For these reasons, banning anti-democratic parties is a bad idea
This newsletter contains the arguments against party bans. But in the next newsletter I will present the arguments in favour of a party ban.
This is the fourth newsletter in the series on political toleration. Earlier, we dealt with the emergence of Fascism in Italy in 1924, historical situations in which the voter had had enough of democracy, and philosophical reflections on the paradox of toleration.
In this newsletter we will discuss arguments against a ban on anti-democratic parties. The next newsletter will appear later this week. It discusses the arguments for a ban. In the last newsletter in this series, I will come to a conclusion.
In the previous newsletter, we saw that the philosophers are still struggling with the paradox of toleration. The following arguments came alongside:
Those who do not grant toleration to others may not appeal to toleration for themselves either.
Democracy is fragile, but it should not be abused. Democracy must be able to arm itself against its own demise.
The core of democracy is peaceful deliberation and organised dissent. Anyone who opposes this, wants to establish a tyranny, and that is a criminal act.
If your (political) freedom is threatened, you must be able to defend yourself.
Of these arguments, only the third, Karl Popper's argument, actually holds. We will come back to that in the next newsletter.
This week we look at arguments against banning anti-democratic parties, starting with that of Hans Kelsen.
Hans Kelsen: Democracy cannot defend itself by giving itself up
The Austrian legal scholar Hans Kelsen (1881-1973) is known as a legal positivist par excellence. Legal positivists see no necessary connection between applicable law and morality. The law is not always fair. It would be nice if applicable law and morality overlap, but that is not always the case.
Kelsen had to flee from the Nazis in 1937. But even after the Second World War, he still believed that a democracy should also be open to anti-democratic parties:
If democracy is a just form of government, it is so because it means freedom, and freedom means tolerance. If a democracy ceases to be tolerant, it ceases to be a democracy. But can a democracy be tolerant in its defense against anti democratic tendencies? It can—to the extent that it must not suppress the peaceful expression of antidemocratic ideas.
It is just by such tolerance that democracy distinguishes itself from autocracy. We have a right to reject autocracy and to be proud of our democratic form of government only as long as we maintain this difference. Democracy cannot defend itself by giving itself up.
But to suppress and prevent any attempt to overthrow the government by force is the right of any government and has nothing to do with the principles of democracy in general and tolerance in particular. Sometimes it may be difficult to draw a clear boundary line between the mere expression of ideas and the preparation of the use of force; but on the possibility of finding such a boundary line depends the possibility of maintaining democracy. It may be that any such boundary line involves a certain risk. But it is the essence and the honor of democracy to run such risk, and if democracy could not stand such risk, it would not be worthy of being defended.
— Hans Kelsen, What is justice? (1957)
Kelsen accepts the risk that voters will want to get rid of democracy. The voters are in charge, that is the hallmark of democracy. If you take away that say from the voters, then you are no longer a democracy.
If democracy cannot handle such a risk, it is not worth defending
Kelsen draws the line at violence. Violence is not part of the democratic game. Groups dedicated to this do not deserve protection. It is sometimes difficult to draw the line between democratic action and violence. Consider, for example, demonstrations that get out of hand, or radical violent supporters: it will sometimes be difficult to determine whether the party can be held responsible for this. Let it be so, says Kelsen.
Just as the ultimate consequence must be accepted: that democracy will end because the majority wants it.
It is Kelsen's formal approach. The essence of democracy is a bare concept. In short: the majority decides. If the majority wants someone else to decide from now on, so no longer the majority, then that is a great pity, but so be it. A democracy that imposes restrictions on what the majority may think is no longer a democracy. The majority rule is such an important principle; if you put that aside, you undermine everything that makes a democracy so great.
Kelsen's argument is very strong, and it has many supporters. I too am intuitively inclined to follow Kelsen's straightforward reasoning.
And there are more good arguments against a ban on anti-democratic parties. Here is an overview.
Arguments against party bans
Democracy is the best defence of democracy
If you don't like a political party, you have a whole arsenal of resources. This applies all the more to political parties that accuse another party of anti-democratic tendencies. There are election campaigns, you can debate, you can make flaming speeches, you can vote against them, you have access to the media. The best defence against anti-democrats is to apply democratic means to win over the voters.
The voter's wish is ignored
Anyone who bans a party actually gives its supporters the finger: you are not allowed to participate, your opinion does not matter. A party ban is paternalism. It is a very heavy remedy that you should only use if there is really no other way.
