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 221

Mapping 'Militant Democracy': Variation in Party

Ban Practices in European Democracies (1945-2015)

Angela K. Bourne & Fernando Casal B6rtoa*

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

INTRODUCTION

'Militant democracy' has long been the core concept of research focusing on
democratic responses to political extremism. It was coined by Karl Loewenstein
to capture the range of measures that democratic states could employ to prevent

*Authors note: Both authors have contributed equally. This is one of several joint works and the
ordering of names simply reflects a principle of rotation. Acknowledgements: We are grateful to
Professor Omer Faruck Genckaya, Professor Susan Scarrow, Professor Nicole Bolleyer, Dr. Tom
Mustily, Dr. Ilke Toygur, Dr. Stefanie Beyens and Dr. Juan Rodriguez Teruel and the three
anonymous reviewers for their helpful comments and suggestions on a previous version of this paper.
'E.g. T. Rensmann, 'Procedural Fairness in a Militant Democracy: The "Uprising of the Decent"
Fails before the Federal Constitutional Court', 4 German Law Journal (2003) p. 1117; A. Saj6 (ed.),
MilitantDemocracy (Eleven International Publishing 2004); M. Minkenberg, 'Repression and Reaction:
Militant Democracy and the Radical Right in Germany and France', 40 Patterns of Prejudice (2006)
p. 25; M. Klamt, 'Militant Democracy and the Democratic Dilemma: Different Ways of Protecting
Democratic Institutions', in F. Bruinsma and D. Nelken (eds.) Explorations in Legal Cultures (Reed
Business 2007); M. Thiel, The Militant Democracy Principle in Modern Democracies (Ashgate 2009);
M. Mare, 'Czech Militant Democracy in Action: Dissolution of the Workers' Party and the Wider
Context of This Act', 26 East EuropeanPolitics cSocieties (2010) p. 33; A. Bourne, "lhe Proscription of
Political Parties and "Militant Democracy"', 7 The Journal of Comparative Law (2012) p. 196;
G. Capoccia, 'Militant Democracy: The Institutional Bases of Democratic Self-Preservation', 9 Annual
Review ofLaw and Social Sciences (2013) p. 207.

European ConstitutionalLaw Review, 13: 221-247, 2017

@ 2017 The Authors doi:10.1017/S1574019617000098
222 Angela K Bourne and Fernando Casal Brtoa EuConst 13 (2017)

anti-democratic movements - predominantly fascists and communists - from abusing

liberal democratic freedoms to destroy those freedoms. 2 This traditional conception of
militant democracy has been re-examined in light of recent developments 3 but also
criticised on grounds such as its overly legalistic conception of responses to
extremism, 4 its narrow focus on movements that no longer constitute a 'threat' to
democratic politics,5 and a tendency for 'concept-stretching' when applied to capture
responses to new threats like international terrorism.6 Some have sought to replace it
with alternative, more comprehensive concepts such as 'defensive democracy'. 7
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' states
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. 9
While conceptual debates have blossomed, less attention has been given to
empirical analysis of the attributes of militant democracy. We lack systematic
empirical knowledge on aspects of party ban practices deemed relevant in
conceptual debates, namely: party ban practices in democracies at varying stages of
consolidation, with different experiences of non-democratic rule and varying
constitutional traditions, or studies including both activist states more prepared to
marginalise extremists and those adopting passive stances against extremists. Lack
of empirical knowledge helps explain why so few scholars have plausibly accounted
for variation in the legal rules and practices democratic states employ in response
to political extremism.' 0 To lay the foundations for such research, we survey party
bans practices in 37 European democracies in the post-World War II period,
focusing on legal and political conditions under which bans occur."

2 K. Loewenstein, 'Militant Democracy and Fundamental Rights I', 31 The American Political
Science Review (1937) p. 417.
3
E.g. Klamt, supra n. 1; Thiel, supra n. 1.
4
C. Mudde, 'Defending Democracy and the Extreme Right', in R. Eatwell and C. Mudde (eds.)
Western Democraciesandthe Extreme Right Challenge (Routledge 2004) p. 197; Thiel, supra n. 1, p. 384.
'G. Bligh, 'Defending Democracy: A New Understanding of the Party-Banning Phenomenon',
46 VanderbiltJournalof TransnationalLaw (2013) p. 1335-1336.
6
Bourne, supra n. 1, p. 197.
7
S. Rummens and K. Abts, 'Defending Democracy: The Concentric Containment of Political
Extremism', 58 Political Studies (2010) p. 649; G. Capoccia, Defending Democracy: Reactions to
Extremism in Interwar Europe (John Hopkins University Press 2005); A. Pedahzur, "lhe defending
democracy and the extreme right: A Comparative Analysis', in Eatwell and Mudde (eds.), supra n. 4.
8
A. Saj6, 'From Militant Democracy to the Preventive State', 27 CardozoLaw Review (2012) p. 2255.
9
Bligh, supra n. 5.
1o For a critique see Capoccia, supra n. 1.
1 We were not able to obtain sufficient data to include the micro-states Iceland, Luxembourg
or Malta.
Mapping Militant Democracy 223

High-profile party ban proceedings have occurred in recent years in countries

such as Germany, Spain, Belgium, Turkey, the Czech Republic and Ukraine.
More importantly, the proscription of political parties constitutes the 'most
restrictive and visible of militant laws'.' 2 It poses the strongest democratic
dilemma inherent in democratic responses to extremism: party bans
fundamentally challenge free association and expression, political representation
and principles of tolerance and pluralism. We focus on Europe because of its
varied legal and political traditions, including experiences of authoritarian rule and
democratisation. Furthermore, the number of party ban cases, and the supervisory
role of the European Court of Human Rights, means more data was available on
European practices than those elsewhere.
We begin by discussing current explanations for party bans. We then aim to
evaluate the plausibility of these explanations with reference to the nature of banned
parties (ideological orientation and salience), the nature of banning states (degree of
democratic consolidation and historical experience of authoritarian rule) and legal
traditions (substantive versus procedural democracies and proscription based on
anti-democratic ideas or behaviour). We then draw on recent developments in legal
scholarship on party bans13 in order to explore variation with reference to
entrenchment and use of party ban rationales in constitutional and legal acts.

EXPLAINING PARTY BANS: POLITICAL AND LEGAL CONTEXTS

The challenges a party ban poses for core democratic practices make banning a party a
grave act for a democracy. It is thus reasonable to expect that democracieswill only ban
anti-system parties,'4 or parties that undermine the legitimacy of the democratic
system, would change it fundamentally if they had a chance, or that reject one or
more core sets of democratic practices. 5 Furthermore, some argue that democracies
are more inclinedto ban smallparties, either because larger parties have a stronger claim
to legitimate status or because proscribing larger parties might provoke significant
political upheaval.' 6
12 CapoCCia, supra n. 1, p. 209; Capoccia, supra n. 7; W. Downs, Political Extremism in
Democracies:
3
Combating Intolerance (Palgrave MacMillan 2012).
E. Brems, 'Freedom of Association and the Question of Party Closures', in W. Sadurski
(ed.)
Political Parties Under Stress in the 21s Century (Oxford University Press 2006); N.L. Rosenblum,
'Multiculturalism and the Anti-discrimination Principle', 1 Law andEthics ofHuman Rights (2007) p. 1;
S. Issacharoff, 'Fragile Democracies', 120 HarvardLaw Review (2007) p. 1407; Bligh, supra n. 5.
4
1 Venice Commission, Compilation of Venice Commission Opinions and Reports Concerning
PoliticalParties, Strasbourg, CDL (2013) 045, 2013.
1 G. Sartori, PartiesandPartySystems (Cambridge University Press 1976) p. 117-118; G. Capoccia,
'Anti-system Parties: A Conceptual Reassessment', 14 Journalof 7heoreticalPoltics (2001) p. 9.
1 E.g. 0. Kirchheimer, PoliticalJustice: The Use of Legal Procedurefor PoliticalEnds (Princeton
University Press 1961) p. 159-160; A. Gordon, 'Limits on Extremist Political Parties: A Comparison
224 Angela K Bourne and Fernando Casal Birtoa EuConst 13 (2017)

