One of the crucial questions within our liberal democracies is: How can a liberal democracy defend itself against extremist challengers without undermining its own core values?
Walter Warlimont, former head of the German national defense at his trial at Nuremberg. Wikimedia/US Government. Public domain.Unfortunately, academics and politicians seldom address this question, and few states have clear laws about it. The main exception is Germany, which responded to the Weimar trauma by creating a so-called Wehrhafte Demokratie or militant democracy. Simply stated, within a militant democracy there is no political space for extremists (i.e. anti-democrats).
On the other extreme is the United States, which upholds the idea that democracy is a marketplace of ideas and functions the best if all ideas are included. Consequently, the US has traditionally employed a very broad interpretation of freedom of speech, much more radical than other western democracies, even though significant limitations have been introduced since 9/11, most notably referring to speech supporting (jihadist) terrorism.
Most western democracies are closer to the German than the US model, even if they don’t officially consider, let alone legally define, themselves as militant democracies.
Every democracy is confronted with the question of how to defend itself at one time or another. If we limit ourselves to the postwar era, most western democracies have struggled with fascist groups directly after the Second World War, with communist organizations during the Cold War, with far right parties since the 1980s, and with Islamist groups since 9/11.
Almost all states have responded on an ad hoc basis, without much fundamental reflection or public debate. Many of the attempts to ban ‘anti-democratic’ organizations were either irrelevant – i.e. banning groups with little to no political or social relevance, such as the National Democratic Party (NDP) in Austria or the Center Party 86 (CP’86) in the Netherlands – or unsuccessful – such as the attempted bans of the far left Communist Party of Germany (KPD) in the 1950s and the far right National Democratic Party of Germany (NPD) at the beginning of the twenty first century. Holger Apfel, leader of the National Democratic Party of Germany, 2012. Marek Peters/Wikimedia. All rights reserved.
Back on the agenda
This year banning allegedly ‘fascist’ groups is back on the agenda in several European countries. After recovering from the fiasco of 2001-2003, when the case fell apart because the NPD was so deeply infiltrated by intelligence services that the Constitutional Court could not distinguish between party and state, Germany has started a second attempt to ban the NPD. France is considering a ban of the Jewish Defence League (LDJ in France; JDL in rest of world), an international Jewish nationalist-religious organization founded in the United States in the 1960s by the late Rabbi Meir Kahane. Finally, the most prominent case is the extreme right political party Golden Dawn (XA) in Greece, which has attracted between 6 and 9 percent of the national electorate in recent elections. While all cases are different, they all address exactly the same fundamental question: what are the limits of political activism within a liberal democracy?
In the hope of generating a broader and more fundamental discussion about the essential issue of militant democracy, I offer one do and two don’ts of banning political extremism in general, and ‘fascism’ in particular.
Before I do, let me say a few words about my view of liberal democracy. Simply stated, liberal democracy is based on the ideas of popular sovereignty, majority rule, rule of law, and minority protections.
In line with the famous adage of Winston Churchill, I believe that liberal democracy is the least bad form of government available today. This means that I support it, accept that it has flaws, and believe that a better system could be developed in the future. It also means that I think some ideas are better than others, but no idea can lay claim to eternal truth.
Finally, I believe that politics is often conflictual in nature and creates winners and losers. Now let’s move on to the question of how to deal with political extremists.
1. Don’t ban extremist speech!
The protection of the political rights of minorities is one of the key features that sets liberal democracy apart from democracy per se. I limit myself here to political minorities, i.e. groups that hold a minority political opinion, even if the basis of that group and opinion is based on a specific identity (e.g. ethnicity, gender, race, religion, sexuality, etc.).
In contemporary western democracies extremists, i.e. anti-democrats, are political minorities. I argue that extremists, like all (political) minorities, should be allowed to voice their opinions unconditionally, even if their views are not shared by the majority, and therefore not expressed in the state policies. There are several reasons for this.
