The 'Militant Democracy' Principle in Modern Democracies

Markus Thiel, Markus Thiel

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317024033
• Edition: 1
• Topic: Diritto
• Subtopic: Giurisprudenza

This collection provides an up-to-date analysis of key country approaches to Militant Democracy. Featuring contributions from some of the key people working in this area, including Mark Tushnet and Helen Irving, each chapter presents a stocktaking of the legal measures to protect the democracy against its enemies within. In addition to providing a description of the country's view of Militant Democracy and the current situation, it also examines the legal and political provisions to defend the democratic structure against attacks. The discussion also presents proposals for the development of the Militant Democracy principle or its alternatives in policy and legal practice. In the final chapter the editor compares the different arrangements and formulates a minimum consensus as to what measures are indispensable to protect a democracy. Highly topical, this book is a valuable resource for students, academics and policy-makers concerned with democratic principles.

Chapter 1
Introduction

Markus Thiel

A Weak Flank of Democracy – Vital Questions of Democratic Self-Defence

Democratic systems frequently come under fire. Their very existence is threatened by acts of terrorism committed by separatists; political extremists from the extreme right or left; ‘enemies’ of the democracy pulling the strings behind the scenes; agitating in the underground; partaking in the political process in disguise; or even openly fighting the present political system. In addition to these menaces ‘from within’,1 democratic states (and the so-called ‘Western’ model of democracy in general) are endangered by terrorist attacks ‘from the outside’, for example, by fundamentalist followers of a radical persuasion of Islam.

Some democracies declare themselves under siege or at war,2 taking steps to defend against such threats. Defensive measures promoting homeland security often have negative effects on the rights and freedoms of the people: immigration control; intensified security checks at airports; video surveillance of public places and public transport vehicles; automatic vehicle monitoring; biometric control devices; individual observation; or sneaking access to electronic data processing systems and personal computers. This list could be continued almost endlessly, and it is understandable that individuals feel controlled, hassled or threatened by such measures. Regarding internal security aspects (which cannot be separated accurately from questions of external security anymore), these issues culminate in the old question of the balancing of freedom and security. The traditional dilemma of a state who is expected to guarantee security, on the one hand, and who, on the other hand, may face legal action from individuals by trying to enforce security.

But, according to the most recent development in democratic theory, freedom and security cannot be understood as mere antipodes. The freedoms people have become so fond of require the perpetuation of the democratic system, including fundamental rights and freedoms and, for example, the endurance of the rule of law. ‘Constitutional comfort’ is dependent on a certain level of security. Many critics of security measures ignore the fact that the aim of, for example, Islamist terrorists3 is not only to abolish states and their institutions, but to defeat the democratic legal order altogether and to replace it with a theocratic regime (including the Sharia law) contradictory to the free democratic order or at least characterized by a restrictive attitude towards certain fundamental rights and freedoms. Human rights and the rule of law are challenged by the Sharia law, although its legitimate status in Islam is highly controversial. Offences by fundamentalists are directed not only against the abstract democratic idea of the state, but against real democratic states with real legal systems and real guarantees of personal freedoms. As Karl Loewenstein has pointed out, the authoritarian enemies of the constitution try to substitute ‘emotionalism’ for the rule of law, which must lead to the decline of basic rights and liberties. On the other hand, security is not only a function of the state using its ‘monopoly of coercion’ and penal power, but is regarded – for example, in Germany – as a task and a duty the state cannot completely neglect, delegate, privatize or give up.4

Hence, a democratic state may have to defend at least its very existence on behalf of its citizen. The legitimacy and range of self-defence is, therefore, a vital question of every democratic system. It can be ‘traced back to the very beginning of democratic theory itself’ (Pfersmann 2004: 47).

As a matter of course, this applies to any state with any form of governance. However, only in a democracy the balancing of freedom and security, and the question of whether enemies of the democracy are allowed to use democratic structures and rights to destroy it (the ‘weak flank’ of every liberal democracy) culminate in the dilemma and debate around the idea of a ‘militant democracy’. The essential problem here is the choice between the ‘open democracy’ or a democracy constituting (at least) a ‘minimal stability’ (Pfersmann 2004: 53 et seq.), which leads to the question as to whether the democracy should actively fight efforts using the ‘democratic framework’ to abolish the democratic system or not.5 This democratic dilemma has not been satisfactorily solved yet (and it is to be feared that a generally accepted solution cannot be found in a pluralistic, liberal and ‘majoritarian’ democratic system at all).

