Defending democracy: a new understanding of the party-banning phenomenon.

• Author: Bligh, Gur
• Position: Introduction through IV. Accommodating the New Categories Within the Weimar Paradigm A. Questioning the Legitimacy of the New Banning Categories, p. 1321-1349

ABSTRACT

Recent years have witnessed a growing tendency among established democracies to battle political extremism by banning extremist parties. This Article explores this phenomenon in its wide-ranging international manifestations. The Article aims to challenge the prevalent paradigm underlying the discussion of party banning and to introduce a new paradigm for conceptualizing the party-banning phenomenon in its current reincarnation. Traditionally, the discussion concerning party banning has been strongly shaped by the traumatic experience of Hitler's rise to power and the collapse of the Weimar Republic. Hence, it has focused upon parties that are overtly opposed to democracy, like communist or fascist parties. Yet, the threats to democracies have changed considerably in recent years, and it appears that the "Weimar scenario" is becoming far less relevant. Instead, contemporary party banning mainly involves parties that incite to hate and discrimination, parties that support violence and terrorism, and parties that challenge the identity of the state. These new banning categories are difficult to understand and justify within the traditional paradigm and require an alternative framework. The new paradigm must focus upon the electoral arena as a source of legitimacy and status rather than merely an instrument for coming to power. This Article links this new legitimacy paradigm to the change in the nature of political parties and to their transformation from primarily representative organizations into "public utilities," or "public service agencies." Once the contours of the legitimacy paradigm are established, this Article proceeds to examine which parties can justifiably be banned within this paradigm and to address its practical implications.

TABLE OF CONTENTS INTRODUCTION II. THE WEIMAR PARADIGM A. Theoretical Basis B. Practical Manifestations III. NEW CATEGORIES OF BANNING A. Incitement to Hate or Discrimination B. Support of Violence C. Challenge to the Identity of the State IV. ACCOMMODATING THE NEW CATEGORIES WITHIN THE WEIMAR PARADIGM A. Questioning the Legitimacy of the New Banning Categories B. Expanding the Weimar Paradigm V. THE LEGITIMACY PARADIGM A. The Purpose of the Banning 1. Legitimacy and the Change in the Role of Parties 2. Framing Effects and the Nature of the "Political Field" 3. Conclusion B. Which Banning Categories Are Justified? VI. APPLYING THE LEGITIMACY PARADIGM A. The Irrelevance of the Probability Standard B. The Evidentiary Question C. The Actual Effects of a Party Ban D. Potential Dangers VII. CONCLUSION I. INTRODUCTION

In May 2010, the Czech Constitutional Court affirmed the decision to ban the Far-Right Workers' Party, the first ideological party ban in the Czech Republic since the fall of Communism. (1) In June 2009, the European Court of Human Rights (ECHR) affirmed the 2003 ban of Batasuna (and two of its predecessors, Herri Batasuna and Euskal Herritarrok) by the Spanish Supreme Court. Batasuna was widely recognized as the political wing of Euskadi Ta Askatasuna (ETA), the Basque terrorist organization. (2) In July 2008, the Turkish Constitutional Court narrowly decided to refrain from banning Turkey's governing party, Justice and Development (AKP), and instead cut its public funding in half and issued a "serious warning" to the party for threatening the country's secular principles.3 In 2003, the German federal government (together with the Bundestag and Bundesrat) attempted to ban the National Democratic Party (NPD), the oldest neo-Nazi party in Germany. Following a preliminary examination, the Federal Constitutional Court authorized the banning proceedings but later denied the banning petition when it discovered that several of NPD's leaders were in fact undercover agents or informers of the German secret service. (4)

These cases are only a few recent examples of an intriguing trend: the banning of extremist political parties. This Article examines this phenomenon in its wide-ranging international manifestations. This Article aims to challenge the prevalent paradigm underlying the discussion of party banning, which is strongly grounded in the tragic experience of the Weimar Republic, and to introduce a new paradigm for explaining the party-banning phenomenon in its current incarnation. On the basis of this new paradigm, this Article will also demarcate the justifiable applications and limits of this controversial practice.

