Party Bans Research Articles

Why and when democracies ban political parties: a classification of democratic state orientations to party bans

Defending democracy requires undemocratic steps; one of the most radical is the prohibition of political parties. The functioning of political parties is fundamental to healthy and pluralistic democracies. Thus, their exclusion from the political process raises a severe dilemma for a democratic society, which has to address sufficiently why and when a political competitor can legitimately be kicked out of the political arena. The latter is crucially important because of the rise of far-right parties and attempts by authoritarians to infiltrate the domestic political competition of democratic countries. The approaches of various national courts in cases concerning the prohibition of political parties are far from uniform. Experiences in Spain, Ukraine, the UK and, eventually, Germany demonstrate significant contrasts regarding the political theory and legal rationale for prohibition. While democracy is a universal value for a pan-European context, the courts set different limits of democratic tolerance for guarding it. The paper offers a new paradigm that explains why and when democracies ban political parties. The classification of democratic state orientation to party bans consists of liberal, institutional and militant models, which illustrate different concepts around finding the balance between personal rights on the one hand and the interests of a democratic society on the other.

Between militant democracy and citizen vigilantism: Using citizens’ assemblies to keep parties democratic

Abstract The essential role of parties in democracies makes it important to keep them democratic. This article argues for sortition-based citizens’ assemblies (CAs) organized in and by civil society to formulate democratic standards for political parties to follow, to evaluate them individually and to criticize them publicly if they do not. This is a third and potentially complementary way to keeping parties democratic, placed between militant democracy on the one hand and citizen vigilantism on the other. Militant democracy is challenged by the fact that few democratically problematic parties are ostensibly anti-democratic and therefore likely to fall under the legal criteria for issuing party bans and other legal sanctions. Militant democratic measures are also likely to be ineffective and are vulnerable to abuse. Citizen vigilantism, whereby active democratic citizens take on the responsibility for protecting democracy, deals better with the ambiguous nature of democratically problematic parties but suffers from a lack of democratic authorization and clear standards of critique. While not perfect, the proposed model remedies many of the shortcomings of both approaches. Contributing to an emerging literature on CAs as instruments in the protection of democracy, the article evaluates the model’s normative justifiability, feasibility and likely effectiveness.

The Proscription Paradox: Banning Parties Based on Threshold Requirements and Electoral Volatility in Latin America

ABSTRACTBanning political parties is an extreme institutional measure that democracies tend to use sparingly. Nevertheless, Latin American countries frequently proscribe their parties through rules that activate dissolution for not reaching a certain number of votes or seats in an election. Such rules are expected to stabilize and simplify party systems. However, a competing theory suggests that such rules instead promote electoral volatility by injecting political uncertainty into the party system through cyclical refoundation of extinct parties and the mechanical effects of parties’ exits. Attempting to resolve this paradox, this analysis tests the effect of dissolution thresholds on electoral volatility in all Latin American democratic elections since 1980. Party bans based on dissolution thresholds are found to promote electoral volatility, which bears implications for democratic governance.

The Role of Judicial Craft in Improving Democracy’s Resilience: The Case of Party Bans in Czechia, Hungary and Slovakia

The unsuccessful petition to ban Slovakia’s extreme right parliamentary party – the value of focusing on judicial craft for studies of militant democracy and courts – statutory frameworks as intervening variables and their overview in Czechia, Hungary and Slovakia – key components of judicial craft endogenous to courts: consistency, legal reasoning skills, problem-solving abilities, creativity – the cases of Workers’ Party (Czechia), Slovak Togetherness–National Party (Slovakia), People’s Party Our Slovakia (Slovakia) and Hungarian Guard (Hungary) – the decisions of the Czech Supreme Administrative Court (2009) and the Slovak Supreme Court (2019) – re-evaluating what counts as ‘success’ with party bans: judicial craft affects the effectiveness of the statutory framework for party bans – a court-centric perspective on militant democracy when courts face illiberal assaults

The elitist defence of democracy against populists using education and money

ABSTRACT Democratic backsliding and autocratisation tendencies raise the question of what liberal democracy can do to defend itself. Of particular concern are populists, who are often perceived to have an ambiguous commitment to the principles of liberal democracy. The defence of liberal democracy has often been conceived in legal terms, for example, with party bans and propaganda restrictions. However, legal means are criticized for being elitist because they are directed against irrational and emotionally driven masses and because they allegedly violate the very values that they are supposed to protect by limiting the democratic freedom of some groups. Instead, critics have proposed cultural and socio-economic means as non-elitist and non-exclusionary alternatives more in line with the values of democracy. This article discusses whether the employment of cultural and socio-economic means against groups – in casu populists – who are perceived as a challenge to liberal democracy can avoid the charge of elitism and exclusion by analysing whether these means are consistent with the publicity constraint. It finds that the use of education and money to defend democracy against such groups relies on a form of elitism and exclusion similar to the one that the defence by legal means is charged with.

