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.
We have already discussed poor arguments for banning parties in another newsletter. Well, actually I should formulate that more benevolently: less strong arguments. And in the previous newsletter, we looked at really good arguments for not creating the opportunity to ban anti-democratic parties.
In all honesty: while writing this series of newsletters I did not yet know what I would end up with: for or against party bans. But on the basis of the arguments below, I’ve come to a conclusion now. There must be a very strictly defined possibility to prohibit parties. The door must be ajar. But the door must be fitted with a swing bar lock, to prevent any miscreant from kicking the door all the way open.
We are going to talk about good arguments for a party ban.
Popper: the open society
In the previous newsletter, we discussed Karl Popper's plea to ban anti-democratic parties. We'll continue on that here. According to prof. Rijpkema, democracy is not a goal for Popper, but a means. He contrasts tyranny with an open society. Popper is not too keen on tyrants; he prefers open societies.
Popper was first and foremost a philosopher of science. Characteristic of open societies is that everyone can have their say, and can discuss things with each other. Government makes decisions, but if it turns out not to work, it can also reverse its decisions. Like in science: experiments are conducted, hypotheses are tested, anyone can criticise, and if a hypothesis fails, you try something else. Tyrants are like scientific charlatans: they are not open to falsification of their hypotheses.
Popper didn’t really define an open society very clearly. Yes, it has certain characteristics: peaceful deliberation, organised contradiction, ideals of freedom and tolerance and the pursuit of happiness. But the open society remains a vague concept, just like the tyrant. Who would want to start a party for tyranny, or a party against deliberation and the pursuit of happiness? Popper's charismatically formulated footnote unfortunately offers too little guidance for a manageable concept of democracy. Let alone a justification for a ban on a movement of opponents of an open society.
Rijpkema: the self-cleansing democracy
In his book Militant Democracy the legal philosopher Bastian Rijpkema (b. 1987) embraces the self-cleansing nature of democracy as an argument for banning parties. The seed for that argument had already been sown by Karl Popper (1902-1994), by the Amsterdam jurist George van den Bergh (1890-1966) and by the American jurist Samuel Issacharoff (b. 1954).
An autocracy is not self-cleansing in two ways:
In a democracy, there are stronger mechanisms for going back on earlier decisions.
You cannot get rid of an autocracy, even if it has been democratically decided to establish an autocracy. Establishing an autocracy is an irrevocable decision.
In a democracy, the people choose their own destiny. If it is democratically decided to lower the maximum speed, this will mean that motorists are not allowed to drive as fast. The people themselves are responsible for the consequences of their own decision. If the citizens do not like that, they will vote for a ‘vroom vroom’ party in the future, and the speed limit will be raised again. Democracy is self-cleansing in that sense. Any decision can be revoked, under pressure from the voter.
In an autocracy, it’s different. Even if you have the most enlightened despot in power, who has no problem with open debate, who holds open consultations about policy to be implemented, who has policy evaluated publicly, who dares to go back on decisions made, who admits mistakes. Even then the despot has the last word. There is no one to check whether the despot conscientiously heeds all criticism.
In an autocracy, the people cannot speak freely; no secret elections are being held. The dictator will therefore never know what the people really think. Think of Popper: the autocrat is a charlatan, a tyrant, because he does not have his hypotheses tested.
This argument is not strong. Voters for an autocrat, a strong man (m/f/x) so to speak, know that he won’t sit quietly for consensus to arrive. He is not appointed for that. He is appointed to make decisions, to clear up the mess. Voters don't vote for a strong man to mind a thriving store. In Belgium, the majority favours a strong man because democracy is holding itself in a headlock. The state institutions are incapable of carrying out much-needed state reforms.
And, of course, reversal of decisions is not limited to democracies: authoritarian regimes can do that too. Authoritarian regimes also need some popular support, or at least of the elites. Pure repression of everything and everyone will exhaust their country. One normally can't keep that up forever.
Popper favoured democracies because they produce better policies: the self-correcting mechanism corrects mistakes. Democracies, on average, often produce better governance, better policies, and happier populations. But that is not of decisive importance. The electorate is entitled to its own mistakes. Democracy is not there to protect voters from stupidities. More about that later.
The main problem with strong men is: you can't get rid of them. But we also need to nuance that.
First, authoritarian regimes are not forever either. Sometimes authoritarian regimes end through a coup or military intervention from abroad. But just as often it goes the other way. Think of the end of Francoism in Spain, the end of El Proceso in Argentina, the end of the junta in Greece, or the most salient: the fall of the communist regimes in Eastern Europe around 1990. It isn’t easy, and it is often accompanied by a serious crisis, an uprising, the use of force or external pressure.
