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Rethinking ‘Militant Democracy’: Democratic Dilemmas in the Age of Populism

Participation
Parties and elections
WS19
Angela Bourne
University of Roskilde
Fernando Casal Bértoa
University of Nottingham

The recent wave of populist successes, symbolized by the vote for Brexit and the victory of Donald Trump in the US but by no means confined to them, poses a challenge to the foundational values and institutions of representative democracy as well as the international postwar order that helped sustain them. In this workshop, we turn to the academic work on ‘militant democracy’, a field emerging in the 1930s principally in response to the rise of fascism, and examine its contemporary relevance for a new era of populism. Rather than focusing on factors explaining the rise of political extremism, the workshop addresses possible responses to political extremism, by state authorities, international organizations and civil society. Adopting an interdisciplinary perspective, it examines the contemporary relevance of the conceptual framework of ‘militant’ democracy and the effect of measures seeking to marginalize political extremists. It also addresses the normative dilemmas and legal challenges posed when democratic communities seek to delimit the range of political projects and forms of political action permissible in the public sphere. The workshop draws on the following three debates in the existing literature: Conceptualizing Militant democracy ‘Militant democracy’ has long been the core concept of research focusing on democratic responses to political extremism (Minkenburg, 2006; Mares, 2010; Bourne, 2012; Capoccia, 2013). Coined by Loewenstein (1937) to capture the range of measures that democratic states could employ to prevent anti-democratic movements - predominantly fascists and communists – from abusing liberal democratic freedoms to destroy those freedoms, such traditional conceptualization has been re-examined in light of recent developments (Klamt, 2007) but also criticized on grounds such as its overly legalistic conception of responses to extremism (Mudde, 2004); its narrow focus on movements that no longer constitute a ‘threat’ to democratic politics (Bligh, 2013); and a tendency for ‘concept-stretching’ when applied to capture responses to new threats like international terrorism (Bourne, 2012). Some have sought to replace it with alternative, more comprehensive concepts such as ‘defensive democracy’ (Capoccia, 2005). Others have sought to reconceptualise it as one of a number of types of democratic response to extremism, including responses of the ‘preventive’ or ‘counter-terror’ state (Sajo, 2012), or a ‘legitimacy paradigm’ that aims to deny extremist parties the legitimacy accorded by access to the electoral arena rather than those aiming to take over the democratic state (Bligh, 2013). The effects and effectiveness of measures of militant democracy This blossoming of conceptual debates has been matched by empirical studies on the attributes of militant democracy, particularly on the broad range of measures democratic states employ to deal with political extremists. These measures include the use of criminal procedures to penalize offensive speech acts, such as Holocaust denial, racism, incitement to hatred or violence (Bleich, 2011) and government sponsored ‘exit programmes’ facilitating individual disassociation from extremist movements; collusion among mainstream parties to exclude extremists from government through use of the ‘cordon sanitaire’, or alternatively their incorporation into governing arrangements to promote moderation or weaken their support base Downs, 2002, 2012; van Spanje, 2010; Bale 2003; the banning of political parties and associations (Bourne, 2012; Casal Bértoa and Bourne, 2016); electoral system reforms designed to marginalize extremists (Norris, 2005 and Carter, 2005); state and civil society sponsored education in democratic values; and state (and international organization) support for anti-extremist civil society groups (Pedahzur, 2004). Existing research tends to provide contradictory accounts of the effects and effectiveness of the measures of militant democracy, particularly the most restrictive kind. On the one hand, it has been argued that measures restricting the political voice of extremist movements (bans, cordon-sanitaire, laws against incitement) may lead to radicalization or increasing readiness to use violence (Minkenberg, 2006; Capoccia, 2005, 59). The effectiveness of such measures may be only temporary if a movement has deep social roots (Downs, 2012; Bleich, 2011; Husbands, 2002, 64). Such mechanisms may not be suitable for ‘civic re-education’ of extremists (Husbands, 2002) and treat the symptoms rather than underlying causes (Pedahzur, 2002, Backes, 2006). Indeed, they may increase the visibility of political extremists and reinforce anti-establishment critiques (Downs, 2012; Bleich, 2011). On the other hand, for those subject to restrictive measures, the ‘cost of claim-making increases across the board and for particular members’ (Tilly, 2005). The measures serve as an ‘act of strategic