First of all, I believe that democracy functions best when citizens have optimal information about the views of their fellow citizens. Hence, by having minority views expressed openly and unconstrained, the majority knows what the minority really thinks. They can then decide to take their views into account or to ignore them. Even the latter provides important information for the minority, who know that the majority ignores them rather than simply doesn’t know what they want. If minorities cannot freely express their opinions, either they or some ‘interpreter’ will provide a limited or false opinion – think of the many political commentators reading the minds of the far right voter (“they are not really racist, but want to protest their social marginalization as a consequence of mass immigration”). In both cases the majority does not get accurate or full information and cannot adequately accommodate minority views even if it would want to.
Second, having extremist opinions out in the open forces democrats to justify their positions. The possible benefit of this is not, as is sometimes argued, that an open debate can convince the extremists – at least not the extremist elite. The main benefactor is the democratic majority.
Being challenged politically guards against complacency and tyranny of the majority and helps ensure that it does things for the right reasons. It also explains to people who might not instinctively support the policies, why they are supported, countering the false reasoning that extremists often provide. This can only strengthen trust in the democratic system.
The issue of immigration provides a perfect example of the democratic problems of a censored debate. For decades most western democracies significantly limited the public debate on immigration (and integration) by keeping it off the political agenda and, when that had failed, extending anti-discrimination laws and increasing their enforcement. This lack of debate fuelled ignorance about both the facts of immigration and the motivations of immigration policy. It also led to the ignoring of some of the negative aspects of the developing ‘multicultural society’, such as high crime and high unemployment of certain immigrant groups, which were then presented and explained in an ideological manner by the far right. By the time the democrats finally realized they had to respond in a non-repressive manner, they lacked both convincing arguments and legitimacy among many citizens.
Third, I strongly believe in the therapeutic value of free speech. For at least some citizens it is more important to voice their opinions than to have them implemented in policies. They can accept being overruled by the majority (only) as long as they have a right to express their opinion freely. After all, it is only after your argument has been included in the public debate that you can truly accept that it has not been able to convince the majority of your fellow citizens. Believe me, I know what I’m talking about, as I seem to hold a minority opinion on virtually all political issues.
Fourth, and related, by accepting their speech you give extremists a stake in the liberal democratic system. If extremists truly believe that they are the voice of the people, as the popular slogan of parties like the Flemish Interest (VB) and National Front (FN) goes, they will be willing to play by the democratic rules, i.e. free and fair elections, as long as everyone can contest the elections and express their views freely. This will also strengthen the ‘moderate’ (i.e. non-violent) factions vis-à-vis the ‘extreme’ (i.e. violent) factions within larger extremist groups.
The most striking example of this process is Northern Ireland, where the non-violent political party Sinn Féin (SF) eventually convinced the violent terrorist group Irish Republican Army (IRA) that their shared goal could be advanced more successfully within the British democratic system.
One of the arguments in favor of banning extremist speech is that the state otherwise condones it. For example, a Hungarian court ruled that it was the state’s obligation to ban the far right paramilitary group Hungarian Guard because it would otherwise silently approve of it. But is the opposite from banning really approving?
The Hungarian Guard in Bekescsaba, 2009. Tobi85/Wikimedia. Public domain.
Democracies tolerate various behaviors and opinions that they don’t necessarily approve of. That is the essence of tolerance, a basic value of liberal democracy. In fact, we generally refer to a political regime that bans everything it doesn’t approve of as an autocracy rather than a democracy.
But what if extremists say hurtful things about other groups, other minorities? Don’t they have a right to be protected too? There is no doubt that extremists do say hurtful things about other groups, including minorities, but so do many majorities!
The problem with “hurt”, of course, is that it cannot be objectively measured. Who can prove that the statement that “all immigrants are criminals” is more hurtful to an immigrant than the statement “all FN voters are racists” is to a FN voter? Leaving aside that the level of “hurt” will differ significantly within the categories of “immigrant” and “FN voter”. In other words, political debate will always “hurt” some individuals and, because of the subjectivity of “hurt”, is impossible to legislate against. Therefore, if there is to be any restriction on the political debate, it should be the same as for any other debate, i.e. libel and slander – although I only reluctantly admit to these exceptions.