But (secondly) so is democracy. Seen from the perspective of a fictitious, convinced anti-democrat: one can't get rid of a democracy that easily either. A coup d'état is a lot of hassle. Like dictatorships, democracies want to maintain themselves at all costs.
Now that we've peeled off the self-cleaning argument, what are we left with? That a democracy can’t take irrevocable decisions. But they do. Once a mountain has been excavated, you will never get it back. Constitutions are also, in a sense, irrevocable. Or the establishment of a hereditary monarchy. And what about the eternity clause in the constitutions of Brazil, Czechia, Greece, India, Iran, Italy, Morocco, Norway, Turkey and Germany?
An amendment to this Constitution (...) is not permitted.
Constitution of the Federal Republic of Germany, article 79 lid 3
The argument of self-cleansing democracy has attractive sides. But it is not strong enough for the possibility of imposing a party ban.
Is there anything left then? Yes, there is! The idea of the overlapping consensus of the old fox Rawls is decisive.
Rawls’ overlapping consensus
For John Rawls (1921-2002) the freedom and equality of people was not under debate. In his works, he was mainly concerned with the effect of these two principles, and their mutual relationship. Social justice based on freedom and equality, that was his ideal.
In the background was an abstracted social contract theory. He wondered: what principles of social justice would people choose in advance if they did not know what position they would have in any society. Rich or poor, religious or secular, majority or minority, you name it. He was certain that people would then in any case opt for maximum equal freedom, and for a degree of redistribution.
I don't think Rawls has ever clearly explained why freedom and equality are such undisputed starting points. It could well be that someone from a different cultural tradition would choose very different principles of social justice: harmony and merit, for example, or prosperity and order, or excellence and karma, for all I care.
But whatever principles of justice you have in mind, in a society you will have to work together. A degree of coercion is inevitable: you can't please everyone all the time. But this coercion must be perceived as fair by everyone.
In his book Political Liberalism (1993), Rawls recognises that democracy is not the ideal form of government for everyone. Some may prefer a theocracy, or a one-party state, or an authoritarian leader. Some may have very different moral ideals than freedom and equality. Some may want to introduce the sharia, or radical redistribution, or the abolition of money.
But reasonable proponents of such radical views will have to admit that not everyone shares their ideas, for now at least. That they are at least allowed to advocate their own ideals, is second best to them. They naturally prefer to see their ideals realised, but they are fully aware that rival idealists want that too. Rather the freedom to practise your own religion than the communists coming to power, who will introduce a ban on religion. And vice versa. A liberal democracy is not ideal for everyone, but at least it is second best.
Against this theory of the overlapping consensus there is little to add. Yes, liberals get their way, but at least the system is palatable to everyone. This gives the system legitimacy and stability. It is a strong argument to make democracy resilient against movements that want to destroy the system of overlapping consensus.
But we have to be precise. The nature of an ideological movement is that it wants to impose its ideals on the whole country. Whether that is a welfare state, or low corporate tax, or a bible placed next to the speaker in parliament.
Which measures harm overlapping consensus, and which fall into the first category, that of rivalling ideals? The overlapping consensus is being harmed if a party claims more room to move for themselves than for the others. For example, by striving for a one-party state, or by not holding elections once they’re in power. Or by granting their own party certain advantages that others do not receive: campaign financing, for example, or more media attention. Or by appropriating their own party's political influence over court decisions.
On the other hand: overlapping consensus isn’t being harmed by excluding a party that wants to harm the overlapping consensus itself.
There are therefore two legitimate motives for excluding parties:
Parties that want to get rid of the system of overlapping consensus.
Parties that strive for more privileges, more room to move for themselves than for rival parties.
But we are not there yet. There are more arguments to make democracy resilient.
The defence of the liberal democratic constitution
Many people think that defending democracy is not about democracy as a procedure, a single principle (the majority rule), but about a substantive democracy. What they want to defend is the liberal-democratic rule of law. Anyone attempting to overthrow that must be disqualified.
It is not always entirely clear what we mean by the liberal democratic constitution. Let me just throw at the features, I hope I didn't miss any important ones.
Separation of powers between the executive, legislature and judiciary. The judiciary is independent.
Citizens can invoke constitutional rights, including freedom and equality rights.
Usually a liberal state under the rule of law has a representative democracy, with an elected parliament.
Government is bound by laws. Citizens can tackle the government on the basis of those laws.
There is a free, diverse press; the liberal-democratic state ensures that all opinions are heard and given space and that no information is withheld.