The Birth of a Project – A Sort of ‘Constitutional Curiosity’

In 2003, I edited and published a book about the ‘militant democracy’ principle in German constitutional and sub-constitutional law; a book entitled ‘Wehrhafte Demokratie. Beiträge über die Regelungen zum Schutze der freiheitlichen demokratischen Grundordnung’.6 It contains several papers dealing with a wide range of topics closely connected to the protection of Germany’s constitutional order from threats. Topics covered include, for example, the treatment of ‘enemies’ of the constitution in public services; the provisions for a ‘state of emergency’; regulations to protect the constitutional order in criminal law; the administrative protective measures of the intelligence services; the deployment abroad of the Bundeswehr (military forces); irrevocable elements of the German Grundgesetz (Basic Law); the forfeiture of fundamental rights (Article 18 of the German Basic Law); and the banning of extremist political parties (Article 21 Section 2 of the Basic Law). What seemed to be a ‘spotty’, loose synopsis of heterogeneous legal requirements and provisions turned out to be manifestations of an overarching constitutional ‘militant democracy’ principle, derived from these regulations especially by the Bundesverfassungsgericht (Federal Constutional Court) in a number of eminent, yet controversial judgments.

From the insights of these studies dealing with the instruments and measures in which the ‘militant democracy’ principle becomes apparent, the question emerges as to whether Germany is an ‘isolated case’ or if other democracies could be qualified as ‘militant’ as well. Is there an affinity with or disapproval of such a principle in modern democracies’ constitutions and legal systems? And, if a constitutional militancy principle is not acknowledged in a country, are there at least legal and political provisions to defend the democratic structure against attacks? Even if a democratic system does not agree with the general idea of a ‘militant democracy’ as an argument and criterion in weighing up legal positions (for example, in Germany – the fundamental rights of an extremist public servant against the interests of the state to maintain its function), they may have some kind of regulations to cope with dangers that threaten the fundamental democratic order ‘from within’. Where such regulations do not exist, it would be interesting to learn about how and why alternative ways are expected to secure a sufficient level of prevention – for example, why a society trusts more in the self-regulative powers of election than in judicial proceedings to prohibit or dissolve right- or left-extremist political parties.

After analysing the status quo of ‘militancy’ in diverse countries, the final step is an examination of whether the idea of a ‘militant democracy’ is (or should be) a ubiquitous principle, valid in every democratic country, as a kind of ‘constitutional common feature’ or a consensus in democratic theory, or if at least some ‘core elements’ of militancy could be identified in the different legal systems. For this purpose, I initiated this project and invited scholars of constitutional law, democratic theory and political sciences from a number of countries around the world to contribute.

A Closer Look – The State of Research

‘Militant democracy’ has been dealt with in several monographs and articles.7 But publications using a wider, comparative or international approach are rare.8 Most essays and books cover the ‘militancy’ problem only in respect of a single country, considering ‘transboundary’ aspects in historical retrospection at best, and – in that case – predominantly by mentioning the scholarly activities of emigrants Karl Loewenstein and Karl Mannheim (as the originators of the term, if not the idea, of the ‘militant democracy’) or the Weimar experiences and spectres of the German Nazi past.

In recent years, the topic of militancy has become a broad-front matter of interest among scholars of jurisprudence and political science.9 This interest was boosted by the fact that the democratic world became aware of the novel threats posed by religious fundamentalists of a new generation.10 Issues of internal and external security, converging in a so-called new ‘paradigm of security’, were intensively debated. The question of democratic self-defence is only a sub-area of this overarching topic. As a scholarly opus containing a rich diversity of papers concerning the ‘militant democracy’, the book of the same title, edited by András Sajó in 2004, should be mentioned (Sajó 2004a). It is, according to the back cover, a ‘collection of contributions by leading scholars on theoretical and contemporary problems of militant democracy’, and provides – besides the essays by Karl Loewenstein that could be called the ‘cradle’ of the term – a bundle of articles illuminating various aspects (political parties, anti-terrorism, ‘militancy’ in ‘transitional democracies’),11 theoretical groundwork12 and the question of ‘militancy’ in selected countries (for example, Israel and Spain).13