The extent of democratic consolidation may affect party ban decisions.1 7

'New democracies', or those in transition from an authoritarian to a democratic
regime, typically face political problems that make proscribing parties more compelling,
such as polarisation, political tension and the possibility that anti-democratic forces may
gain control.' 8 'Incomplete democracies' begin democratic reform processes, obtain
some, but not all, features of consolidated democracies: major power-holders may be
appointed through relatively fair elections but democratic politics may be 'defective' due
to limited respect for constitutional liberalism; domains of power may remain shielded
from democratic competition, or certain groups may be systematically excluded. These
'defects' may make party bans more likely in incomplete democracies than established
democracies.1' Established democracies are those with consistently high 'democratic
quality' scores, and where democracy constitutes 'the only game in town'.20
Many also argue that countries with historical experience of authoritarianism
(Nazism, Fascism or Communism) or military rule are more likely to employ militant
measuressuch asparty bans againstextremists.21 Such authors have emphasised a desire
to avoid past errors and to establish symbolically significant 'uncrossable' boundaries
between an authoritarian past and democratic future. Other scholars have looked to
constitutional traditions, particularly contrasting traditions of 'substantive' and
'procedural democracies'. 22 A 'procedural model' draws on Schumpeter's conception
of democracy as an institutional arrangement for choosing leaders and determining
the political preferences of majorities. Majority rule is the basis for legitimacy, which
limits state authority to select from among competing views. Tolerance is a
transcendent norm and there are no guarantees that democracy will always prevail.
This 'rough approximation of actual state practice' 23 takes concrete form in specific

of Israeli Jurisprudence with that of the United States and West Germany', 10 HastingsInternational
and ComparativeLaw Review (1987) p. 397; Downs, supra n. 12, p. 5.
1 7 A. Bourne, 'Democratization and the illegalization of political parties in Europe', 19
Democratization (2012) p. 1065; L. Karvonen, 'Legislation on Political Parties: A Global
Comparison', 13 Party Politics (2007) p. 437.
s"Bourne, supra n. 17.
' 9 Bourne, supra n. 17.
20
J. Linz and A. Stepan, 'Towards Consolidated Democracies', 7 Journalof Democracy (1996)
p. 15-16.
21
Kirchheimer, supra n. 16, p. 137-138; U. Baches, 'Limits of Political Freedom in Democratic
Constitutional States: a Comparative Study on Germany, France and the USA', 3 Totalitarismusand
Demokratie (2006) p. 265-282; Klamt, supra n. 1; Karvonen, supra n. 17; Downs, supra n. 12;
E. Bleich and F. Lambert, 'Why Are Racist Associations Free in Some States and Banned in Others?
Evidence from 10 Liberal Democracies', 36 West European Politics (2013) p. 122.
22 G. Fox and G. Nolte, 'Intolerant Democracies', in G. Fox and B. Roth (eds.), Democratic
Governance and InternationalLaw (Cambridge University Press 2000) p. 389; Thiel, supra n. 1;
Downs, supra n. 12.
23
Fox and Nolte, supra n. 22, p. 406.
Mapping Militant Democracy 225

constitutional features, principally a lack of restrictions on the scope of constitutional

change. 24 In a 'substantive democracy', by contrast, democratic procedure is
conceived as a means for creating a society where citizens enjoy core rights and
liberties. It draws on Mill, Rawls and others in its insistence that rights should not be
used to abolish other rights, and that a democracy need not tolerate the intolerant
when its core values are at stake. A substantive democracy's legal system
characteristically prohibits amendment of core constitutional commitments to
democracy (or other core principles such as territorial integrity or secularism).
Arguably, the very definition of procedural democracies - characterised by a
commitment to 'open debate and electoral competition among all ideological
factions' 2 5 - and its contrasts with a substantive democracy, generate the expectation
that proceduraldemocracies are less likely to ban politicalparties.26
Some scholars have similarly contrasted measures addressing the Sein or 'being' of
a party or group - the ideological character of the party - and its Handeln or 'acting'

-
which mainly regards the illegal or violent nature of political behaviour and
strategies. 27 In light of this distinction and given democratic commitments to
freedom of expression, pluralism and tolerance, on the one hand, and to the rule of
law and non-violent negotiation of political differences on the other, it is reasonable
to expect that democracies will be more reluctantto banpartiesfor their anti-democratic
ideology than for any anti-democraticbehaviour.
We now examine the plausibility of these explanations by analysing the results of
our survey on political and legal conditions under which European democracies ban
parties. It has been compiled using various sources, including the existing literature,
European Court of Human Rights cases, a 1998 Council of Europe survey on party
bans, correspondence with country party experts and state interior ministries conducted
by the authors, and the Leiden University database on Party Law in Modern Europe. 28

BANNED PARTIES AND BANNING STATES IN EUROPE: THE POLITICAL

CONTEXT

Party bans vary in form and in the degree to which the targeted party is excluded
from the public sphere. The most punishing form of party exclusion is dissolution.
It denies a party the right and means to participate in public life through measures
24
Ibid., p. 406-408.
25
Ibid., p. 389.
26Bourne, supra n. 1; see also Thiel, supra n. 1, p. 389.
27 G. Capoccia, 'Repression, Incorporation, Lustration, Education: How Democracies
React to
Their Enemies: Towards a Theoretical Framework for Comparative Analysis of Defence of
Democracy', Paper presented to ECPR Joint Sessions of Workshop, Grenoble, 6-11 April 2001,
p. 13; see also Mudde, supra n. 4; Issacharof, supra n. 13.
28
<www.partylaw.leidenuniv.nl/party-law>.
226 Angela K Bourne and Fernando Casal Birtoa EuConst 13 (2017)

such as exclusion from electoral contests, removal from office or representative

positions, seizure of assets, closure of offices, or criminalisation of leaders.
Non-registrationinvolves denial of a new party's right to formally exist as a party,
acquire associated privileges or to participate in elections. Rights denialinvolves the
withdrawal of rights and privileges - such as the right to stand in elections - of
already existing parties, even though the party, as such, is not to be formally
dissolved. A lapsed ban occurs when the state fails to prevent a successor from
taking on the mande of a banned party. In this article, we focus on the first type of
party ban, dissolution, because its impact on the party system is likely to be the
most pronounced.
Defining 'political party' is notoriously difficult, given the range of historical
and political contexts in which they have operated and the varying normative
assumptions about the functions parties ought to perform. Our focus is on
political parties operating in liberal democracies that, following Ware, can be
defined as organisations that typically 'seek influence in a state', often, if not
always, fielding candidates in elections in order to occupy positions in government
at various territorial levels. 29 They ordinarily pursue goals through non-violent and
legal means, although some may secretly employ illicit means or have close links to
violent or clandestine groups.
Table 1 provides an overview of party bans in Europe since the end of World War
II. It excludes cases where party ban proceedings were initiated but subsequently
failed, such as a 1992 case against the Turkish minority party in Bulgaria, the
Movement for Rights and Freedom; the 2003 and 2017 cases against the National
Democratic Party of Germany; or the Czech government's failed first attempt to
ban the extreme-right Workers' Party in 2008. We also exclude parties banned on
technical grounds such as insufficient membership, financial irregularities or failure to
contest elections. Although we acknowledge these reasons for banning parties may be
used inappropriately to marginalise political opponents, this is rare in the cases we
examine. We therefore focus on parties banned for engaging in political violence, or
for political rationales such as espousing anti-democratic ideologies or threatening the
current political order (see Table 2 below).
In the cases of Turkey and France, the list of banned parties included in Table 1
is not exhaustive. For Turkey, we only included cases after 1983, which saw the
initiation of the longest period of (semi-) democratic rule in Turkish modern history.
In the case of France, because it was difficult to distinguish between banned parties and
banned associations, authorities invoke a single legal procedure to ban both these
organisational types. 30 Moreover, many small, rather obscure organisations have been

29
A. Ware, PoliticalPartiesand the Party System (Oxford University Press 1996).
30j. Corcuera et al. (eds.), La Ilegalizacidnde PartidosPoliticosen las Democracias Occidentales [The
Illegalisation ofPoliticalPartiesin Western Democracies] (Dykinson 2008).
Table 1. Party bans in Europe 1945 to 2015