The risk of broad wordings
I was a member of a polling station a few years ago. A celebrity walked in. He had his election form with him, but he had forgotten his passport, he could not identify himself. All members of the polling station knew who he was, he didn't need a passport for that. Still, we had to send him back. The process of elections is so important that the rules must be followed closely. An appeal to underlying principles (we all knew who he was) is not sufficient in such a case.
Democracy can be traced back to (among other things) ideals of equality and liberty. But that does not mean that those principles themselves should be leading to a ban on political parties. If you want to make a party ban possible, you need strict rules. It is not enough to say: parties that want to limit equality and liberty must be banned. That creates too much uncertainty and the risk of occasional arguments.
If you want to ban parties on the basis of ideals such as equality and liberty, then you are actually saying to the voter: dear citizen, you may think that we are a democracy, but in reality, we are a liberty and equality project. You may vote, but only on the interpretation of those principles. If you reject them, you are out. Democracy then becomes an ornament. It's nice for the people to think they're in charge, but actually they should know better.
Abuse of the party ban
A ban on parties lends itself easily to abuse. For democratically elected rulers, the temptation can be great to have rivals or opponents banned.
For example, in Turkey the secularism of the state is enshrined in the constitution. A party that wants to get rid of that secularism, is it anti-democratic? I would say no, at least not necessarily. If I counted correctly, Turkey currently has more than a dozen banned political movements: Kurdish separatist, communist or Islamist, but also the rather moderate Hizmet movement. That can mean two things. Either democracy in Turkey has many opponents. Or the regime has no need for critical opposition. I think both are somewhat true.
In the Netherlands, the social-liberal government party D66 is strongly committed to the rapid introduction of the Political parties act. With a view to the possibility of prohibiting parties. At the same time, D66 is a fierce opponent of the right-wing nationalist opposition party Forum for Democracy, and accuses that party of everything that is evil. That can hardly be a coincidence. Presumably, D66 is heading for a party ban for Forum for Democracy. Something similar is going on between the leftwing German governing party Die Grüne and the right-wing nationalistic opposition party Alternative für Deutschland.
What if government parties are not served by an overly assertive opposition?
There is a real risk that political parties will use their power to eliminate rivals and political opponents through banning. That becomes even more of a risk when it comes to government parties that are not served by overly assertive opposition. A party ban for those reasons would be a form of spoilage that could get seriously out of hand.
So you have to be very careful when formulating a possible law that allows a ban on parties. Anyone who wants to ban an anti-democratic party will have to formulate that ban very sharply. What is allowed, what is forbidden? Broad formulations with vague standards are indeed very risky. Independent judges also have to deal with legislation, and therefore with the instructions of a parliamentary majority. Legitimate objections from opposition parties could be overruled in parliament.
The signalling function of anti-democratic parties
If an anti-democratic movement emerges, it is for a reason. It is an important social signal that something is very wrong in the democratic process. If you forbid such a movement, then that is actually a missed opportunity. In fact, the elites should ask themselves what the breeding ground of this dissatisfaction is, and how to respond to it through democratic means. If you forbid the movement, you have lost a barometer of dissatisfaction.
In January 2023, a Belgian research published that 59 percent of the electorate would now support an authoritarian leader who does not care about the judiciary or the press. The fact that the majority of Belgians are anti-democratic does not go into my mind. No, the Belgians are tired of the hopeless clusterfuck of Belgian democracy. Get it overhauled, and Belgium will immediately be full of full-blooded democrats again.
Too many restrictions could hinder innovation
One of the strongest arguments for toleration is that uncomfortable things can make the system stronger. This is especially true for opinions: a culture of contradiction can bring you closer to the truth, makes more innovative and prevents tunnel vision. I don't see why democracy should be exempt from that. Opposition can also make political systems stronger.
Democracy is not a form of government for frightened people, not for people who are afraid of any political movement or any political change.
— Carel Polak, Minister of Justice, 22 May 1968, Proceedings of the Dutch House of Representatives 1967/1968, p. 2131 ff.
Democracy is not perfect. Representative democracy, in particular, has many deficiencies. There will be a separate newsletter about that later; the list is long.
Two cheers for democracy. One because it admits variety and two because it permits criticism. Two cheers are quite enough: there is no occasion to give three.
— E.M. Forster, What I believe (1938)
A very short selection:
It fuels dissension because no one has the common interest in mind.
Democracy attracts the wrong kind of people seeking office.
Moral hazard for politicians.
The apathetic voter is ill-informed and easily manipulated.
The best argument against democracy is a five minute conversation with the average voter.
— Attributed to Winston Churchill (but presumably wrongly)
Our parliamentary system dates back to the days of the stagecoach and the barge. Thinking about improving our democracy should not stand still. With the current technological possibilities, for example, there is much to be said for the introduction of direct democracy.