communication in the public sphere’ at least in part designed to socialize citizens against extremist orientations by rewarding those who refrain from breaking the rule (Koopmans 2005). Party members may face prosecution, unemployment and truncated political careers and restrictive measures may provoke disarray and internal party squabbles (Bleich, 2013, van Donselaar, 2003). Normative dimensions of militant democracy: regulating tolerance and pluralism Decisions by public authorities to marginalize particular political projects undoubtedly raise dilemmas for democratic communities. Measures to marginalize extremist parties, associations, movements and political projects simultaneously challenge foundational democratic commitments to political pluralism, tolerance and rights to free speech and association. At the same time, such measures are purportedly designed to ‘protect’ democracies, usually from groups deemed to undermine the democratic system, challenge core democratic values, or territorial integrity or state security. Indeed, measures of militant democracy – such as banning parties and associations, criminalization of certain speech acts or restricting access to public employment – resemble the hallmarks of authoritarianism. Use of the tools of militant democracy are thus controversial, raising questions not only about the motivations of those who yield them and but also about their longer-term implications for the democratic system itself. Given these implications, it is not, perhaps, surprising that political philosophers and legal scholars have much to contribute to the study of militant democracy. Indeed, legal scholars have traditionally dominated this field with work comparing, classifying and evaluating the nature of legal and constitutional constraints on extremists (Fox and Nolte 2000; Niesen 2002; Klamt, 2007, Theil, 2009). More recently, this includes the study of international norms and the especially work of the European Court of Human Rights, which has developed a robust legal doctrine of militant democracy (Harvey, 2004; Brems, 2006; Macklem, 2012). Similarly, insofar as militant democracy requires difficult choices about whether or not to ‘tolerate the intolerant’, they enter into longstanding political theory debates on tolerance (Locke, 1689; Rawls, 1971, 216-221). Choices for militant democracy instantiate Popper’s ‘paradox of tolerance’, whereby ‘unlimited tolerance must lead to the disappearance of tolerance’ (1966, 265), raising normative questions about the appropriateness of limiting democratic rights linked to freedom of expression and association, as well as political tolerance (Waldron, 1981; Scalon, 2003; Quong, 2004, Kishern, 2014) Gaps in the literature and pertinent research questions Existing research provides a foundations for research on democratic responses to political extremism, including it its more recent incarnation as populism. Nevertheless, there are a number of shortcomings deserving closer scholarly attention. Firstly, we lack systematic empirical knowledge on practices of militant democracy in varying stages of democratic consolidation, among states with different experiences of non-democratic rule and varying constitutional traditions, and studies comparing ‘activist’ states more prepared to take tough measures to marginalize extremists and those adopting more passive stances. As Capoccia (2013) remarks, this lack of empirical knowledge helps explain why so few scholars have plausibly accounted for variation in legal rules and practices democratic states employ in response to political extremism. Furthermore, while the study of militant democracy cuts across various disciplinary fields, there is very little interdisciplinary work. Political scientists tend to ignore the role of the courts and legal political culture as factors shaping the context in which both policy makers and political extremists act. Legal scholars tend to take official rationales for party bans at face value and rarely consider why states take varying legal responses to ostensibly similar kinds of political extremism. Few pay much attention to the way that democratic communities negotiate the normative dilemmas posed by marginalizing political extremists within the public sphere. To these we can add new issues raised in the context of what could be called a global ‘wave’ of populism. These include questions about the appropriateness of a conceptual framework that takes the state and its responses as the principal focus of attention. This is problematic insofar as critiques of globalization, including transnational trade regimes, the legitimacy of supranational governance and the global movement of peoples, constitute a core tenet of populist appeals. In this context, a focus on state-policy making may also be short-sighted because measures to combat populism or at least address their grievances are the focus of international politics and a task assigned to supranational organisations such as the EU. Moreover, while populists such as Marine Le Pen, often position themselves as ‘nationalists’ fighting against ‘globalists’, there may be transnational dimensions in their action