Experience
Banning state's level of authoritarian rule 'Weimar' or
Ideological Party salience at democratisation at time other than short- 'Legitimacy'
Countries Banned parties (year) orientation time of ban of ban) term occupation rationale for ban

Austria German National Socialist Workers Extreme right Hegemonic New democracy Yes Weimar
Party (DNSAP) (1945)
National Democratic Party (NDP) Extreme right Minor Established Yes Weimar
(1988)
Belgium Flemish National Union (1945) Extreme right/ Collaborationist Established No Weimar
substate nationalist
Parti Rexiste (1945) Extreme right Collaborationist Established No Weimar
Flemish Block (VB) (2004) Extreme right/ Salient Established No Legitimacy
substate nationalist
Bulgaria United Macedonian Organisation/ Substate nationalist Minor Established Yes Legitimacy
Ilinden-Pirin (OMO) (2001)
Croatia Serbian Democratic Party (SDS) (1995) Substate nationalist Minor New Democracy Yes Legitimacy
Czech Republic Workers' Party (DS) (2010) Extreme right Minor Established Yes Legitimacy
France Nationalist Party (1959) Extreme right Minor Established No Weimar
Proletarian Left (1970) Extreme left Minor Established No Weimar
Revolutionary Communist League Extreme left Minor Established No Weimar
(1973)
Enbata (1974) Substate nationalist Minor Established No Legitimacy
Corsican Movement for Self- Substate nationalist Minor Established No Legitimacy
determination (1987)
Radical Unity (2002) Extreme right Minor Established No Legitimacy
Germany' Socialist Reich Party (SRP) (1952) Extreme right Salient New democracy Yes Weimar
Communist Party of Germany (KPD) Extreme left Salient New democracy Yes Weimar
(1956)
Greece Communist Party of Greece (KKE) Extreme left Salient Incomplete Yes Weimar
(1947)
Italy National Fascist Party (PNF) Extreme right Hegemonic New Democracy Yes Weimar
/

Republican Fascist Party (PFR) (1947)

Table 1. (Continued)

Experience
Banning state's level of authoritarian rule 'Weimar' or
Ideological Party salience at democratisation at time other than short- 'Legitimacy'
Countries Banned parties (year) orientation time of ban of ban) term occupation rationale for ban

Latvia Communist Party of Latvia (LKP) Extreme left Hegemonic New democracy Yes Weimar
(1991)
Lithuania Communist Party of Lithuania (1991) Extreme left Hegemonic New democracy Yes Weimar
Moldova Communist Party of the Republic of Extreme left Hegemonic New democracy Yes Weimar
Moldova (CPRM) (1991)
2
The NetherlandS National Socialist Movement in The Extreme right Collaborationist Established No Weimar
Netherlands (NSB) (1945)
National European Social Movement Extreme right Minor Established No Weimar
(NESB) (1955)
Dutch Peoples Union (NVU) (1978) Extreme right Minor Established No Legitimacy
Centre Party'86 (CP'86) (1998) Extreme right Minor Established No Legitimacy
Norway National Gathering (1945) Extreme right Collaborationist Established No Weimar
Romania Communist Party (Nepeceristi) (PCN) Extreme left Minor Established Yes Weimar
(2008)
Slovakia Slovak Community-National Party Extreme right Minor Established Yes Legitimacy
(SP-NS) (2006)
Spain3 Herri Batasuna (2003)/ Euskal Substate nationalist Salient Established Yes Legitimacy
Herritarrok(2003)/ Batasuna (2003)/
Eusko Abertzale Ekintza (2008))/
Communist Party of the Basque
Territories (2008)/ Askatasuna (2009)
Turkey Turkey Comfort Party (THP) (1983) Pan-Islamist Minor Incomplete Yes Weimar
United Communist Party of Turkey Extreme left Minor Incomplete Yes Weimar
(TBKP) (1991)/ Socialist Union Party
(DBP) (1995)
Socialist Party (SP) (1992) Substate nationalist Minor Incomplete Yes Legitimacy
 People's Labour Party (HEP) (1993)! Substate nationalist Minor (except Incomplete Yes Legitimacy
Freedom and Democracy Party HADEP, salient)
(OZDEP) (1993)/Democratic Party
(DEP) (1994)/ People's Democracy
Party (HADEP) (2003)
Socialist Turkey Party (STP) (1993) Extreme left/ substate Minor Incomplete Yes Legitimacy
nationalist
Democracy Party (DP) (1994) Substate nationalist Minor Incomplete Yes Legitimacy
Democracy and Change Party (DDP) Substate nationalist Minor Incomplete Yes Legitimacy
(1996)
Labour Party (EP) (1997) Extreme left Minor Incomplete Yes Weimar
Welfare Party (RP) (1998)/Virtue Party Pan-Islamist Salient Incomplete Yes Weimar
(FP) (2001)
Democratic Mass Party (DKP) (1999) Substate nationalist Minor Incomplete Yes Legitimacy
Democratic Society Party (DTP) (2009) Substate nationalist Salient Incomplete Yes Legitimacy
UK Sinn Flin (1956)/ Republican Clubs Substate nationalist Minor Incomplete (Northern No Legitimacy
(1967) Ireland)
Fianna Uladh (1956) Substate nationalist Minor Incomplete (Northern No Legitimacy
Ireland)
Ukraine Communist Party of Ukraine (KPU) Extreme left Hegemonic New democracy Yes Weimar
(1991)
Russian Bloc (RB) (2014) Substate nationalist Minor Incomplete Yes Legitimacy
Russian Unity (RY) (2014) Substate nationalist Minor Incomplete Yes Legitimacy
Communist Party of Ukraine (KPU) Extreme left Salient Incomplete Yes Weimar/
(2015)4 Legitimacy

Notes:
'In the case of Germany, we excluded the far-right Free German Workers Party and National List from our list of banned parties because the Federal Constitutional Court ruled that these were associations.
2
1t is a grey area whether NVU was actually banned. It was characterised as a prohibited association in 1978, but the Dutch Supreme Court later ruled that because it was not formally dissolved it could no longer
be excluded from participating in elections.so
3
This list of party bans in Spain does not include parties that were denied registration on the grounds that they were successors to Batasuna (such as Abertzak Sozialisten Batasuna or Sonu (the latter
non-registration was overturned by the Constitutional Court in 2012), or party lists or lists of electoral coalitions banned prior to electoral contests for the same reasons (such as Demokrazia Him Milioi orBilu).
the KPU was the same party banned in 1991 but permitted to re-emerge in 1993. The ban in 2015 was due to partys separatist goals and for purportedly undermining constitutional values.
230 Angela K Bourne and Fernando Casal Birtoa EuConst 13 (2017)

banned in France, whose political goals and practices require detailed historical
knowledge beyond the scope of this article. In Table 1, we include a sample of parties
that preliminary investigation, or organisational tide, suggested were political parties.
Following the general line of the existing literature, we also include the rather
ambiguous case of Vlaams Blok (Flemish Block) in our list of banned parties. 3 ' As
Bale argues, this case constitutes an additional category of party ban - the 'effective
(if not technical)' party ban. 32 The Belgian courts ruled that the party violated
anti-racism legislation, a decision that could have led to withdrawal of state
funding and limits on access to the media, public buildings and even the postal
service. 3 3 The party then dissolved itself and re-emerged as Vlaams Belang (Flemish
Interest). We also include as party ban cases those approved by the appropriate
domestic authorities, even if the European Court of Human Rights subsequently
declared the cases in violation of the European Convention of Human Rights
(e.g. UMO Ilinden-Pirin and various Kurdish parties in Turkey).
The majority - 20 out of 37 - of European democracies in our sample have
banned a party at some time since the end of World War II, suggesting that
proscription of parties is more common than is usually recognised.3 4 There were
52 concluded individual party ban cases. We count the proscription of each
successor party as a separate party ban case because both initial and subsequent
bans require separate acts of formal assent by public authorities. In the article's
analysis of the nature of banned parties, we exclude all French ban cases, the total
number of which could not be verified and which were included in Table 1 for
illustrative purposes. Acknowledging the significance, but also overrepresentation,
of Turkish ban cases in the sample - 16 of the total 52 party ban cases (31%) - we
calculate two scores where relevant, one with and one without Turkish party bans.

