Streitbare Demokratie
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Defensive democracy is a term referring to the collection of
laws Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vari ...
,
delegated legislation Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative democ ...
, and
court ruling A court order is an official proclamation by a judge (or panel of judges) that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of ...
s which limit certain rights and freedoms in a democratic society in order to protect the existence of the state, its democratic character and institutions, minority rights, et cetera. The term describes a major conflict that may emerge in a democratic country between compliance with democratic values, particularly
freedom of association Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline mem ...
and the right to be elected, and between preventing anti-democratic groups and persons from abusing these principles. In certain democratic states there are additional special distinctions, supported by a notable section of the population, which justify the use of defensive democracy. However, the question of in what situations the use of defensive democracy is justified without this being considered excessive repression of civil rights is disputed.


History

The raison d'être for defensive democracy arose due to anti-democratic groups and persons which abused democratic principles and norms. The clearest example of such an abuse is the
Nazi Party The Nazi Party, officially the National Socialist German Workers' Party (german: Nationalsozialistische Deutsche Arbeiterpartei or NSDAP), was a far-right political party in Germany active between 1920 and 1945 that created and supported t ...
's takeover by democratic means of the
Weimar Republic The Weimar Republic (german: link=no, Weimarer Republik ), officially named the German Reich, was the government of Germany from 1918 to 1933, during which it was a constitutional federal republic for the first time in history; hence it is ...
in 1933, which caused the complete destruction of German democracy, as exemplified by one of
Josef Goebbels Paul Joseph Goebbels (; 29 October 1897 – 1 May 1945) was a German Nazi politician who was the ''Gauleiter'' (district leader) of Berlin, chief propagandist for the Nazi Party, and then Reich Minister of Propaganda from 1933 to 194 ...
's infamous addresses: A prior example was the
National Fascist Party The National Fascist Party ( it, Partito Nazionale Fascista, PNF) was a political party in Italy, created by Benito Mussolini as the political expression of Italian Fascism and as a reorganization of the previous Italian Fasces of Combat. Th ...
's takeover of the
Kingdom of Italy The Kingdom of Italy ( it, Regno d'Italia) was a state that existed from 1861, when Victor Emmanuel II of Sardinia was proclaimed King of Italy, until 1946, when civil discontent led to an institutional referendum to abandon the monarchy and f ...
in the 1920s, which resulted in an imposition of a dictatorship over Italy.


Methods of Defensive Democracy

The use of defensive democracy can be expressed via several actions applied to a person or group, such as: * Surveillance by the security corps (especially military and police intelligence) of activists who are considered dangerous, or after entire associations outright; * Restrictions on the freedom of movement or action over bodies suspected of endangering democracy; * Deprival of the rights of individuals and parties from running for election (such as
Meir Kahane Meir David HaKohen Kahane (; he, רבי מאיר דוד הכהן כהנא ; born Martin David Kahane; August 1, 1932 – November 5, 1990) was an American-born Israeli ordained Orthodox rabbi, writer, and ultra-nationalist politician who serv ...
, and subsequently the Kach party which he led, in Israel); * Outlawing of organizations considered a danger to democracy (such as the Communist Party in West Germany) As a rule, democratic countries try to not use the methods of defensive democracy too hastily or too severely, and seek alternative courses of action as much as possible, such as public information campaigns and condemnation of anti-democratic activates by respected public figures. However, there are situations where a state might recourse to defensive democratic methods (usually carried out by the court system or other state authorities). The frequency and extent of use of defensive democratic methods varies from country to country. The
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
, for example, is considered a country that uses defensive democratic tactics frequently, especially after the
September 11 attacks The September 11 attacks, commonly known as 9/11, were four coordinated suicide terrorist attacks carried out by al-Qaeda against the United States on Tuesday, September 11, 2001. That morning, nineteen terrorists hijacked four commer ...
and the
2021 storming of the United States Capitol On January 6, 2021, following the defeat of then-United States President, U.S. President Donald Trump in the 2020 United States presidential election, 2020 presidential election, a mob of his supporters attacked the United States Capitol, U ...
, while
Italy Italy ( it, Italia ), officially the Italian Republic, ) or the Republic of Italy, is a country in Southern Europe. It is located in the middle of the Mediterranean Sea, and its territory largely coincides with the homonymous geographical ...
is considered a country which engages in defensive democratic courses of action sparsely.