repertoires and what some refer to a ‘contagion effect’ in which one movement’s success may encourage that of another elsewhere. In sum, the workshop aims to bring together researchers from various disciplines to address both conceptual and empirical shortcomings of the established literature on militant democracy in a manner that can bring fresh insights on matters of pressing political importance. More specifically, the questions addressed include: • How relevant is the concept of militant democracy today? Can it help us to understand the resilience of democratic states in a context in which populists are in reach of government rather than looking in from the margins of the political system? • Are the traditional tools of militant democracy – party bans, the cordon sanitaire, criminalization of offensive speech or education against extremism – appropriate in a context in which populist leaders may claim to pursue a more ‘authentic’, ‘people-centred’ forms of democratic politics? • What are the effects of measures on militant democracy on established democracies (e.g. democratic quality, or party systems)? Can they contribute to democratization and ‘transitional justice’? Or do they produce a ‘chilling effect’ undermining the foundations of democratic commitments to pluralism and tolerance? • What role can supranational institutions and courts play in responding to political extremists? Can domestic and transnational mobilization citizens, such as those protesting around the world against US president Trump’s policies on the rights of women, immigrants and Muslims, provide a counterpoint to popular support underpinning some of the most successful populist movements? • Why do different states employ different tools to defend themselves against similar challenges to the democratic system? What impact do varying legal traditions and cultures play in accounting for such variation? • Does militant democracy pose a democratic dilemma, as is frequently supposed? What is nature? How ought conflicting objectives of free speech, free association, free movement, on the one hand, be balanced with the goals of protecting the rights of vulnerable citizens and the values of tolerance and pluralism? What are appropriate responses of militant democracy? Should the paradigm of militant democracy be extended to consideration of movements supporting terrorist groups? Ought it extend to the regulation of public expressions of religiosity (such as use of headscarfs?) Who should decide; judges, politicians or citizens? What kinds of procedural guarantees are required? References Backes, U. (2006) Limits of political freedom in democratic constitutional states’, In Totalitarismus and Demokratie, 3(2), p. 265-282. Bale, Time (2003) ‘Cinderella and her Ugly Sisters: The Mainstream and Extreme Right in Europe’s Bipolarising Party Systems’, West European Politics, 26(3), 67-90 Bourne, A (2015) Why Ban Batasuna? Comparative European Politics, 13, 325-344. Bourne, A (2012) The proscription of parties and the problem with ‘militant democracy’, Journal of Comparative Law, 7:1, 196-213. Bligh, Gur (2013) Defending Democracy: A New Understanding of the Party-Banning Phenomenon, Vanderbilt Journal of Transnational Law, 46, 1321-1379. Bleich, Erik (2011) The Freedom to be Racist Oxford: Oxford University press. Brems, Eva (2006) Freedom of Political Association and the Question of Party Closures, in Sadurski, Wojciech (ed) Political Rights Under Stress in 21st century Europe, Oxford University Press: Oxford. Carter, Elisabeth (2005) The extreme right in Western Europe: Success or failure? (Manchester University Press). Capoccia, G (2013) Militant Democracy: The Institutional Bases of Democratic Self-Preservation, Annual Review of Law and Social Sciences, 9, 207-226. Capoccia, Giovanni (2005) Defending Democracy: Reactions to Extremism in Interwar Europe (John Hopkins University Press). Casal Bértoa, F. and Bourne, A (2016) Prescribing democracy? Party proscription and party system stability in Germany, Spain and Turkey, European Journal of Political Research, online. Downs, W (2002) How Effective is the Cordon Sanitaire?, Journal of Conflict and Political Violence, 4(1), p. 32-51. Downs, W (2012) Political Extremism in Democracies: Combatting Intolerance (Houndsmills: Palgrave Macmillan) Harvey, P ‘Militant Democracy and the European Convention on Human Rights’ (2004), European Law Review, 29, 407; Husbands, C (2002) ‘Combatting the Extreme Right with the Instruments of the Constitutional state’, Journal fur Konflict – und gewaltforschung, 4(1), p. 52-73 Kishern, A (2014) A Theory of Militant Democracy (Yale University Press: New Haven) Koopmans, R (2005) ‘Repression and the Public Sphere: Discursive Opportunities for Repression in Germany in the 1990s’ in C. Davenport, H. Johnston, and C. Mueller, eds., Repression and Mobilization (Minneapolis: University of Minnesota Press). Klamt, M. (2007) ‘Militant Democracy and the Democratic Dilemma’ in F. Bruinsma, and D. Nelken (eds) Explorations in Legal Cultures (Reed Business). Loewenstein, K (1937) ‘Militant Democracy and Fundamental Rights II’, The American Political Science Review, 