Nature of bannedparties
According to Capoccia, 'ideological anti-systemness' can be defined as synonymous
with 'anti-democraticness' if a clear definition of democracy is established alongside
an indication of how an anti-system party may violate this. To this end, Capoccia
adopts Collier and Levitsky's3 5 definition of democracy as a political system that, at a
3 1
T. Bale, 'Are Bans on Political Parties Bound to Turn Out Badly?', 5 Comparative
European
Politics (2007) p. 141; Bligh, supra n. 5; Rosenblum, supra n. 13.
32
Bale, supra n. 31, p. 144; see abo Downs, supra n. 12, p. 95.
33
Bale, supra n. 31, p. 152.
34
The 17 states in our survey that have not banned parties are Albania, Bosnia-Herzegovina,
Cyprus, Denmark, Estonia, Finland, Hungary, Ireland, Kosovo, Macedonia, Montenegro, Poland,
Portugal, Slovenia, Serbia, Sweden and Switzerland.
35 D. Collier and S. Levitsky, 'Democracy with Adjectives. Conceptual Innovation in

Comparative Research', 49 World Politics (1997) p. 430-451.

Mapping Militant Democracy 231

minimum, includes: (a) fully contested elections; (b) full suffrage and an absence of
massive fraud; (c) effective guarantees of civil liberties, underpinned by notions of
political equality for all citizens regardless of religion, race, colour, age etc.; and
(d) elected governments with a strong capacity to govern. Capoccia does not
specifically address the issue of violence, but we might reasonably add the additional
criterion (e) commitments to pursue parliamentary representation and government
office through exclusively non-violent means. Baches' discussion of religious/
secularist extremisms suggests a final criterion, namely (f) commitments to balance
goals of religious freedom and secular foundations of the constitutional state.3 6
Essentially, if a party rejects one, some or all of these aspects of liberal democratic
systems, it will be considered an anti-system party.
In our sample, banned parties cluster around a small number of ideologicalcategories
consistent with conceptions of anti-system parties as defined above. Excluding Turkish
cases, extreme-right parties are the largest category of party bans (42%, 15 cases) and
extreme-left is the third largest category of banned parties (22%, 8 cases). In Turkey,
four parties were banned for religious fundamentalism. It is noteworthy that a large
number of substate nationalist parties have also been banned in Europe. Indeed, if
Turkish and the other cases are taken together, substate nationalist parties are the largest
category of banned parties (together 44%, 21 cases) and in Western Europe alone,
proscription of minority nationalist parties is relatively high (44%, 11 cases). The
European Court of Human Rights has ruled, in cases dealing with attempts to ban
separatist parties in Turkey and Bulgaria, that that promoting a change in the legal
constitutional structure of the state was not sufficient grounds for legitimate
party bans.3 7 Nevertheless, in our sample, almost all the banned substate nationalist
parties were proscribed primarily due to anti-system ideologies (e.g., extreme right
character of Vlaams Blok in Belgium) or claims that they were linked to violent groups
(e.g. Basque, Irish and Kurdish nationalist parties). There is thus a strong case for the
argument that democracies primarily ban anti-system parties, although it should be
recalled that many fascist, neo-Nazi and far-right parties, cold war and post-cold war
communist parties, religious fundamentalist and some substate nationalist parties
linked to violent groups have nevertheless escaped proscription.
Ideally, we would measureparty size with reference to actual electoral results in
national or regional elections. This is problematic in practice because some banned
parties are very small and have made little impact in electoral terms, while
others, such as former ruling authoritarian parties, were enormously powerful
but did regularly face fair electoral contests. We therefore employ nominal
categories to evaluate the relevance of party size. As expected, most banned parties

U. Baches, PoliticalExtremes: A Conceptual Historyfrom Antiquity to the Present (Routledge

2010) p. 189.
37
Ibid., p. 170-172.
232 Angela K Bourne and Fernando Casal Birtoa EuConst 13 (2017)

(50%, 26 cases) are minor parties only able to capture, at most, one or two
percentage points of the vote when banned. Without Turkish parties included,
this figure falls but is still high (38%, 14 cases).
Nevertheless, about a quarter of banned parties were salient parties (27%, 14
cases), whose vote share potentially permitted them to influence the dynamics of
electoral behaviour, party competition or government formation at the national
level, or in federal or semi-federal states, at the regional level.3 " These were the
Communist Party of Germany, which won 5.7% of the vote in the 1949 West
German elections, seats in eight Lander parliaments, and up to 14% of the vote in
1947 North Rhine-Westphalia Land elections prior to proscription; the Socialist
Reich Party in Germany, whose best result was 11% of the vote in 1951 Lower
Saxony Land elections; Herri Batasuna and various successors, which routinely
won between 10 and 18% of the vote in Basque Autonomous Community
elections between 1980 and 2005; the Welfare Party in Turkey, which was the
largest party after 1996 elections (with 22% of the vote) and part of a coalition
government in Turkey for nearly a year; Flemish Block, which had become the
second largest party in the Flemish parliament with over 24% of the vote by 2004;
and the Communist Party in Greece, whose success can be estimated by the
electoral success of its tolerated successor, the United Democratic Left, which won
14% on average in the six elections it contested before the Communist Party was
legalised. While Kurdish parties have generally struggled to win representation
in the Turkish parliament, two parties, the People's Democracy Party and
Democratic Society Party won around 4% of the vote respectively in 1995 and
1999, as well as in the 2007 national elections, and have been successful in local
elections. Furthermore, seven ban cases (13%) targeted 'hegemonic parties', or
former ruling mass fascist parties banned in Austria and Italy immediately after
World War II and the communist parties banned in Latvia, Lithuania, Moldova
and Ukraine. Four parties in Belgium, The Netherlands and Norway were banned
for collaborating with Nazi occupiers, although their influence varied and is
difficult to quantify. 3 9 Leaving aside the rather indeterminate category of
collaborator bans, the combined frequency of salient and hegemonic party bans
(38%, 20 cases) challenges the expectation that only minor parties are banned.

Nature of banning states

A party ban is classified as a 'new democracy ban' if it takes place five to seven years
after the first multiparty elections held after a period of autocratic rule. 40
38 F. Casal B6rtoa and A. Bourne, 'Prescribing Democracy? Party Proscription and Party System

Stability', MPSA Annual Conference in Chicago, 16-19 April 2015.

39
P. Niesen, 'Banning the Former Ruling Party', 19 Constellations(2012) p. 545.
40 For further details see Bourne, supra
n. 1, p. 1070.
Mapping Militant Democracy 233

Indeed, as expected, new democracy bans have been relatively frequent (19%,
10 cases). In Western Europe, new post-war democracies in Germany, Austria and
Italy banned parties, as did the post-communist 'new democracies' in Latvia,
Lithuania, Ukraine, Moldova and Croatia. Not surprisingly, eight of the ten
parties banned by new democracies were former ruling parties or their successors,
with proscription of the Communist Party in Germany and Serbian Democratic
Party in Croatia as the only exceptions. Nevertheless, when the states not
represented in Table 1 are taken into account, it becomes apparent that a larger
number of new democracies did not ban parties. Of new democracies, the
following states in our survey did not ban parties: Bulgaria, Czech Republic,
Romania, Slovakia, Spain, Albania, Bosnia-Herzegovina, Estonia, Hungary,
Kosovo, Macedonia, Montenegro, Poland, Portugal, Slovenia and Serbia.
In our sample, 'incomplete democracy bans' are the largest category of bans
(44%, 23 cases), also confirming expectations generated in the existing literature. While
Turkish party bans represent the largest part of this category, there were also eight party
bans elsewhere: in Ukraine (in the case of the 2014 and 2015 bans), Greece (prior to
1975) and Northern Ireland (between 1922 and 1972, if not the United Kingdom
as such). In established democracies, 19 parties (37%) were banned. Interestingly,
incomplete democracies have been more inclined to ban substate nationalist
parties (61%, 14 out of 23 cases). Established democracies, on the other hand,
have been less tolerant of extreme-right parties (58%, 11 cases), including the above-
mentioned collaborationist parties in Belgium, The Netherlands and Norway, the Nazi
successor party in Austria (National Democratic Party) and more recent party bans in
Belgium (Flemish Block), The Netherlands (Centre Party '86), the Czech Republic
(Workers' Party) and Slovakia (Slovak Community-National Party). Nevertheless, if
we again take into account the experiences of incomplete democracies in our survey but
not listed on Table 1, it can be seen that fewer incomplete democracies have banned
parties than those that have not banned parties. Of the European states we surveyed,
only three (Turkey, Ukraine and Moldova) classed as 'partially free' according to
Freedom House scores in 2014 had ever banned a party, Montenegro, Macedonia,
Kosovo, and Bosnia-Herzegovina had never banned parties, while the communist party
ban in Moldova could be considered a 'new democracy ban' given its proximity to the
first democratic elections held in that country.
Against all expectations to be had from the literature, data in Table 1
suggests that countries with historic experiences of authoritarian rule other than
short-term occupation are equally likely to ban parties as those who have
not had such experiences. Citizens in most European democracies have lived in
states that have experienced significant periods of authoritarian or military rule
(70%, 26 countries). Nevertheless, similar ratios of states have banned parties
in states with such experiences (15 countries out of 26) and those without
(5 countries out of 11).
234 Angela K Bourne and Fernando Casal Brtoa EuConst 13 (2017)

