961; Niesen, 2002; Rensmann, 2003). The ECtHR has also developed its own doctrine of militant democracy (Harvey, 2004; Brems, 2006a; Macklem, 2012).

In recent years, however, many scholars have criticized the concept of ‘militant democracy’ for being too vague, too imprecise, or too narrowly focused on legal instruments (Mudde, 2004, 197; Pedahzur, 2004, 109–110; Thiel, 2009, 384). Others have argued that the concept tends to focus on movements that no longer constitute a serious threat to democratic politics, such as fascist or orthodox communist parties using democratic entitlements to win control of the state (Bligh, 2013, 1335–1336). More recently, scholars have tended to use the concept of ‘militant democracy’ as shorthand for a much wider range of measures employed against all kinds of extremist threat (e.g. Sajó, 2004; Thiel, 2009). This enlarged concept of militant democracy has become the victim of ‘concept stretching’ (Sartori, 1970, 1033). At its most extreme, the problem is discernible in the argument that there is no alternative to militant democracy because ‘it is barely conceivable that a country does not have (or never has) taken legally defensive measures to fight … against political extremists or terrorist threats’ (Thiel, 2009, 384; see also Vidal, 2009, 260). In other words, if all democracies are in some sense militant democracies, we cannot be certain what a non-militant democracy is and ‘militancy’ cannot serve as a variable for explaining differences in response to anti-system parties or to other kinds of anti-system collective actors (Bourne, 2012b).

Some have preferred to reconceptualize democratic militancy as a matter of degree; that is, democracies may be conceived as either more or less militant (Pfersmann, 2004, 53). However, this strategy also raises the problem of ‘degreeism’ (Sartori, 1991, 243–257), or that focusing on differences of degree can hide important differences in kind which may help explain variation in democratic responses to extremism. Others have sought to reconceptualize militant democracy as one of a number of types of democratic response to extremism, including conceptualization of militant democracy as an alternative to a ‘preventive’ or ‘counter-terror’ state (Sajó, 2012) or, in relation to former ruling party bans, as a response differing from ‘collaborator’ party bans or ‘post-Soviet space’ party bans (Niesen, 2012).

Others still have sought to develop more elaborate or comprehensive classificatory schemes and replace the rubric of militant democracy with a new vocabulary of ‘defending democracies’ (Pedahzur, 2004; Capoccia, 2001 and 2005; Rummens and Abts, 2010) or ‘intolerant’ democracies (Fox and Nolte, 2000). This work is useful for conceptualizing responses to democratic extremism as a dependent variable. However, it does not provide sufficiently precise operationalizable hypotheses that explain variation in state responses to extremism.

In addition to work conceptualizing, criticizing and searching for alternatives to the concept of ‘militant democracy’, there are many case studies focusing on legal rationales for the proscription of a party or parties in individual states (e.g. Auerback, 1954; McWhinney, 1957; Dyson, 1975; Feofanov, 1993; Cohen-Almagor, 1997; Hanschmann, 2001; Koçak and Örücü, 2003; Turano, 2003; Rensmann, 2003; Ganez, 2004; Tardi, 2004; Dyzenhaus, 2004; Esparza, 2004; Brems, 2006b; Erk, 2005; Iglesias, 2008; Vidal, 2009; Kemmerzell, 2010; Mareš, 2012; Bourne, 2015; Celep, 2014). A smaller number of studies compare party ban cases across countries (Franz, 1982; van Donselaar, 2003; Navot, 2008; Niesen, 2002 and 2012; Bale, 2007; Bourne, 2012a). Many other studies compare legal and constitutional frameworks within which party bans are conducted, sometimes addressing both international and national regimes (Kirchheimer, 1961; Gordon, 1987; Tomuschat, 1992; Fox and Nolte, 2000; Brunner, 2002; Sajó, 2004; Brems, 2006a; Pohl, 2006; Karvonen, 2007; Issacharoff, 2007; Klamt, 2007; Rosenblum, 2007; Thiel, 2009; Hartmann and Kemmerzell, 2010; Bourne, 2012b; Macklem, 2012; Bligh, 2013). In this literature, studies of party bans in Europe and North America predominate, although studies of bans in the Middle East (especially Israel, e.g. Cohen-Almagor, 1997; Pedahzur, 2004) and Africa (e.g. Kemmerzell, 2010; Hartmann and Kemmerzell, 2010) have extended the geographical range of the literature. Overall, the literature on party bans is dominated by the discipline of law, which mostly focuses on exploring and classifying the nature of legal and constitutional constraints on political parties rather than the question at issue in this research, namely, why some democracies ban parties but others do not. Many of these studies also tend to take official rationales for party bans at face value, something that this study seeks to problematize.