Citizens and companies generally have a fair degree of economic freedom and a right to property. There is an essential role for the market mechanism.
The liberal democratic state should also have an eye for the interests of minorities; there is no “tyranny of the majority,” and the government strives for peaceful and respectful treatment of minorities.
If you also want to protect elements of the liberal-democratic constitutional state against the will of the majority, you will need good arguments. Let's take a look at the arguments that I can think of.
Certain principles stem from universal law
There is universal law that applies to all people and that everyone must adhere to. Often, supporters of this view hold that right is given by nature, hence the term natural law. It is an important source of inspiration for universal human rights, as laid down by the United Nations, for example.
But I’m not on that side. Even if you think there is a natural law, it turns out to be very difficult to define. Many natural law thinkers believe that natural law has been entrusted to us by a supreme being. But the existence of supreme beings who give us precepts is highly speculative.
One might also say that natural law follows from the natural laws. But David Hume wrote as early as 1739 that knowledge of nature in itself does not give us knowledge of morality. In his own words, “nature places as little importance on good over evil as it does on heat over cold.”
One might also relate universal law to the vague concept of human dignity. But as early as 1840, Arthur Schopenhauer called that notion “rubbish of confused and empty-headed moralists who hid behind that imposing expression their lack of any real moral basis, or at least one that had any meaning.” And he was right about that. I will devote a later series in The Toleration Campaign to human rights, in which attention will also be paid to the receptacle of human dignity.
In short: universal law cannot be defined, cannot be substantiated and whether it exists is highly controversial. Therefore, universal law lacks a basis for prohibiting the electorate from rejecting liberal democracy.
Rule of law as an end in itself
Let’s take a look at the concept of the rule of law, or Rechtsstaat in German and in Dutch. It has many fathers and many children. It started as an idea that the government should be bound by rules. But the concept of the rule of law gradually became something that the Americans call a Dutch party, and which the Dutch, intriguingly, call an American party. All guests bring their own food, and everyone eats each other's delicacies. The meaning is therefore hard to define. In any case, it is certain that the concept of Rechtsstaat was originally not democratic at all.
For a philosophical underpinning of the concept of rule of law, we first look at Immanuel Kant (1724–1804), although his political theory is less consistent than his moral theory. While Kant's moral theory is astonishingly well constructed , the link with his political theory is not always solid, and he even occasionally uses rather pragmatic reasoning. Kant was old when he wrote it, and perhaps he had to watch his words too; his king was not too fond of overly revolutionary ideas.
It would go too far to discuss Kant's political theory in detail here. The core is a social contract of autonomous citizens. Citizens have legal freedoms. Citizens have access to justice. The administration must see to it that the moral law is not violated by the citizens. The administration itself must be constitutionally limited against arbitrariness.
Kant was ambivalent about democracy. The people had to participate, yes, but that could also be done in for example a participation council. He rejected direct democracy, which he considered despotism, destructive to the social contract. He preferred consultation.
If you must formulate the essence of rule of law, or Rechtsstaat, then it lies in the role of the law, not in democracy. A constitutional state without democracy is quite conceivable, as long as the administration adheres to the rules. There is an independent judge. There is a constitution to which the government is bound. Government may not act arbitrarily. The law must be predictable; citizens should not be faced with surprises.
All in all, we come to the conclusion that the concept of rule of law does not stand in the way of the abolition of democracy. If you regard the concept of rule of law as something that cannot be changed anyway, then you mainly end up with legal principles and constitutional freedoms that the voter should not touch, and an independent judiciary. The philosophical basis of an unassailable Rechtsstaat is not very solid in itself.
But at the same time, the idea of rule of law is hardly controversial. No sensible person wants to challenge the independence of the judiciary or the fact that there are constitutional restrictions on government.
Liberal democracy is better for humanity
A reader rightly pointed out to me that there is a clear correlation between democracy and happiness. People are, on average, happier in liberal democracies. One can of course come up with all kinds of lame provisos, but let's not get into that. Let's suppose it's true. Is that a sufficient reason to ban people from abolishing liberal democracy?
That would assume that one can forbid people to make choices that are bad for them, that make them less happy. That is a very paternalistic argument. There is a lot to say about that; I'll keep it short here by referring to John Stuart Mill’s harm principle: coercion is only allowed to prevent people from harming others. For harm to oneself, persuasion should suffice. One might argue that the majority can also harm a minority by making wrong choices. We’ll get into that shortly. By the way, in this Toleration Campaign, I'm going to dedicate a whole series to paternalism.