In the next section, we turn to the legal context in which party bans occur. We
do so with reference to Bourne's typology of party bans. 4 This has the advantage
of bringing together data on both constitutional traditions associated with
procedural and substantive conceptions of democracy, and party ban practices
distinguishing between proscription on the grounds of anti-democratic behaviour
(such as violence) and anti-democratic ideas (such as racism). It also examines the
legal context in democracies that do and do not ban parties.

TOLERANT AND INTOLERANT DEMOCRACIES: THE LEGAL CONTEXT

Bourne's typology builds on a critique of Fox and Nolte's seminal research on

party bans and their distinction between 'tolerant' and 'intolerant' democracies. 42
To Fox and Nolte's focus on (a) the distinction between procedural and
substantive democratic constitutional traditions and (b) whether or not
democracies ban political parties, Bourne's typology adds a third dimension
focusing on (c) whether bans sanction 'anti-system ideology' or 'anti-system
behaviour'. In Figure 1, we categorise all 37 of the European democracies surveyed
according to these variables.
Democracies are first categorised according to whether or not they could be
considered procedural or substantive democracies following definitions provided
earlier. While acknowledging that categorisation of distinctive political systems
may be open to interpretation by legal scholars and indeed the judiciary,4 3 we
employ constitutional amendment procedures as indicators of a tradition of either
procedural democracy (no formal limits on constitutional change) or substantive
democracy (existence of formal limits on constitutional change). We then
categorise states according to whether those democracies that do ban parties
do so: (a) only for anti-democratic or anti-system behaviour, such as association
with violent groups; or do so (b) also, or only, for holding anti-democratic or anti-
system ideologies.
The line between what constitutes anti-system ideology and anti-system
behaviour may sometimes be rather fuzzy. Symbolic action may deliver clear
ideological messages; a refusal to condemn publicly acts of political violence may
communicate support for political violence; or expressing racist ideas may incite
others to commit acts of violence against ethnic minorities. Nevertheless, as
mentioned above, there is a tradition among scholars of state responses to political
extremism to contrast measures addressing the ideological character of the party
or its behaviour. Mudde, for instance, has distinguished an 'American' from a
41
Bourne, supra n. 1.
42
Bourne, supra n. 1; Fox and Nolte, supra n. 22.
43
E.g. C.L. Buis, 'France' in M. Thiel (ed.), The Militant Democracy' Principle in Modern
Democracies (Ashgate 2009) p. 82-84 and p. 89; C. Vidal, 'Spain' in ibid. p. 260.
Mapping Militant Democracy 235

'German' model of response to extremism using similar criteria.44 The American

model permits 'all ideas' in the democratic 'marketplace of ideas' whether
they are democratic or not, but does not accept all actions, especially those of
violent groups. In contrast, the 'German model' severely punishes anti-democratic
actions and ideas opposed to the fundamental principles of the free democratic
order. Similarly, Issacharof contrasts action-oriented proscription by states, like
Spain, which 'prohibit parties that are deemed to be fronts for terrorist or
paramilitary groups' with the approach employed by 'states that forbid the
formation of parties hostile to democracy, as Germany has done in banning
any successors ... to the Nazi or Communist parties'. He also distinguishes
action-oriented proscription from that in states that 'impose content restrictions
on the views that parties may hold, as with the requirement in Turkey of fidelity to
the principles of secular democracy as a condition of eligibility for elected office' or
Israel which, 'through its Basic Law, excludes from the electoral arena any party
that rejects the democratic and Jewish character of the state, as well as any party
whose platform is deemed an incitement to racism'.45
We then classify according to whether democracies in the survey
actively employ available legal rules to ban extremist political parties on
the one hand, and those that have no such rules, or have them but do not
implement them in practice on the other. More specifically, the typology
distinguishes between 'intolerant democracies' or those that actively employ the
tool of proscription against extremist parties and 'tolerant democracies' or those
that abstain from employing this tool. The second, abstentionistcategory includes
two subcategories: democracies that adopt a permissive stance by choosing not to
adopt legal instruments permitting proscription of extremist parties at all; and
democracies that remain passive in the face of extremist parties, even though
equipped with legal instruments for proscription. In Figure 1, we group tolerant
democracies together in the centrally located shaded segment. In order to focus on
relatively recent party ban practices, we focus on party ban cases that have occurred
since 2000.46
As Figure 1 shows, there are twice as many procedural democracies
(25 countries) in Europe as substantive democracies (12 countries). Figure 1
also makes it clear that both substantive (4 democracies) and procedural
democracies (5 cases) have relatively recently banned political parties, which
is insufficient to support the expectation that procedural democracies are more
likely to ban political parties. Nevertheless, there is a much stronger case for
arguing that procedural democracies are more likely to be tolerant democracies of

44
Mudde, supra n. 4, p. 196.
45
lssacharof, supra n. 13, p. 1409.
For more detailed discussion of some recent cases see Bourne, supra n. 1.
236 Angela K Bourne and Fernando Casal Brtoa EuConst 13 (2017)

Procedural Democracies Substantive Democracies

FR

ES, BG,
When banning, only
do so for anti- e
system behaviour AT. DKA K. YE. I

When banning, do
so for anti-system
behaviour andlanti-
system ideologies

BE, CZ, SK RO,

UA, TR

Activist/Intolerant Abstentionist/Tolerant

Figure 1. Tolerant democracies, intolerant democracies and party bans in Europe (2015)
Note: AL Albania, AT Austria, BE Belgium, BG Bulgaria, BIH Bosnia and Herzegovina,
CH Switzerland, CY Cyprus, CZ Czech Republic, DK Denmark, DE Germany, EE Estonia,
EL Greece, ES Spain, FI Finland, FR France, HR Croatia, HU Hungary, IT Italy, IE Ireland,
LV Latvia, LT Lithuania, MD Moldova, MK Macedonia, MNE Montenegro, NL Netherlands,
NI Northern Ireland, NO Norway, PL Poland, PO Portugal, RKS Kosovo, RO Romania,
SE Sweden, SK Slovakia, SLO Slovenia, SRB Serbia, SW Switzerland, TR Turkey, UA Ukraine,
UK United Kingdom

the passive kind, with provisions permitting proscription remaining unused.