The literature on party bans sits alongside work examining a broader range of measures democratic states employ to deal with anti-system parties and movements (e.g. Capoccia, 2001, 2005; Downs, 2002, 2012; Bleich, 2011; Bleich and Lambert, 2013; van Spanje and van der Brug, 2007; van Spanje, 2010; Bale, 2003). As I spell out in more detail below, this literature provides many valuable insights for research on party bans. The relevance of this literature derives from the fact that many measures short of a party ban – such as erecting an exclusionary cordon sanitaire against anti-system parties, or electoral rules serving as barriers to small (and often radical) parties – raise similar kinds of democratic dilemmas and strategic choices for mainstream parties as those raised by party bans. Nevertheless, this broader literature is not in itself sufficient for addressing questions about why some democracies ban parties but others do not. In the first place, it mostly focuses on responses of democratic states to the contemporary far right. In so doing, it tends to underestimate the importance of security issues as rationales for the proscription of political parties. In addition to dealing with the threat posed by parties of the far right to democratic institutions and principles, democratic states may ban parties for threatening the territorial integrity of the state, for threatening state security by collaborating with foreign powers, or for association with groups employing political violence.

The broader literature on democratic responses to extremism is strongest where it develops theories to explain strategic choices of mainstream parties in relation to anti-system parties (see especially Downs, 2002 and 2012; Capoccia, 2005; van Spanje and van der Brug, 2007; van Spanje 2010). However, this focus tends to lead scholars to conceive of political choices about party bans within a rational choice paradigm, albeit with particular attention to constraints posed by the structure of democratic competition and electoral institutions. As I argue below, this is unnecessarily constraining and, indeed, there are grounds for also giving analytical weight to the role of ideas, norms and discourse in the study of party bans.

Hypothesis formation and theory development

In order to address the scarcity of operationalizable theoretical statements about why democracies ban political parties in the existing literature, it has been necessary to employ a complex research design involving two stages of hypothesis formation and testing.

Stage 1: hypothesis formation and testing in the crucial case of party bans in Spain

I began by developing three hypotheses from underdeveloped but insightful arguments and observed empirical regularities in single and ‘small n’ case studies about the conditions under which democracies ban parties (see Bourne, 2015). The hypotheses were that:

Democracies ban anti-system parties if they do not unambiguously reject violence.

Democracies ban anti-system parties if alternatives to proscription are not effective.

Democracies ban anti-system parties if relevant office holders expect they will not be disadvantaged in their pursuit of office or votes for supporting the ban.

I then tested these hypotheses in a case of party bans in Spain, and more specifically the ban on HB and its successors in 2003 (Bourne, 2015; see also Table 2.1). While often the subject of criticism, case studies can contribute significantly to theory development when they are ‘crucial cases’ (Eckstein, 1979), ‘critical cases’ (Yin, 2003, 40) and ‘deviant’ cases (Lijphart, 1971). In the first instance, party bans in Spain can be considered a ‘crucial case’, defined as ‘a case that must closely fit a theory if one is to have confidence in the theory’s validity’ (Eckstein, 1979, 118). The status of Spain as a crucial case is most evident in relation to the hypothesis about violence, probably the most important variable given foundational democratic commitments to negotiation of political differences through non-violent means. In other words, if the hypothesis that democracies ban parties that do not unambiguously eschew violence is valid, it was expected, a priori, that HB, EH and Batasuna, known to be the political wing of the terrorist group ETA, would be banned. In relation to the hypothesis about violence, Spain can also be considered one of a small number of ‘most likely cases’, which are cases that ‘ought … to invalidate or confirm theories if any cases can be expected to do’ (Eckstein, 1979, 118). This is because Spain is one of the few democratic states where political parties have supported an armed insurrection against the state, even if party leaders as such did not bear arms. And finally, it was expect that other hypotheses about alternatives to proscription and the interests of relevant office holders would be valid given the range of policy instruments employed by the Spanish state to respond to political terrorism and the consolidation of pluralistic, democratic competition in Spain following the transition to democracy in the 1970s.