Examples


Europe

Ten countries in Europe have outlawed
Holocaust denial Holocaust denial is an antisemitic conspiracy theory that falsely asserts that the Nazi genocide of Jews, known as the Holocaust, is a myth, fabrication, or exaggeration. Holocaust deniers make one or more of the following false statements: ...
:
France France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of overseas regions and territories in the Americas and the Atlantic, Pacific and Indian Oceans. Its metropolitan area ...
( Loi Gayssot),
Belgium Belgium, ; french: Belgique ; german: Belgien officially the Kingdom of Belgium, is a country in Northwestern Europe. The country is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeast, France to th ...
( Belgian Holocaust denial law), Switzerland (article 261bis of the Penal Code),
Germany Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
(§ 130 (3) of the penal code),
Austria Austria, , bar, Östareich officially the Republic of Austria, is a country in the southern part of Central Europe, lying in the Eastern Alps. It is a federation of nine states, one of which is the capital, Vienna, the most populous ...
(article 3h
Verbotsgesetz 1947 The Verbotsgesetz 1947 (Prohibition Act 1947), abbreviated VerbotsG, is an Austrian constitutional law originally passed on 8 May 1945 (Victory in Europe Day) and amended multiple times, most significantly in February 1947 and in 1992. It banned t ...
),
Romania Romania ( ; ro, România ) is a country located at the crossroads of Central, Eastern, and Southeastern Europe. It borders Bulgaria to the south, Ukraine to the north, Hungary to the west, Serbia to the southwest, Moldova to the east, and ...
,
Slovakia Slovakia (; sk, Slovensko ), officially the Slovak Republic ( sk, Slovenská republika, links=no ), is a landlocked country in Central Europe. It is bordered by Poland to the north, Ukraine to the east, Hungary to the south, Austria to the s ...
, the
Czech Republic The Czech Republic, or simply Czechia, is a landlocked country in Central Europe. Historically known as Bohemia, it is bordered by Austria to the south, Germany to the west, Poland to the northeast, and Slovakia to the southeast. The ...
, Lithuania, and
Poland Poland, officially the Republic of Poland, is a country in Central Europe. It is divided into 16 administrative provinces called voivodeships, covering an area of . Poland has a population of over 38 million and is the fifth-most populou ...
(article 55 of the law creating the
Institute of National Remembrance The Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation ( pl, Instytut Pamięci Narodowej – Komisja Ścigania Zbrodni przeciwko Narodowi Polskiemu, abbreviated IPN) is a Polish state resea ...
1998).


Germany

In German politics the concept exists under the term ''wehrhafte'' or ''streitbare Demokratie'' ("well-fortified" or "battle-ready democracy") which implies that the federal government ('' Bundesregierung''), the parliament (''
Bundestag The Bundestag (, "Federal Diet") is the German federal parliament. It is the only federal representative body that is directly elected by the German people. It is comparable to the United States House of Representatives or the House of Common ...
'' and ''Bundesrat'') and the judiciary are given extensive powers and duties to defend the liberal democratic basic order ("freiheitlich-demokratische Grundordnung") against those who want to abolish it. The idea behind the concept is the notion that even a
majority rule Majority rule is a principle that means the decision-making power belongs to the group that has the most members. In politics, majority rule requires the deciding vote to have majority, that is, more than half the votes. It is the binary deci ...
of the people cannot be allowed to install a
totalitarian Totalitarianism is a form of government and a political system that prohibits all opposition parties, outlaws individual and group opposition to the state and its claims, and exercises an extremely high if not complete degree of control and reg ...
or
autocratic Autocracy is a system of government in which absolute power over a state is concentrated in the hands of one person, whose decisions are subject neither to external legal restraints nor to regularized mechanisms of popular control (except per ...
regime such as with the Enabling Act of 1933, thereby violating the principles of the German constitution, the Basic Law. Several articles of the German constitution allow a range of different measures to "defend the liberal democratic order". * Art. 9 allows for social groups to be labelled ("hostile to the constitution") and to be proscribed by the federal government. Political parties can be labelled enemies to the constitution only by the (
Federal Constitutional Court The Federal Constitutional Court (german: link=no, Bundesverfassungsgericht ; abbreviated: ) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law () of Germany. Since its in ...
), according to Art. 21 II. * According to Art. 18, the can restrict the
basic rights Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
of people who fight against the (constitutional order). , that has never happened in the history of the Federal Republic. * The federal and state bureaucracies can exclude people deemed "hostile to the constitution" from the civil service according to Art. 33 (). Every civil servant (, a very broad class including many in the public sector who would not be considered civil servants in other countries, such as teachers) is sworn to defend the constitution and the constitutional order. * According to Art. 20, every German citizen has the right to resistance against anyone who wants to abolish the constitutional order as a last resort. In addition, Germany maintains a domestic intelligence service, the
Verfassungsschutz The Federal Office for the Protection of the Constitution (german: Bundesamt für Verfassungsschutz or BfV, often ''Bundesverfassungsschutz'') is Germany's federal domestic intelligence agency. Together with the Landesämter für Verfassungss ...
, whose main purpose is to investigate parties which may violate the constitutional bans on working to end the democratic nature of the state (in particular far-right and Communist parties).