Indeed, 20 of the states categorised as tolerant democracies were procedural
democracies, while only 8 were substantive democracies. (Similar numbers of
procedural (six cases) and substantive democracies (four cases) are classed as
intolerant democracies). Figure 1 also makes it clear that more parties have been
banned for anti-system ideas (6 cases) and/or behaviour than anti-system
behaviour alone (3 cases), although the total number of cases overall is rather
small (9 cases).
In order to probe deeper into patterns of variation in party ban practices we
now turn to recent legal scholarship and classify the 37 European democracies
according to varying political rationales for party bans entrenched in constitutional
and legislative acts and the evolution of those rationales.
Mapping Militant Democracy 237

EVOLVING RATIONALES FOR PARTY BANS AND PROCEDURES FOR

PROSCRIPTION

High-profile ban proceedings in Germany, Spain, Turkey and the Czech Republic
and controversial rulings from the European Court of Human Rights have led
legal scholars to reflect more systematically on party bans, particularly the nature
of ban rationales and their evolution over time.4 7 In this literature, Brems' work
has been the most comprehensive and has the advantage of examining both active
and more passive orientations to party bans. Brems distinguishes six legal
justifications for banning a party. They aim either to prevent 'potential harm',
which could occur if the parties' political programmes were to be realised, and/or
'actual harm', which are measures designed to 'defend' democratic states from
those who would undermine them. Brems' legal justifications for banning parties
relate to: (a) a party's anti-democratic ideology; (b) the democratic quality of its
internal decision-making procedures; (c) party name; (d) a party's orientation to
political violence and its role in fermenting social unrest; (e) protecting the present
order and (f) technical regulation of access to the democratic process.

Contemporary rationalesfor banningparties

Anti-democratic ideology
Party bans on these grounds may derive from laws which specificallyprohibit the
re-creationofan anti-democraticparty. For example, the 1948 Italian Constitution
(XII Transitory and Final Provision) forbids re-emergence of the dissolved
National Fascist Party, provisions developed further in the Scelba Law (20 June
1952, no. 645), providing for the definition and punishment of associations
wanting to recreate a fascist party. Similarly, in Austria the 1945 Verbotsgesetz
prohibited any kind of National Socialist activity, legislation employed in the
immediate post-war period to ban the National Socialist Workers Party and later
the National Democratic Party of Austria in 1988. 4
Anti-democratic ideology bans may also derive from more broadlyformulated
rules permitting proscription of all parties threatening the democratic system. For
example, Article 21.2 of the German Basic Law permits proscription of 'Parties
that, by reason of their aims or the behaviour of their adherents, seek to undermine
or abolish the free democratic basic order or to endanger the existence of the
Federal Republic of Germany'. It authorised proscription of the Nazi successor
47
E.g. Brems, supra n. 13; Rosenblum, supra n. 13; Issacharof, supra n. 13; P Niesen, 'Anti-
extremism, Negative Republicanism, Civil Society: Three Paradigms for Banning Political Parties',
(2002) 7 German Law Journal249 and Niesen, supra n. 39; Bligh, supra n. 5.
4
"Brems, supra n. 13.
49
M. Stelzer, The Constitution ofthe Republic ofAustria (Hart Publishing 2011) p. 50.
238 Angela K Bourne and Fernando Casal Brtoa EuConst 13 (2017)

party, the Socialist Reich Party, and the Communist Party of Germany, and more
recently has been unsuccessfully invoked against the extreme-right National
Democratic Party of Germany (in a case rejected by the Federal Constitutional
Court in 201750). The Slovak Community-National Party was dissolved on these
grounds because its party programme - in a section titled 'Corporatist State'

-
advocated restricting suffrage. 5 1
Bans on the grounds of anti-democratic ideology may also derive from rules
permittingthe ban ofparties threateningcore constitutionalprinciples.For example,
Article 68.4 of the Turkish Constitution states, among other things, that neither
statutes, programmes nor the activities of political parties can be in conflict with:
the independence of the state; its indivisible integrity; human rights; the principles
of equality and rule of law; the sovereignty of the nation; the principles of the
democratic and secular republic. 52 In its ground-breaking ruling supporting
Turkish proscription of the Welfare Party, the European Court of Human Rights
clarified its view that party bans were justified if a party pursues a policy 'which
fails to respect democracy or is aimed at the destruction of democracy and the
flouting of rights and freedoms recognized in a democracy', even where the party
only uses legal means to pursue its goals. 5 3 Similarly, Article 4 of the French
Constitution requires that parties respect the principles of national sovereignty
and democracy.
And finally, anti-democratic ideology may also be grounds for party bans in
5
cases where parties are banned for racism or incitement to hatred. In the
Netherlands, the racist Centre Party '86 was banned in accordance with
Article 2.20 paragraph 1 of the Dutch Criminal Code, which permits dissolution
of legal entities 'in opposition to the public order'. 5 5 In addition to its
use of violent means to pursue its political objectives (see below), the Czech
extreme-right Workers' Party was banned in 2010 for its racist attitudes to ethnic

50 During the case, it emerged that a large percentage of the National Democratic Party's inner
circle were in fact undercover agents or informants for the German security services and that the
agents had influenced party activities. However, when the Constitutional Court called for names of
agents and the security services refused to do so, the case against the party was closed.
5 F. Casal B6rtoa et al., 'Party Laws in Comparative Perspective: Evidence and Implications', in I.
van Biezen and H.M. ten Napel (eds.) Regulating Political Parties: European Democracies in
ComparativePerspective (Leiden University Press 2014) p. 357.
52 In this context, and as the majority of the doctrine has maintained, the Constitution constitutes
,a common program for all political parties', O.F. Gengkaya, 'Impact of Party Regulation on Small
Parties and Independent Candidates in Turkey', 41 The Legal Regulation ofPoliticalParties Working
Papers Series (2014) p. 6.
53
Brems, supra n. 13, p. 160.
54
Ibid., p. 160 and 152.
55
j. Van Holsteyn, 'Beating a Dead Horse? The Dutch State and the Defence of Democracy
against Right-wing Extremism', ECPRJoint sessions, Edinburgh, 29 March-2 April 2003, p. 13-16.
Mapping Militant Democracy 239

minorities (particularly, but not exclusively, Roma), in violation of Article 4 of the

Party Law (No. 424/1991).56

Non-democratic internalorganisation
While many countries require parties to organise themselves democratically, in
relatively rare cases failure to do so can lead to proscription, namely the Czech
Republic, Germany, Spain, Poland and Portugal. It has only been invoked in the
case of the Socialist Reich Party in Germany in 1952 (prior, in fact, to enactment
of the 1967 Party Law formally requiring internal democratic functioning).

Party names
Party names may cause harm if they incite racism, or if they strongly resemble
another party's name. However, when examining the case of the United
Communist Party of Turkey, the European Court of Human Rights ruled that an
inappropriate name was insufficient to legitimise a party ban.57 Proscription on
these grounds usually takes the form of non-registration, rather than dissolution of
already existing parties, 58 and for this reason we do not discuss it further here.

Party orientationto violence

Parties may be banned if they promote violence, which European Court of Human
Rights rulings have established may involve both explicit calls for violence or
ambiguity about the appropriateness of violence for achieving political ends. 59 For
example, the secessionist Serbian Democratic Party, which mobilised against
Croatian independence and employed violence in establishing the breakaway Serb
Republics, was banned in the early 1990s. Parties may also be banned for
supporting a terroristorganisation. In Spain, the radical Basque nationalist parties,
Herri Batasuna and its successors were banned under Article 9 of the 2002 Party
Law (6/2002) on the grounds of their integration in the terrorist group Euskadi Ta
Askatasuna. In the United Kingdom, Sinn F6in, Republican Clubs and Fianna
Uladh were banned as 'unlawful associations' in Northern Ireland under the Civil
Authorities (Special Powers) Act of 1922 because of involvement in terrorist
organisations, the Irish Republican Army and, in the case of the Fianna Uladh,
Saor Uladh.6 o Currently, violent organisations in the UK may be listed as
'proscribed organisations' under the Terrorism Act 2000. In Turkey, the People's
56
Mare, supra n. 1, p. 39-44.
57
Brems, supra n. 13, p. 163.
58
Ibid.
59
Brems, supra n. 13, p. 166.
6oT.P. Coogan, The IRA (Palgrave 2000) p. 283.
240 Angela K Bourne and Fernando Casal Brtoa EuConst 13 (2017)

Democracy Party was banned for allegedly supporting the Kurdistan Workers'
Party, a military organisation founded in 1978 to obtain the self-determination of
the Kurds. Parties that do not use or advocate violence may nevertheless be banned
in some states forfear that it will leadto societalunrest andperhaps violent conflict.6 1
For instance, alongside commitments to respect fundamental democratic
principles, the Czech constitution (Article 5) requires parties to 'renounce force
as a means of promoting their interests', as does Czech Party Law (no. 424/1991).
In addition to inciting racial intolerance, the Worker's Party was banned for
refusing to renounce, glorifying and inciting, violence. 62