Finally, what about the argument that “hate speech” can lead to the growth of prejudice among the majority population, thereby giving rise to extremist policies?
Despite the popularity of this claim, there is very little empirical evidence of this actually playing out in contemporary western democracies. For example, it seems far more likely that the rise of far right parties were the consequence rather than the cause of widespread xenophobia within the population.
Prejudice cannot be banned, only the open expression of it can, which might stop it from becoming official policy, but will not protect minorities from day-to-day confrontations with prejudice in less regulated social spaces.
More importantly, the only way to truly overcome prejudice is by convincing people that the prejudice is wrong to hold, not just to express. This can only be achieved by openly engaging these prejudices in political and public debates. If we believe that democrats cannot win this debate, as is often claimed in support of broad anti-discrimination laws, we do not really believe in democracy.
2. Don’t ban democratic participation of extremist groups!
Some democracies are fairly tolerant toward individual extremist speech, but very restrictive on collective extremist political participation. They ban extremist organizations from regular political participation, such as the organization in political groups and parties, demonstrations in the streets, contesting elections, etc.
The main reasons why I oppose this position have been laid out above; notably the argument that this denies extremists a stake in the democratic system and that it weakens the non-violent faction within the extremist camp. Also, it takes away the possibility for a better political system to emerge and develop. After all, liberal democracy is the best system we have... at this point.
The key question here, of course, is what do you do when the extremists come to power by democratic means? After all, as we hear over and over again, Adolf Hitler came to power through (by and large) free and fair elections! Truth is, however, that though Hitler did win some elections, he came to power because other non-democrats enabled him to form a government.
Flag of the Islamic Salvation Front, political party, Algeria, 1989-1992. Wikimedia Commons/Some rights reserved.Within Europe, no extremist party ever won a majority of the votes in free and fair elections. In fact, the case that comes closest, even though the elections were not really free and fair, is the 1991 Algerian legislative election, in which the Islamic Salvation Army (FIS) won 47.3 percent of the vote in the first round. The military consequently canceled the second round, suspended democracy, and the country spiraled into a very bloody civil war.
There are two important lessons to be drawn from these two cases. First, extremists have only come to power through democratic elections in a few exceptional cases. The Weimar Republic was Germany’s first attempt to build a democratic system with an exceptionally open and tolerant constitution. This was done in the aftermath of a devastating war and during an unprecedented economic crisis, while virtually all major political organizations were openly hostile to (liberal) democracy: from the communists to the Nazis and from the Catholics to the German nationalists.
In the early twentieth century only some ten countries in the world could be qualified as democratic, and then only if we overlook the fact that half of the citizenry (women) were excluded from the vote. Today democracy is hegemonic throughout the western world, with over 85 percent of the population supporting democratic values in virtually every country.
If the Nazis were only able to attract roughly one-third of the non-democratic German people during the perfect storm of the Interwar period, we should have much less to fear from extremist parties today. Even more importantly, while Hitler was faced with opposition from other non-democrats, contemporary extremists are opposed by strongly democratic elites and masses.
The second lesson, based on the Algerian case, teaches us that you cannot ‘save’ a democracy by excluding the majority of the population. After all, the essence of any democracy, liberal or otherwise, is popular sovereignty and majority rule. Once a majority of the people does not support democracy, the only options left are autocratic.
This is not to say that the differences between the various autocratic options are irrelevant, for instance between Plato’s philosopher king or Germany’s genocidal Nazis. But the democratic option is no longer on the table. Obviously this also means that, should extremists ever come to power through free and fair elections in an established democracy, democrats are no longer beholden to regain power by democratic rules.