Parties with suggestions for meaningful improvements should not be inhibited by the sword of Damocles of a party ban.
Anyone who really wants to abolish democracy must come from good family
Earlier, I wrote that it has never happened in history that the majority of voters voted for a party that openly promised to abolish democracy. Sometimes it was close, but it is still a good indication that we should not make the risk bigger than it is.
In addition: those who want to abolish democracy do not need a simple majority of the votes. It is not for nothing that we have a constitution that you cannot change just like that: a heavy process applies. To have it amended, a vote in favour with two-thirds of the vote twice, in both chambers of parliament. The European Union and the Council of Europe are also keeping an eye on things. A country that actually abandons democracy will lose its membership in both organisations, will be hit by international sanctions, and will become a pariah in the international community.
We don't need to talk about violent parties
No one disputes that violent organisations should be banned, no sensible person doubts that. In the 1920s there had been every reason to ban Mussolini's fascist party for that reason.
Was that it then?
Summarising the arguments:
A democracy that gives no room to its opponents is no longer a democracy. In a democracy you can say anything, including the opinion that democracy is an evil that we should get rid of.
Democratic parties have a whole arsenal of democratic means at their disposal to combat anti-democratic parties. If you do that right, you don't have to rely on a party ban.
Banning a party not only disqualifies a party, but also its supporters. Voters are being told that their opinion is not only wrong, it doesn't even count. Not only is this incorrect in principle, it is also the quickest way to get a group of citizens to drop out permanently.
Anyone who justifies a party ban on the basis of a substantive conception of democracy (it is not about the rules of the game, but about the underlying values of democracy) loses sight of the fact that those rules are there for a reason. The democratic process involves such weighty interests that the rules of the game are essential. An appeal to vague norms provokes occasional arguments and turns the democratic process into an ornament of a freedom and equality project.
The possibility of a party ban leaves the fox to watch the geese. Political parties, especially government parties, are tempted to frame overly assertive opposition parties as anti-democratic or unconstitutional.
Those who want to ban parties also lose an important indicator of dissatisfaction among the electorate. Voters are usually not anti-democratic in principle, but they see that democracy has stalled, and they see no other solution.
It’s like lying in bed at home while there’s a burglar in your house. The alarm is going off. You turn it off. Problem solved, you can get back to sleep.An overly broadly formulated ban on parties suffocates. Democracy is anything but perfect, but the political establishment does not always have an interest in improvements. A party with innovative ideas should not be hindered in this by an overly broadly formulated prohibition.
The Constitution and international treaties already contain such strong guarantees for the maintenance of democracy that a party ban is actually overkill. It is inconceivable - also from a historical point of view - that there will ever be a two-thirds majority in favour of abolishing democracy.
Whoever appeals to the examples of Mussolini and Hitler for a party ban is using a populist argument. Such violent parties would have been banned here long before they came to power, on the basis of legislation that has been in effect for more than a century.
Don't get too excited, we're not there yet!
You may have been convinced by now: that party ban should be thrown in the trash. But then you really go too fast.
At the end of this week we will get to good (and less good) arguments for banning anti-democratic parties under very restrictive conditions. And in the next one, we shall conclude the subject of political toleration.
This is the fourth episode in a series about political toleration. Here’s an overview of the articles in this series:
How Mussolini had a leader of the opposition assassinated
The assassination of the socialist politician Matteotti in 1924. The Italian elections of 1924 gave a majority to a dictatorship. In hindsight, should Mussolini's party have been banned?
What if the voter is fed up with democracy?
Is there a real danger that voters will want to abolish democracy? Or is it mainly a theoretical problem? The history of democracies that gave themselves up.
Should there be political toleration for intolerance?
Dead philosophers pondering the paradox of toleration. Is there room for anti-democrats in a democracy?
For these reasons, banning anti-democratic parties is a bad idea
In a democracy, the majority decides. If the majority wants someone else to decide from now on, so no longer the majority, then that is a great pity, but so be it.
These are good arguments for banning a political party
Non-violent parties should be banned that demand more room for themselves than for others, or who want to get rid of the system of overlapping consensus.
When should a political party get banned?
Let the voter decide. Except when free and fair periodic elections or unlimited opportunities for public discussion and unlimited provision of information are under threat.
How democracies can become tyrannical
Traits of intolerance in the democratic system. About discord and the common good, the tyranny of the majority, apathy, public choice and pathologic politicians.
Better alternatives for parliamentary democracy
Parliamentary democracy as the least intolerant system. Looking for a system with more legitimacy. About systemic criticism, Habermas' deliberative democracy, digital democracy, and sortition.
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