Protectingthe present order

Parties may be banned for threatening the existence of the state as such, either
through promotion of policies such as secession, or policies that undermine the
independence of the state. 6 3 Pertinent examples include the proscription of the
United Macedonian Organisation/Ilinden-Pirin, a Macedonian minority party
banned in Bulgaria in 2001 for its secessionist goals, or both the Russian Bloc and
Russian Unity, which were banned in Ukraine in 2014 for, respectively,
promoting the integration of Ukraine or parts of Ukraine into Russia. The greatest
number of examples can be found in Turkey where up to ten parties have been
banned for promoting Kurdish nationalism and/or violating the principle of
national unity. The (amended) 1976 Portuguese Constitution and Law 2/2003
(amended) governing Political Parties prohibit regional parties, while various
separatist or pro-independence parties and movements have been banned in
France, including Basque, Breton, Corsican and Algerian parties. As mentioned
above, however, the European Court of Human Rights has sought to limit the
scope of such provisions. In addition, communist parties were banned in Latvia,
Lithuania, Moldova and Ukraine in 1991 for threatening the consolidation of
these former Soviet Republics into newly-independent states. More specifically,
the pro-Soviet communist parties in these new states were banned for explicitly
supporting the August 1991 putsch attempt against Soviet Union President,
Mikhail Gorbachev.

Technical requirements regulatingaccess to the democraticprocess

Parties may be banned if they do not meet certain formal requirements, such as a
minimum number of members or candidates presented in elections, or for
violation of rules regarding the financing of a party. We focus on the political

6tBrems, supra n. 13, p. 169.

62
Mard, supra n. 1, p. 39-44.
63
Brems, supra n. 13, p. 172.
Mapping Militant Democracy 241

rationales for party bans, but it is noteworthy that many (32%, 12 countries) in
our survey permitted proscription of parties on such grounds (Bulgaria, Czech
Republic, Latvia, Lithuania, Romania, Turkey, Estonia, Finland, Hungary,
Poland, Portugal, Slovenia). In Romania, for example, the Republican Party was
dissolved in 2007 for failing to obtain a sufficient number of votes. In Turkey, the
Kemalist People's Party was dissolved in 1991 for using the name and symbols of
the Republican People's Party, which was banned in 1980; the Green Party was
dissolved when it failed to submit its annual accounts; and the extreme-right/
pan-Islamist Revival Party was dissolved for not participating in two consecutive
elections (in contrast to other Islamist parties, which were formally dissolved for
anti-constitutional ideology).
Table 2 lists the legal rationales for banning parties written into current
constitutional or legislative acts in the European democracies surveyed (marked
with an X) and which justifications have been invoked when banning parties
(marked with a grey-shaded cell) either in accordance with current or previous
legislation. Where legal rationales could have been classified in more than one
category, we categorised rationales according to what we interpreted as primary
rationales for proscription. A small number of states (16%, 6 cases) are excluded
from Table 2 because they have no legal provisions to dissolve parties on the
grounds of anti-democratic ideologies, undemocratic internal functioning,
violence, or protecting the present order (Bosnia Herzegovina, Finland, Greece
(since 1975), Ireland, Norway (since 1945) and Slovenia).
Just under half of the states surveyed currently have legislation that has been
used to ban parties on one or another of these political grounds for banning parties
(49%, 18 cases), although there are also many states that have legal provisions to
ban parties but do not use them (41%, 13 cases). Most European democracies
surveyed permit proscription of parties on ideological grounds (65%, 25 cases), a
small majority permits proscription for violent activity (56%, 20 cases), many
permit proscription to protect the present political order (44%, 16 cases), but very
few permit proscription for undemocratic internal functioning (14%, 5 cases).
Focusing again on the practice of actually banning parties (indicated by the
grey-shaded cells on Table 2), a new dimension of variation can be observed. This
second dimension differentiates between the practices of Western European
democracies surviving World War II or re-established in the early post-war period
on the one hand, and those post-communist democracies emerging after the
collapse of the Soviet Union in the 1990s on the other. It can be observed in
relation to the two categories where legal provisions were most often invoked to
ban parties, namely for anti-democratic ideology and to protect the present order.
While 6 out of 8 of the states invoking anti-democraticideologies as grounds for
banning parties were Western democracies, 8 out of the 9 states invoking
protection of the present political order as grounds for banning parties were
242 Angela K Bourne and Fernando CasalBirtoa EuConst 13 (2017)

Table 2. Legal rationales for banning parties in Europe

Anti-democratic Non-democratic internal Protect present

Countries ideologv organisation Violence order

Austria
Belgium
Bulgaria X X
Croatia X X
Czech X x
Republic
France X
Germany X
Italy X
Latvia X
Lithuania X
Moldova X X
The
Netherlands
Romania X X
Slovakia X
2
Spain X1 X
UK
Turkey
Ukraine X
Albania X X
Cyprus
3
X
X
Denmark X
Estonia X xX
Hungary X
Kosovo
X X
Macedonia X
X
Montenegro
X
X X
Poland X X X
X
Portugal X X
X X
Serbia X
X
Sweden X

Notes: Shaded celb indicate that these rationales have been used in the post-warperiodto ban politicalparties.
'It was not possible to classify Switzerland due to the vagueness of constitutional and legal provisions, which
nevertheless appear to permit the proscription of parties, e.g. Article 36(1) of the 1999 Swiss Constitution, which
refers to the need for a legal basis and clear and present danger to justify limitations on fundamental rights and
freedoms, and Article 78 of the Swiss Civil Code which permits the dissolution of associations that are 'unlawful
8
or immoral'.
2
1t should be noted that According to Law 6/2002 a party may be dissolved, according to Article 10(2)(b), 'when
the party continuously, repeatedly and seriously infringes the requirement of a democratic internal structure and
operation'. However, it cannot be declared 'illegal' according to Article 9(2) of the law.
3
With the exception of anti-system ideology relating to promoting and inciting racial discrimination, it is difficult
to categorise party ban rationales in Cyprus given the vagueness of justificatory concepts.
Mapping Militant Democracy 243

post-communist democracies. In terms of the use of constitutional and legal

provisions, it is also striking that all but one of the states that permit party bans in
order to protect the present political order are post-communist democracies, while
similar numbers of Western and post-communist countries have legal provisions
for the other party ban rationales.

Evolving rationalesfor party bans: Weimar and legitimacyparadigms

Various scholars have observed that official rationales for the proscription of
parties have changed over time, although Bligh's distinction between 'Weimar'
and 'legitimacy' ban paradigms are the most extensively-developed argument in
this regard.6 4 Weimar-inspired, 'militant democracy' rationales ban 'parties that
seek to abolish democracy wholesale' and aim to 'prevent anti-democratic parties
from coming to power and implementing their anti-democratic agenda'.6 5
It applies to Nazi, fascist and communist parties, and more recently to Islamist
parties which explicitly seek to dismantle democratic regimes.6 6 Bligh argues,
however, that the Weimar paradigm is inadequate for most contemporary party
bans because many extremist parties do not openly promote anti-democratic
ideologies or stand a real chance of winning governmental power.6 1 With the
exception of religious fundamentalist parties, 'explicit anti-democratic ideologies
are out of fashion' and, with the exception of transitional democracies in the
Middle East, 'stable democracies are currently not challenged by parties that offer a
serious alternative to the democratic ideology'.6 Rather, a 'legitimacy paradigm'
has emerged justifying proscription if parties 'threaten certain elements within the
liberal constitutional order, such as the commitment to equality and non-
discrimination, the absolute commitment to a nonviolent resolution of disputes or
secularism'. In most cases, the banned parties do not stand a 'realistic chance of
winning an election... [and in all recent cases there was] no imminent threat that
they will come into power and implement their agenda'. 70 These bans aim 'to deny
extremist parties the forum of institutional expression, the legitimacy, and the aura
of respectability that is naturally granted to political parties in modern
democracy'.n

E.g. Bligh, supra n. 5; Niesen, supra n. 47; Rosenblum, supra n. 13, p. 23-24.
65
Bligh, supra n. 5, p. 1326.
66
Ibid., p. 1330.
67
Ibid., p. 1326; see also Rosenblum supra n. 13, p. 23-24.
6
'Bligh, supra n. 5, p. 1326 and 1336.
69
Ibid., p. 1345.
70
Ibid., p. 1354.
71
Ibid., p. 1365.
244 Angela K Bourne and Fernando Casal Brtoa EuConst 13 (2017)

Classification of banned parties according to the more traditional 'Weimar'

party ban paradigm or the more contemporary 'legitimacy' party ban paradigm is
listed in the final column of Table 1 and has been plotted into a line graph in
Figure 2 below. We exclude data on France again, as well as the 2015 case of the
proscription of the Communist Party of Ukraine due to its ambiguity.
Data presented in Figure 2 supports the observation that over the long term, the
Weimar party ban paradigm has largely been replaced by the legitimacy paradigm,
especially if practices in the early decades of the post-war period are compared with
those in the most recent two decades. An important exception here is the late 1980s
and early 1990s, when the Weimar paradigm re-emerged as justification for
proscription of communist parties in the newly democratising states of Latvia,
Lithuania, Moldova and Ukraine, an occurrence not acknowledged in Bligh's
research, due to its primary focus on party bans in established democracies.