Militant democracy and successors to authoritarian ruling parties in post-1945 West Germany and Italy

ABSTRACT This article contributes to the empirical literature on militant democracy and successor party bans by comparing post-1945 West Germany and Italy. These countries shared a right-authoritarian past but their tolerance of right-authoritarian parties differed. Looking for reasons behind the ban of the Sozialistische Reichspartei Deutschlands and the survival of the Movimento sociale italiano, this study tests five conditions: (1) ambiguity towards – if not open approval of – violence; (2) absence of effective alternatives to proscription; (3) securitization; (4) veto player agreement; (5) veto player incentives. We find that securitization is a necessary condition for proscription, whereas approval of violence is not. While neither the presence of effective alternatives nor veto player incentives relate to ban outcomes in a consistent pattern, veto player support remains crucial. Given the findings from this comparative study, we conclude that successor party bans should not belong to a separate category of militant democracy.

Greece: A Procedural Defence of Democracy against the Golden Dawn

Greece not a militant democracy – Constitution rejects party bans – Challenge posed by neo-Nazi party Golden Dawn – Preference for a procedural approach – Not as passive as previously thought – Proactive use of regular law – Golden Dawn charged for being a criminal organisation disguised as a political party – Questions about the political timing of the trial – Importance of judiciary independence – Why not a terrorist organization – Suspension of party funding and other restrictions against Golden Dawn – Actions by state institutions as opposed to local and civil society – How to distinguish between procedural- and militant-democratic initiatives – Political rights of convicted party leaders – Benefits and risks of procedural model

Militant Democracy and the Pre-emptive Constitution: From Party Bans to Hardened Term Limits

We explore the concept of militant democracy in the context of what appear to be persistent threats to the democratic order. We begin with a reconstruction of the concept with the intention of distinguishing and identifying its historical manifestations. We trace and document two constitutional devices that exhibit the pre-emption and illiberalism that characterizes militant democracy. The first device---party restrictions---is the prototypical example of the concept and is designed to pre-empt extremist intimidation. The second example---hardened term limits---is designed to pre-empt executive intimidation. The latter form of bullying may be the most relevant threat, at least in modern Latin America and Africa. In one view, term-limit evasion accelerates a pernicious negative cycle in which constitutional non-compliance begets constitutional weakness, which in turn begets subsequent non-compliance. Such a negative feedback loop is a core problem in law. Militant democracy, the logic of which implies the entrenchment and protection of term limits, would potentially disrupt such negative cycles. The concept could also be useful as an intellectual defense of seemingly non-democratic means of protecting democracy.

민주주의 위기의 원인과 대안에 대한 이론적 고찰: 국민투표, 사법심사권, 그리고 정당해산제도를 중심으로

민주주의의 위기는 최근 학계와 정치권 모두에서 가장 뜨겁게 논의되는 주제 중 하나이다. 본 글에서는 현대의 대의 민주주의가 갖는 위기의 근원을 정치 엘리트 수준의 양극화, 포퓰리즘의 대두, 그리고 민주주의 체제에 대한 지지 하락으로 진단하고, 각각의 대안으로 고려될 수 있는 민주주의의 유형으로 직접 민주주의, 실질적 민주주의, 그리고 전투적 민주주의에 대한 이론적 논의를 살펴보았다. 이어서 각각의 민주주의 유형을 대표하는 제도인 국민투표, 사법심사권, 그리고 정당해산제도에 대한 기존의 논의를, 각 제도가 지닌 장점과 한계를 중심으로 정리하였다. 이러한 찬반 양론에 대한 절충안을 살펴본 결과, 모든 제도의 논의에서 공통적으로 지목하고 있는 해법을 발견할 수 있었다. 이는 첫째로 그 사회가 속한 정치적 맥락과 사안의 특성에 따라 민주주의에 대한 접근과 운용이 달라져야 한다는 것이고, 둘째로 숙의 민주주의의 요소를 매 의사결정의 단계에서 강화해야 한다는 것이다.

Ethnic Party Bans from a Minority Rights Perspective

Ethnic Party Bans from a Minority Rights Perspective

Explaining Citizen Attitudes to Strategies of Democratic Defense in Europe: A Resource in Responses to Contemporary Challenges to Liberal Democracy?