The question of extremist participation in the electoral arena received significant worldwide attention in the 1930s, after the collapse of the Weimar Republic, and in the 1940s and 1950s, in the context of the postwar fear of the return of Fascism and the growing fear of Communism. (5) As fear of Fascism and Communism waned, efforts were made to minimize restrictions upon political speech in most democratic countries. (6) Lately, however, in the context of a resurgence of Far-Right movements in Western Europe and the emergence of ethnic and religious fundamentalist political parties in the Middle East and Europe, party banning has been receiving renewed attention. (7) In recent years, parties claiming to be racist and xenophobic in the Czech Republic, the Netherlands, Germany, Belgium, and Israel were the focus of banning efforts, most of which were successful. (8) Similarly, parties allegedly supporting violence and terrorism have also been the target of banning attempts in Spain, Israel, and Turkey. (9) In 2003, the ECHR upheld the Turkish ban of Refah Partisi (The Welfare Party) (Refah) holding that its Islamic agenda is incompatible with fundamental democratic principles. (10) A later attempt to ban the ruling Islamic party in Turkey was thwarted by the Turkish Constitutional Court. (11)

Although the issue of party banning has typically not been a significant concern in the United States since the 1940s and 1950s, (12) in recent years the issue of party banning has begun to receive growing scholarly attention in the English-speaking world as well. (13) The various discussions concerning party banning have been strongly shaped by the traumatic experience of Hitler's rise to power and the collapse of the Weimar Republic. (14) The memory of this tragic event was crucial in the adoption of party-banning regimes in Germany and other democracies. (15) However, the threats facing democracies today have considerably changed, and it appears that the Weimar scenario is becoming far less relevant. Today, overtly antidemocratic ideologies, such as Fascism or Communism, are largely out of political fashion and do not seem to draw significant support. (16) On the other hand, new challenges have appeared in the form of parties inciting hate or discrimination, parties supporting violence and terrorism, and parties identifying with religious fundamentalist movements. (17) However, despite the change in the nature of the threats facing democracies and a growing recognition of the need to develop an updated understanding of this issue, IS an alternative framework underlying party-banning analysis is still lacking, and the dominant approach continues to be preoccupied with the Weimar scenario. (19)

In discussing the banning of extremist parties, one should clearly distinguish between two related but distinct questions. The first, which has been the main focus of scholarly discussion, is who should be banned--that is, What type of parties can be legitimately banned? A second related but distinct question, which has received far less attention, is what is the purpose of the ban--that is, What threats is the ban trying to address? When dealing with a Weimar scenario, there is an understandable tendency to conflate these two questions because the answer to the first question naturally dictates the answer to the second. In the Weimar context, democratic regimes ban antidemocratic parties, parties that seek to abolish democracy wholesale. The aim of the banning is to prevent the antidemocratic parties from coming to power and implementing their antidemocratic agenda. This traditional understanding of party banning will be referred to as the Weimar paradigm.

Today's threats to democracy represent different challenges. Many Far-Right parties in Western Europe or parties that express support for terrorist organizations do not promote overtly antidemocratic ideologies nor do they stand a real chance of winning an election. (20) In these circumstances, the Weimar paradigm does not offer a sufficient explanation for their banning. Indeed, almost all of the recent cases of party banning can be better understood as attempts to deny certain parties the legitimacy and other benefits that are afforded to political parties in modern democracies rather than as attempts to prevent the total collapse of a democratic regime. In light of this understanding, this Article suggests that the new banning cases are better understood within a new paradigm, which will be referred to as the legitimacy paradigm. This paradigm focuses upon the electoral arena as a source of legitimacy and status rather than merely as an instrument for coming to power. Once the contours of the legitimacy paradigm are established, this Article will examine which parties can justifiably be banned within this paradigm and will address the practical implications of this analysis.

This Article proceeds in five parts. Part II focuses on the controlling Weimar paradigm and its traditional justifications and manifestations. Part III surveys three new banning categories that have gained in prominence in recent years--parties involved in incitement to hate and discrimination, parties that support violence, and parties that challenge the state's identity. Part IV discusses the attempts to...