Another thing. In practice, democracies make all kinds of choices that are bad for them. Imprudent fiscal policy being pursued, corruption not being tackled, energy transition being thwarted, think of more examples yourself. Democracy also means that voters are allowed to do stupid things (which they can revert later).
Should the good suffer among the bad?
The will of the majority is different from the will of everyone. Suppose the majority chooses to abolish the liberal-democratic constitution. That is sad for the minority, who attach great importance to it. More than sad, even. What if it is that minority who has the most to fear from the abolishment of constitutional democracy?
To take any Latin American country A as an example, where there is a large gap between rich and poor, and the poor are the majority. The poor majority opts for a dictatorship where all businesses are nationalised, free press is abolished and the judiciary is brought under political control. The population, including the wealthy, falls into deep poverty and the country is close to bankruptcy.
Compare that with a neighbouring country B. There is just as big a gap between rich and poor, with the poor in the majority. The Social Democrats get a large majority of the votes. Parliament will continue to function, nothing will be nationalised, the free press keeps free rein and the judiciary remains independent. Nevertheless, a disastrous economic policy is being pursued. The population, including the wealthy, falls into deep poverty and the country is close to bankruptcy.
From the point of view of protecting minorities, why should there be an intervention in country A and not in country B? The position of the (formerly) wealthy minority is equally bad in both countries.
It could be different if you apply a special characteristic of the liberal-democratic Rechtsstaat: adequate protection of minorities. In theory, there should be a duty on the part of the government to also stand up for the rich. But in practice, the protection of minorities is often a mere guess, even in democratic states under the rule of law, especially if it does not concern ethnic or religious minorities.
Anyway, we still kept it relatively decent. Let’s make it worse.
What if the majority really crosses the line?
Suppose, in a ficticious Balkan country, the Slavic population group forms the majority. But there is also an ethnic Albanian minority, mostly Muslim. An ultra-nationalist Slavic party wants to get rid of that minority, willingly or unwillingly. The plan is: give every member of the minority the opportunity to leave the country. Those who do not, are placed in concentration camps with barely any food, without clean drinking water and without medical care. The deaths in those camps will be massive.
Genocide is bad. If that does happen, the international community will undoubtedly intervene. After the necessary warnings, there will likely be an international intervention force. The government is being discharged and the country will probably lose much of its sovereignty for years to come.
One should not want that. The ultra-nationalist party must be fought. The same applies to a party that wants a peaceful neighbour to be attacked.
But should the party also be banned? Is there perhaps a difference between what states may or may not be allowed to do and what parties are allowed to advocate? Should political parties be given more space to propagate than what states are allowed to do? In the electoral process, opponents can then argue that what that party wants is contrary to the international legal order, and that this will lead to international intervention. The international community can also play a part in this, by publicly declaring where the boundaries lie, and by promising real intervention if the ultra-nationalists carry out their plans.
Apart from this international dimension, if the Slavic ultra-nationalists are to be banned, what would be the basis of that ban? I had just been lecturing that universal law offers too wobbly a basis for a ban on political parties. Now we might end up there anyway. A somewhat cowardly solution is to look at a ban on violence. The plans of the ultra-nationalists will inevitably lead to violence. The same applies to the political party that wants to invade a neighbouring country.
A better solution is not only to prohibit parties that use violence, but to broaden that prohibition to include international crimes. Genocide is an international crime. Incitement to acts of war with friendly states should perhaps also be. I would also not like to allow a political party that is systematically guilty of extortion or corruption, but that is usually already covered in most countries.
On the other hand, this opens a very tempting shortcut for opponents to get a political rival banned. A fictitious example: suppose there is a party of cattle farmers that causes a lot of controversy. Their opponent could then try to legally declare cattle farming a crime. A simple majority in parliament would then suffice to ban the cattle farmers' party. Anyway, this problem might be resolved with some legal fine tuning..
Compelling arguments summarised
Above, we saw all sorts of possible arguments for a ban on parties based on a substantive view of democracy. Some arguments held up, others failed. I will briefly summarise which arguments hold.
On the basis of Rawls's overlapping consensus, parties should be banned that demand more room for themselves or their movement than others or who want to get rid of the system of overlapping consensus.
Not only violent movements, but also movements that routinely commit international crimes or encourage the commission of such crimes should be banned.
I’m in doubt about political parties that want to challenge the independent judiciary or constitutional restraints on the government. The philosophical basis of those elements of rule of law is weak, but no sensible person is striving to challenge them. To be on the safe side, one might include it, but very narrowly formulated. One should not want a political party to be threatened with a party ban that wants to implement changes in good faith.
This is the fifth 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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