AbstractIt has long been speculated that banning parties from participation in elections may be counterproductive because it might provoke societal resistance. Using the European Social Survey (2002–2010; N = 195,405), our study suggests otherwise. We demonstrate that party bans enjoy the legitimacy of majority support. This holds true irrespective of countries’ resilience to extremist influences (or lack thereof) resulting from “institutional intolerance,” electoral entry barriers and authoritarian legacies. Individual orientations toward the democratic establishment do matter to a small extent: citizens with authoritarian tendencies and low system support are less supportive, while this is less so for citizens with extremist ideological orientations. Even though party bans entail significant democratic dilemmas, this study reveals societal resources supportive of repressive responses to extremist parties.

Constraining political extremism and legal revolution

Recently, extremist ‘populist’ parties have succeeded in obtaining large enough democratic electoral mandates both to legally make substantive changes to the law and constitution and to legally eliminate avenues to challenge their control over the government. Extremists place committed liberal democrats in an awkward position as they work to legally revolutionize their constitutions and turn them into ‘illiberal democracies’. This article analyses political responses to this problem. It argues that the twin phenomena of legal revolution and illiberal democracy reveal a latent tension between the constitutional commitments to democracy and liberalism, that is, the equal chance to have one’s political goals enacted into law and individual basic rights. Political extremists make the latent tension real when they use the procedures of democratic legal change to abrogate constitutional commitments to liberalism, among other things. Although the two commitments normally coexist side by side, exceptional times raise an existential dilemma for liberal democracies: is it constitutional to democratically amend liberalism out of the constitution? After analysing the moral legitimacy of both the democratic and liberal arguments, this article concludes that liberal constitutionalism is constitutive of genuine democracy. In other words, it is unconstitutional to abrogate basic liberal commitments and it is legitimate to adopt constitutional mechanisms to guarantee liberalism – even if it means constraining democracy to do so. This article then situates ‘constrained democracy’ within the liberal current as a way to conceive of and respond to this pressing problem. It concludes by discussing four constitutional mechanisms – inspired by the German Grundgesetz – to guarantee liberalism: unambiguous lexically prior commitment to liberalism, limits on negative majorities, the eternity clause and party bans. It concludes that constrained democracy is an important constitutional guarantee of liberal democracy and that the four mechanisms, among others, are essential to enact constrained democracy.

Mixed Signals of Europeanization: Revisiting the NPD Decision in Light of the European Court of Human Rights' Jurisprudence

The Article revisits the German Federal Constitutional Court's NPD decision and the concept of militant democracy regarding party bans in German constitutional law. It argues that the Court's new definition of the free democratic basic order approximates its jurisprudence to the standards developed by the European Court of Human Rights. The Article also compares the German and European standards for party bans. It assesses the respective required risks for democracy that a party needs to pose in order to justify a party ban. In this respect, it is argued that the German standard—though elevated—still falls short of the threshold under European human rights law. Finally, the NPD's anti-constitutional—but not unconstitutional—character is examined, and a recent constitutional amendment to exclude extremist political parties from party financing is evaluated.

Germany’s New Militant Democracy Regime: National Democratic Party II and the German Federal Constitutional Court’s ‘Potentiality’ Criterion for Party Bans

Germany’s New Militant Democracy Regime: <i>National Democratic Party II</i> and the German Federal Constitutional Court’s ‘Potentiality’ Criterion for Party Bans

Utilization of Karnaugh Maps in Multi-Value Qualitative Comparative Analysis

A recent debate in the literature of Qualitative Comparative Analysis (QCA) concerns the potentials and pitfalls of the multi-value variant (mvQCA) in comparison with the more established crisp-set QCA (csQCA) and fuzzy-set QCA (fsQCA) variants. So far, the mvQCA methodology has been implemented either algebraically or via specific software tools such as TOSMANA. The main goal of this paper is to enhance the mvQCA methodology through the utilization of several varieties of Karnaugh maps including (a) the Conventional Karnaugh Map (CKM), (b) the Multi-Valued Karnaugh Map (MVKM), and (c) the Variable-Entered Karnaugh Map (VEKM). The paper offers a tutorial exposition of each of these maps in terms of two recently-published problems concerning the legal provision (introduction) and implementation of party bans in sub-Saharan Africa. Results obtained via various map techniques agree exactly among themselves, and are generally more compact than those obtained earlier via elementary algebraic manipulations, or even via software tools. We show, by way of example, that coding multi-valued variables by binary ones has a harmful primary effect of increasing the input domain. This effect is partially counterbalanced by a (contrarily to common belief) beneficial secondary effect of introducing genuine don’t-care configurations. We also address the issue of unresolved contradictory configurations, and propose two strategies to cope with them. The maps used tackle seven binary variables (or their equivalent), a number beyond the typical map limit of six variables. They are used to produce not only the minimal sum of a Boolean function but the complete sum as well. Though this paper is basically intended as a contribution to mvQCA methodology, it is also of significant utility in any field that demands the use of the Karnaugh map. It serves as a unification/exposition of three fundamental variants of the map, and has a definite pedagogical advantage for the wide spectrum of map users.