CONCLUSION: DIRECTIONS FOR FUTURE RESEARCH

In this article, we lay the foundations for further analysis of variations in the practice of
militant democracy. Our analysis supports various expectations about the political and
legal conditions under which democracies ban parties. Analysis of the ideological
orientation of banned parties showed that in most cases, banned parties have been
anti-system parties of the extreme-right and left, substate nationalist parties
purportedly pursuing secession by violent means, or religious fundamentalist parties.
It lent support to the expectation that 'incomplete democracies' are more likely to ban
political parties than 'established democracies', proabably because of the former's
underdeveloped commitments to constitutional liberalism and other 'defective'
aspects of democratic practice. Although our research confirmed that both procedural
and substantive democracies ban parties, our research lends support to the argument
that procedural democracies are more likely to be 'tolerant democracies' that not only
eschew party bans but avoid using existing legal provisions to ban parties. There was
some, albeit limited, evidence, based on relatively recent ban experience, that
contemporary democracies are less likely to ban parties for anti-democratic ideas alone.
Our analysis, nevertheless, challenges certain commonly-held assumptions
about party bans. While it confirmed that proscription in new and 'incomplete'
democracies were important classes of party ban, it also showed that there were
more cases of new and incomplete democracies that did not ban parties. Indeed, it
could be argued that restrictions on democratic competition during periods of
authoritarian rule actually favour tolerant attitudes to anti-system parties, as
appears to have been the case in South Africa. 72 Similarly, as Niesen observes,
72
J. Kemmerzell, 'Why There is no Party Ban in the South African Constitution', 17
Democratization (2010) p. 687.
Mapping Militant Democracy 245

10
9
8
7
6
5
4
3
2
1-
0
1945-1955 1956-1965 1966-1975 1976-1985 1986-1995 1996-2005 2006-2015
- Weimar paradigm - Legitimacy paradigm

Figure 2. Evolution of party ban rationales: 'Weimar' and 'legitimacy' paradigms

many Warsaw Pact states did not ban former ruling communist parties because
'the communists were in all cases inevitable negotiation partners ,73 supporting the
argument that modes of transition are important explanations for why some new
democracies ban parties but others do not.7 4 An explanation for why some
incomplete democracies - such as Montenegro, Kosovo, Macedonia and Bosnia-
Herzegovina in our survey - have not banned parties may be the 'taming
influence' of international tutelage, including prospects of eventual EU
membership, an influence arguably reduced in the case of Turkey due to the
ambiguous attitude of the Turkish authorities to EU membership, and in the case
of Ukraine due to EU caution in the context of a civil war.75
Our analysis also contradicts expectations that democracies will only ban minor
parties. This was the largest category of banned parties in our survey, but a
significant portion - whether salient at national level, salient at regional level in
regionalised or federal states, or hegemonic former ruling parties - have been
subject to proscription. While the proscription of hegemonic, former
authoritarian ruling parties may be accounted for as instances of new party bans,
the fact that any salient parties were banned at all is striking. Such bans are, in
theory, problematic given the fundamental role that parties are assigned for the
representation of citizen interests and the reasonable assumption that banning

73
Niesen, supra n. 39, p. 552.
74
Bourne, supra n. 17; C. Hartmann and J. Kemmerzell, 'Understanding Variation in Party Bans
in Africa', 17 Democratization(2010) p. 642.
7 F. Schimmelfennig and U. Sedelmeier (eds.), 7he Europeanizationof CentralandEasternEurope
(Cornell University Press 2005).
246 Angela K Bourne and Fernando Casal Brtoa EuConst 13 (2017)

salient parties is more likely to provoke political upheaval. Indeed, the problematic
nature of salient party bans may contain its own explanation in certain cases: all
but two of the salient party bans have occurred in incomplete democracies, namely
Greece prior to 1975, and Turkey. The ambiguity of the Belgian case, in which
the Flemish Block was permitted to quickly re-emerge as Flemish Interest, also
suggests that case specific explanations may be relevant.
And finally, our analysis challenged the common assumption that historic
experiences of authoritarian rule other than short-term occupation makes party bans
more likely, given our finding that similar ratios of states with and without such
experiences have banned parties. This should not be interpreted as an argument that
historical experiences are not relevant for explaining party bans, but rather as an
indication that more nuanced understanding of the role of historical memory and its
mobilisation for political ends is called for. Indeed, as suggested above, historical
experiences may lead democratic communities to respond to the dilemmas of
proscription by rejecting party bans.16 Art's conclusion that varying responses to the
extreme-right in Germany and Austria were the product of 'dramatically different
ways in which German and Austrian elites confronted the Nazi past' provides
important support for such a nuanced approach."
Our analysis of party ban rationales, their evolution, and the procedures for
executing party ban decisions suggests a number of directions such a nuanced
approach to understanding the role of historical experiences might take. It also
suggests a way to account for the fact that while most banned parties are anti-
system parties, many anti-system parties nevertheless escape proscription. It is
clear from the above discussion that the most important rationales for proscription
entrenched in constitutional and legal frameworks and used in practice address
various dimensions of security: security of democratic communities against those
who seek to undermine them, of vulnerable groups (such as ethnic minorities)
against rights violations, of the state from violent groups and, for better or worse,
of national communities from challenges to core identities and values. This raises
the possibility that the proscription of anti-system parties may follow a process of
securitisation, perhaps drawing on historical experiences in the process of threat
construction." According to the seminal work of Buzan et al., a public issue is
securitisedwhen 'presented as an existential threat, requiring emergency measures
and justifying actions outside the normal bounds of political procedure'. 7 9
76
E.g. Kemmerzell, supran. 72 or on Spain, V. Ferreres, "lhe New Regulation of Political Parties
in Spain, and the Decision to Outlaw Batasuna', in A. Saj6 (ed.), Militant Democracy (Eleven
International Publishing 2004) p. 141.
77
D. Art, The Politicsofthe Nazi Pastin GermanyandAustria (Cambridge University Press 2006).
78
A. Bourne, 'Why Ban Batasuna? Terrorism, Political Parties and Democracy', 13 Comparative
European Politics (2015) p. 325.
79
B. Buzan et al., Security: A New FrameworkforAnalysis (Lynne Rienner 1998) p. 23.
Mapping Militant Democracy' 247

Variation in party ban rationales captured in Bligh's distinction between Weimar

and legitimacy party ban rationales points to the malleability and evolving nature
of security concerns underpinning party bans, and thereby the suitability of
approaches, such as securitisation theory, focusing on discursive processes by
which democratic communities negotiate their way through the dilemmas posed
by the proscription of political parties. Differing conceptions of security, shaped
by varying historical experiences, may also help account for the tendency of
Western European democracies surviving World War II, or re-established in the
early post-war period, to ban parties in accordance with Brems' conception of anti-
democratic ideology, and post-communist states to invoke protecting the present
political order as grounds for banning parties. Such questions could be examined
in more detailed case studies of the party bans highlighted here, or examined in
relation to the practices of democracies in other parts of the world and during
other time periods.