3. Do ban intrinsically violent extremist groups!
There is only one legitimate reason to ban political organizations and that is the use of violence.
This is, in fact, an aspect that is mentioned in the discussions in all three countries that are currently investigating the possibility of a ban. The German NPD ban was rejuvenated by the discovery of the National Socialist Underground, a neo-Nazi terrorist organization, and the dismal handling of its terrorism by the German state.
While the link between the NPD and violence is relatively tenuous, it is clearer in the French case. LDJ members have been involved in several violent actions and recently two members were imprisoned for placing a bomb under the car of an anti-Zionist journalist in 2012. Protestors hold signs against the LDJ and against support of Israel from the French government. Nicola Galvagni/Demotix. All rights reserved.
In the case of Golden Dawn the link is the strongest, as state investigators allege that the party actually consists of two separate structures: one open and essentially aimed at contesting elections and one hidden and involved in a violent campaign against political opponents.
To ban an extremist group the violence should be intrinsic to the group. In other words, the character of the group has to change fundamentally once the element of violence is removed.
This is very often not the case with extremist groups. For example, the Dutch CP’86 was banned (in part) because of its link to violence, even though it had been low level and sporadic, and mainly linked to individual members, not the leadership, let alone the organization as such. The same seems to be true for the NPD.
The LDJ could be a less clear-cut case, given the violent history of JDL groups in other parts of the world (notably Israel and the US), as well as the more sustained campaigns involving violence of the LDJ itself. That said, there seems to be no proof that violence is intrinsic to the organization. For example, many violent incidents are related to non-violent demonstrations, as a consequence of interactions with (violent) counter-demonstrators or with the police.
The only group that seems to fit this criterion well is Golden Dawn in Greece. While here much violence is also linked to specific activities and members, there is more. This is what a senior party member stated in an interview with the Greek newspaper To Vima:
“At Golden Dawn we have a full military structure with at least 3,000 people ready for everything! We have about 50 phalanxes for street fights and about as many 6-man commando strike forces for organized attacks, under the guidance of three organization members. The strike forces handle special attacks against immigrants or reprisals against enemies of the organization. Whatever that might mean.”
If this turns out to be true, Golden Dawn is both a political party and a terrorist paramilitary unit in one. This means that violence is indeed intrinsic to Golden Dawn as an organization, and it should therefore be banned.
Golden Dawn leaders and lawmakers arrested for criminal association for murder, assault, illegal weapons and several other crimes, September, 2013. Wassilis Aswestopoulos/Demotix. All rights reserved.
At the same time, if a new party (e.g. National Dawn) would be founded that is an exact copy of Golden Dawn, i.e. openly anti-democratic and only slightly-veiled neo-Nazi, but without the terrorist paramilitary unit, it should be allowed to exist and contest elections.
A slightly more problematic situation exists in Hungary, where the Movement for a Better Hungary (Jobbik), a political party, is closely linked to the now banned Hungarian Guard, an unarmed paramilitary organization responsible for intimidation and violence, most notably against the Roma minority in the East of the country. While the connections between the two are extremely close – for example, Jobbik party leader Gabor Vona was a co-founder of the Hungarian Guard – these are legally two separate political organizations. Consequently, even if the Hungarian state would conclude that violence is intrinsic to the Hungarian Guard, this would not automatically mean that the same conclusion can be drawn for Jobbik, as some have suggested.
In short, a key feature of liberal democracy is that it tolerates, not necessarily approves, its political opponents. It is based on the rule of the people, which presupposes a trust in at least the majority of those people. This again means a trust in their ability to choose, in majority, the democratic options in free and fair elections. Letting everyone speak and organize, including extremists, strengthens liberal democracy by giving everyone both a voice and a stake in the system. It guards against complacency and tyranny of the majority and keeps the possibility open that an even better system could emerge.
The only price we should ask of everyone, extremists and democrats alike, is that they play by the democratic rules, i.e. realizing your political ambitions exclusively by non-violent means.