Mapping ‘Militant Democracy’: Variation in Party Ban Practices in European Democracies (1945-2015)

Introduction – Explaining party bans, political and legal contexts – Banned parties and banning states in Europe, the political context – Nature of banned parties – Nature of banning states – Tolerant and intolerant democracies, the legal context – Evolving rationales for party bans and procedures for proscription – Contemporary rationales for banning parties – Anti-democratic ideology – Non-democratic internal organisation – Party names – Party orientation to violence – Protecting the present order – Evolving rationales for party bans – Weimar and legitimacy paradigms – Conclusions, directions for future research

Electoral systems, ethnic diversity and party systems in developing democracies

Party system nationalization is often viewed as critical to national unity, the production of public goods, and may have implications for democratic success. This paper assesses the impact of ethnic diversity and electoral rules in 74 economically developing democracies. Contrary to past studies, majoritarian electoral systems heighten the tendency of ethnic diversity to reduce nationalization while proportional representation greatly reduces its impact. Presidential systems produce higher levels of nationalization than parliamentary systems but the effect reverses as the number of presidential candidates increases. Though ethnic party bans may increase nationalization, ballot access requirements, the level of freedom, and relative prosperity have no effect.

Prescribing democracy? Party proscription and party system stability in Germany, Spain and Turkey

AbstractWhen democracies ban political parties, one of the central issues that usually emerges in both public and academic debate concerns the effects of proscription. Some argue that proscription may lead to radicalisation, a growth of militancy and readiness to use violence. Others argue that, in the long run, banning parties may damage the foundations of a democratic polity as the ban may be interpreted as a silent weakening of democratic rights in the state and therefore a failure of democracy itself. However, and notwithstanding its centrality for the conduct of democratic politics, the impact of party bans on party system development has remained mostly under‐researched. Trying to address this lacuna, and employing a new dataset of banned parties in Europe between 1945 and 2015, the study reported in this article compares the effects of party ban regulation on party system stability in three different arenas: electoral, parliamentary and governmental. In particular, the impact of party proscription on electoral volatility, fragmentation and closure is examined in three countries: Turkey, Germany and Spain. Using examples both at national and regional (e.g., Basque Country, Navarre, Saxony) levels, and making use of survey data when available, it is found that the banning of a relevant political party not only increases volatility and reduces fragmentation, but also alters the existing structure of competition at the time of government formation. Likewise, the empirical analysis also suggests a number of alternative hypotheses (i.e., organisational succession, electoral system) when trying to explain why the outcomes of some cases within each country deviate from theoretical expectations. Finally, the article also examines the phenomenon of ‘non‐banning’ and how the failure of attempts to ban political parties might affect the development of a party system.

Emotional Politics and the 'Militant Turn' of the European Court of Human Rights. Assessing Democratic Transitions Through the Case of Party Bans: The Refah Partisi

Emotional Politics and the 'Militant Turn' of the European Court of Human Rights. Assessing Democratic Transitions Through the Case of Party Bans: The Refah Partisi

Don't Start the Party: Assessing the Electoral Effect of Legal Provisions Impeding Ethnoregional Parties

Around the world “free” democracies actively seek to undermine the political influence of ethnic and regional minorities by impeding the formation of parties aimed at furthering their interests. Here, we assess the impact of two kinds of legal provisions against ethnoregional parties—outright bans and ballot-access requirements that indirectly impede their ability to win votes and legislative seats. Despite being less direct, we theorize ballot-access requirements should be much more effective at undermining ethnoregional parties as they provide seemingly objective rules that are easy to enforce. In contrast, outright bans require difficult subjective decisions on parties with a non-ethnoregional façade. Combining in-depth case analysis with multivariate models based on a comprehensive dataset of election results spanning 73 countries between 1990 and 2012, we find that party bans do little to curb ethnoregional party influence. By contrast, registration and ballot-access requirements are much more effective.