Israel

Israel implemented the principle of defensive democracy, the Basic Law of the Knesset (Section 7A) which determined that "candidate lists would not participate in elections if its goals or actions, expressly or by implication, would deny the existence of the state of Israel as a Jewish state or deny the democratic character of the state of Israel." Various
political science Political science is the scientific study of politics. It is a social science dealing with systems of governance and power, and the analysis of political activities, political thought, political behavior, and associated constitutions and la ...
researchers have perceived Israel as a democracy defending itself mainly from social and security constraints with which the state of Israel has been dealing since its creation. During the first three decades of its existence, most Arab countries did not recognize the state of Israel's existence as legitimate. Through the years, concerns have been raised from within the Jewish majority in Israel that the Arab minority within the country, who consider themselves part of the
Arab world The Arab world ( ar, اَلْعَالَمُ الْعَرَبِيُّ '), formally the Arab homeland ( '), also known as the Arab nation ( '), the Arabsphere, or the Arab states, refers to a vast group of countries, mainly located in Western A ...
, would cooperate with the neighboring countries in their struggle against Israel. This situation has often raised the issue of a self-defensive democracy on the agenda in Israel. During the 1980s, the issue was heavily discussed in a different context – for the first time in Israel's history, an extreme right-wing Jewish party ( Kach), who rejected the state's democratic character and the rights of the Arab minority within the country, won representation to the
Israeli parliament The Knesset ( he, הַכְּנֶסֶת ; "gathering" or "assembly") is the unicameral legislature of Israel. As the supreme state body, the Knesset is sovereign and thus has complete control of the entirety of the Israeli government (with ...
in the 1984 elections to the Knesset. As a result, Israel's Supreme Court outlawed the party and did not allow it to run again in the 1988 elections on the basis that the party advocates
racism Racism is the belief that groups of humans possess different behavioral traits corresponding to inherited attributes and can be divided based on the superiority of one race over another. It may also mean prejudice, discrimination, or antagonis ...
.


Republic of Korea (South Korea)

Learning from legislation of West Germany, National Assembly of Second Republic inserted Defensive Democracy in their Constitution in 1960. Currently (as of 2022) in the Sixth Republic, it remains in the Constitution (§8(4) — esp. defensive democracy to prevent illegal parties) and has some procedures in other laws. The
Constitutional Court of Korea The Constitutional Court of Korea () is highest constitutional court in judicial branch of South Korea, seated in Jongno, Seoul. Established under Chapter 6 of the Constitution of South Korea, the Court has ultimate jurisdiction over judic ...
is in charge of deciding if a party is illegal and therefore should be dissolved. For the first time since the Constitutional Court of Korea was created, in November 2013, the Justice Ministry of Korea petitioned the Constitutional Court to dissolve the
Unified Progressive Party The Unified Progressive Party (UPP; ko, 통합진보당, RR: ''Tonghap Jinbo-dang'', Hanja: 統合進步黨) is a banned political party in South Korea. It was founded on 5 December 2011 as a merger of the Democratic Labor Party, the People ...
, citing its pro-North Korean activities such as the 2013 South Korean sabotage plot. On 19 December 2014, the Court ruled 8-1 that the Unified Progressive Party be dissolved. This ruling was quite controversial in South Korea.


Republic of China (Taiwan)

Article 5 of the Additional Articles of the
Constitution of the Republic of China The Constitution of the Republic of China is the fifth and current constitution of the Republic of China (ROC), ratified by the Kuomintang during the session on 25 December 1946, in Nanjing, and adopted on 25 December 1947. The constitution, ...
clearly states that any political party whose purpose or behaviour threatens the existence of the Republic of China or constitutional order of
liberal democracy Liberal democracy is the combination of a liberal political ideology that operates under an indirect democratic form of government. It is characterized by elections between multiple distinct political parties, a separation of powers into ...
is unconstitutional, and the
Constitutional Court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
can dissolve it.


See also

*'' Communist Party of Germany v. the Federal Republic of Germany'' * Eternity clause in Germany * National security * Paradox of tolerance *
Socialist Reich Party The Socialist Reich Party (german: Sozialistische Reichspartei Deutschlands) was a West German political party founded in the aftermath of World War II in 1949 as an openly neo-Nazi-oriented splinter from the national conservative German Right ...


References


Literature

*Andras Sajo
From militant democracy to the preventive state?
Constitutional Law Review No. 1 *Rory O'Connel
Militant Democracy and Human Rights Principles
Constitutional Law Review No. 1 {{DEFAULTSORT:Defensive democracy Types of democracy