Despite these expectations, HB was, in fact, legal for around two decades despite its relationship with ETA. Empirical research found that when HB and its successors were banned in 2003, alternatives had proved ineffective, that banning Batasuna was popular among those likely to vote for mainstream parties, and did not have consequence for government formation. Nevertheless, the fact that this party was legal for such a long time, despite its organic links with a terrorist group, made Spain a ‘deviant case’ in relation to the hypothesis that democracies ban parties that do not unambiguously reject violence.

As Lijphart argues, analysis of the reasons why cases ‘known to deviate from established generalisations’ can contribute to theory development by ‘uncover[ing] relevant additional variables that were not considered previously, or to refine the (operational) definitions of some or all of the variables’ (1971, 692). Further analysis of the Spanish case permitted the formulation of further hypotheses principally drawn from the fields of security studies (Wæver, 1995; Buzan et al., 1998) and new institutionalism (especially Tsebelis, 2002) for further testing, namely:

Democracies ban anti-system parties if these parties have been ‘securitized’ as an existential threat to the state or democratic community.

Democracies ban anti-system parties only if veto players prefer them to do so.

Stage 2: ‘literal’ and ‘theoretical’ replication of finding of the Spanish party ban case

In this book, I undertake the second stage of the research design. I do so by testing the hypotheses listed above in cases of party bans, the legalization of formerly banned parties and failed party bans in further case studies from Spain, the United Kingdom and Germany. Case selection is determined by what Yin (2003) describes as a logic of ‘replication’, rather than a ‘sampling logic’. A ‘logic of replication’ is analogous to multiple experiments in which the researcher seeks to discover more robust findings by testing the results of a single experiment with further experiments, some of which may duplicate the exact conditions of the original experiment, while others might alter one or two experimental conditions to see whether findings will be duplicated (2003, 47). Cases are either ‘literal replications’, that predict similar results to findings of existing studies, or ‘theoretical replications’, that predict contrasting results but for reasons predicted by existing studies (ibid.). In this method, the mode of generalization is ‘analytical generalization’, in which ‘a previously developed theory is used as a template with which to compare the empirical result of the case study’ (ibid., 33). In other words,

if empirical results turn out as predicted … they would provide compelling support for the initial set of propositions. If the cases are in some way contradictory, the initial propositions must be revised and retested with another set of cases.

(Ibid., 47)

To this end, cases of party bans, legalization of parties and failed attempts to ban parties have been selected on the expectation that they will provide either ‘literal’ or ‘theoretical’ replication of findings in the Spanish case. Cases expected to literally replicate the conditions under which HB and its successors were banned in 2003 were the banning of Sinn Féin (1956) and Republican Clubs (1967) in the UK and of the Socialist Reich Party (1952) in Germany. A second set of additional case studies were expected to produce contrasting results but for reasons predicted by the findings of the 2003 HB and successors case study – or theoretical replication – were the legalization of Bildu (2011), Sortu (2012), Republican Clubs (1973) and Sinn Féin (1974). In the legalization cases, it is expected that each of the conditions under which parties are banned would no longer hold. A third set of additional cases, also selected on the expectation they would provide theoretical replication, were two failed attempts to ban the NPD in Germany in 2003 and 2017. In the failed party ban cases, it was expected that this contrasting outcome could be explained by the absence of one or more of the conditions identified in the 2003 HB and successor ban case. The advantage of analysing these three types of party ban cases is that they provide variation on the dependent variable and both positive (party ban) and negative (legalization and failed party ban) cases. Focusing on legalization of banned...

Table of contents

• Cover
• Half Title
• Seriestitle
• Title Page
• Copyright
• Contents
• List of figures
• List of tables
• List of abbreviations
• Introduction: pluralism, tolerance and the proscription of political parties
• 1 Theory and research design: from ‘militant democracy’ to security discourse, institutions and democratic competition
• 2 Ban regimes and banned parties in Spain, the United Kingdom and Germany
• 3 Herri Batasuna and its successors: from ‘terrorist threat’ to carrier of a ‘Copernican shift’ from violence
• 4 Sinn Féin and Republican Clubs: from terrorist pariah to republicanism’s pathway out of violence
• 6 Electoral systems as an alternative to party bans
• 5 The Socialist Reich Party and National Democratic Party of Germany: from ‘militant democracy’ to declining anti- system party threats
• 7 Party bans and government formation
• Conclusion
• Appendix 1: main features of electoral systems in Spain, the United Kingdom and Germany
• Appendix 2: government formation in Spain, the United Kingdom and Germany
• References
• Index
• Back Cover