31:4, p. 638-658. Locke, John (1689) A Letter Concerning Toleration. Macklem, P (2012) ‘Guarding the Perimeter: militant democracy and Religious Freedom in Europe’, Constellations, 19:4, p 575-590. Mudde, C (2004) ‘Defending democracy and the extreme right,’ in R Eatwell and C Mudde (eds) Western Democracies and the Extreme Right Challenge (London, Routledge, 2004) Minkenberg, M (2006) Repression and Reaction: Militant democracy and the radical right in Germany and France, Patterns of Prejudice: 40:1, p. 25-44 Niesen, P. (2002) ‘Anti-extremism, negative republicanism, civil society’, German Law Journal, 7, p. 249-286 Norris, P. (2005) Radical Right: Voters and parties in the electoral market, (Cambridge University Press) Popper, K (1966) The Open Society and its Enemies (London: Routledge). Pedahzur, A (2004) ‘The defending democracy and the extreme right: A Comparative Analysis’, in R Eatwell and C Mudde (eds), Western Democracies and the New Extreme Right Challenge (London, Routledge) Quong, J (2004) “The Rights of Unreasonable Citizens”, The Journal of Political Philosophy, 13(3).p. 314-335 Rawls, J (1971) A Theory of Justice (Oxford: Oxford University Press). Sajó, A (ed,) (2004) Militant Democracy (Utrecht: Eleven) Scalon, T. (2003) The Difficulty of Tolerance (Cambridge: Cambridge University Press) Thiel, M (2009) The Militant Democracy Principle in Modern Democracies (Farnham, Surrey, Ashgate). Tilly, C (2005) ‘Repression, Mobilization and Explanation’ in Davenport, C et al, Repression and Mobilisation, University of Minnesota Press. Waldron, J (1981) “A right to do wrong”, Ethics, 92, 21-39; van Spanje, J. (2010). Parties beyond the pale. Why some political parties are ostracized by their competitors while others are not. Comparative European Politics, 8 (3), 354-383.

The workshop develops themes from the Joint Sessions Defending Democracy panel (Salamanca, 2014), but focuses more specifically on conceptual issues, inter-disciplinarity and reflection on militant democracy in the light of recent populist movements successes. The workshop organizers have a strong record of publication in the field. Both have published articles on the topic of party bans in democratizing states (2012) and in Spain (2014, 2015) and their systemic effects (2016) as well as on the concept of militant democracy (2012, 2014). Expressions of interest from leading and young scholars – both from the US and Europe, East and West - have been obtained for participation in the workshop, including those who work on issues of militant democracy and political extremism from various disciplinary and country perspectives. We invite theoretical, normative and empirical (especially comparative) papers on the following questions: Does the concept of ‘militant democracy’ capture contemporary democratic responses to extremism? Are the traditional measure of militant democracy effective and appropriate in the ‘age of populism’? Does ‘militant democracy’ continue to pose a ‘democratic dilemma’? What kinds of procedural guarantees may be required for its implementation? Can supranational institutions and the transnational mobilizations of citizens contribute to ‘militant democracy’? Why do states employ different measures against ostensibly similar kinds of political extremists? Do measures of militant democracy defend democracy or produce a chilling effect on democratic principles? Papers from scholars cutting across various disciplines (e.g. history and politics, politics and law) are especially welcome.

Title Details
Countering the Radical Right in Local Politics View Paper Details
Constitutional Entrenchment Clauses as Measures of Militant Democracy. A Study on Constitutional Review in Europe (1945–2016) View Paper Details
Laclaus’s Theory of Populism and Democracy View Paper Details
Today’s Problems, Yesterday’s Solutions? Authoritarian Legacies and the Anti-Democratic Origins of the Association between Ideological Orientation and Democratic Support View Paper Details
The Effects of News Coverage of Hate Speech Prosecution of Anti-Immigrant Party Leaders on Anti-Immigrant Party Support View Paper Details
Responses to Extremists and the Implications for Extremist Support View Paper Details
Party Bans as an Instrument of Militant Democracy: Under What Conditions do Democracies actually Ban Parties in Practice View Paper Details
Antifa without Fascism: The Reasons behind the Anti-Fascist Movement (working title) View Paper Details
Criminal Liability of Political Parties: A New Instrument of Militant Democracies View Paper Details
Confront Political Radicalism in France and Germany: What are the Effects of Framing Right-Wing Radicalism as a Policy Matter? View Paper Details
The Impact of Hate Speech Prosecution of Anti-immigrant Politicians on Citizens’ Political Support View Paper Details
The Relevance of Historical Experiences for Shaping Responses to Anti-System Actors. Theorization of Militant Democracy View Paper Details
Do Measures of Militant Democracy Contribute to Reduce the Policy Influence of Radical Right Populist Parties? View Paper Details
Instrumentalisation of 'Defence of Democracy' in Poland after 2015 View Paper Details