It can be concluded that several aspects of the ‘militant democracy’ have been examined thoroughly, but – as far as can be seen – a more comprehensive study, attempting to develop a rudimental basis for a theory of the ‘militant democracy’ and with a comparative approach based on status reports of a selection of countries, is still missing.14

The Pitfall of Comparison – Methodical Remarks

Comparison is one of the legal scholar’s few digging fields for new discoveries. In recent years, an increasing interest in comparative law, especially in the field of constitutional law, can be observed.15 This is based to some extent on the need for more comprehensive inquiries regarding the advance of supranational and international institutions and regulations, which revert to the national systems (Möllers 2008: 116). In addition to that, a general discomfort with a ‘nationalist’ approach to constitutional law, history and theory is spreading.16

Although the term of ‘comparative law’ is not absolutely clear and understood uniformly,17 it can be accepted as a basic principle that only such institutions, regulations and other legal phenomena can be compared that fulfill similar tasks and functions. From this principle, other cornerstones of comparative jurisprudence emanate: the selection of the legal systems to compare; the scope of the analysis; and the systematization (Zweigert and Kötz 1996: 33). As ‘form follows function’, a comparative study in constitutional law and democratic theory is based on the definition of a problem (or a complex of problems).

This may cause some difficulty here because comparative studies run the risk of being biased by the authors’ perception, which is necessarily rooted in their national legal systems.18 In particular, the term ‘militant democracy’, coined by a German émigré, can only be conceived against the background of the historical experiences with fascist movements. Therefore, the ‘militant democracy’ issue is intimately connected with the particular country’s history, its coming to terms with a (totalitarian) past and the formation of constitutional law, legal and political theory. This fact complicates the comparative analysis.

In addition, comparative legal studies are often confronted with further methodological barriers. First of all, such an approach inevitably has to be highly selective. As Zweigert and Kötz have stated, the selection of countries to be compared must not be arbitrary (Zweigert and Kötz 1996: 40). This book contains country reports on a dozen democratic countries and leaves aside many more, unfortunately, even those where an analysis of the democratic systems would have been intriguing. But since it is impossible to include a contribution from every democratic country, there had to be a selection, and so this book focuses mainly on European and North American countries, with the addition of Chile, Israel and Japan.19

The countries chosen for this study are representative for various reasons. They have an assured democratic tradition, although many of them have encountered several threats to their very existence and their fundamental constitutional order over the last decades. Most of the countries have developed quite different ways of coping with these threats: the empowerment of measures against individuals and groups threatening the democratic system, the state as a whole or single institutions of the state. And every chosen country provides a stable legal order (including an elaborate constitutional jurisdiction) able to confine the said measures – by restricting legislative powers or ‘dyking’ the executive’s competences – to prevent the state and its institutions from becoming too authoritarian and from neglecting or excessively curtailing individual rights and freedoms guaranteed by constitutional law.

Some may feel that the approach of this book is too ‘eurocentric’, and that African, Asian and Latin American countries should have been awarded more space and attention. It can be conceded that a focus on Europe shortens the quantum of possible insights, and that country reports especially from ‘younger’ democracies, democracies ‘in transition’ or emerging democracies would be of great interest. However, with all due respect, some of these countries may not provide a level of ‘stabilized’ constitutional theory necessary for a project like this. In addition, not all of those requested to contribute to this study were able to do so, which leaves a small number of gaps that unfortunately could not be filled.

Another objection may be that one compares – to say it with a proverb – apples and oranges. The initial enthusiasm may be dampened when the scholar undertaking comparative studies becomes aware that even such superficially clear terms as ‘the state’, ‘fundamental rights’ and ‘society’ dramatically differ in comprehension, depending on layers of preconceptions of, for example, historical; philosophical; political; jurisprudential; or sociological provenance. The idea of the ‘state...