Lecture 12 - Militant Democracy

What is militant democracy?

A democracy willing to take pre-emptive measures, even seemingly illiberal ones, to prevent anti-democratic forces from destroying the democratic regime.

Why is militant democracy necessary?

To stop groups from using democratic means, like elections or political parties to undermine or abolish democracy.

What are other names for militant democracy?

• Defensive democracy

• Fighting democracy

What warning did Karl Loewenstein give about democracy?

He warned that anti-democratic forces, like fascists, could exploit democratic institutions legally (as political parties) to gain power and destroy democracy from within.

What concept in German Public law is based on Loewenstein’s warning?

Militant Democracy

• The idea that a democracy can defend itself against anti-democratic movements, including banning political parties that threaten the democratic order.

What are the main elements of German militant democracy?

Protection of the free democratic order through:

• Limitations: Eternity Clause (Art.79(3)), Forfeiture of Rights (Art. 18)

• Prohibitions: Associations (Art. 9(2)), Parties (Art. 21(2))

• Surveillance: Verfassungsschutz (political intelligence/police)

What is the “Eternity Clause” in the German Basic Law?

Article 79(3) GG

• Protects key principles (Länder, Länder participation, Articles 1 & 20) from being amended.

Can the German constitution be amended to abolish democracy or human dignity?

No (“Eternity Clause” - Art. 79(3))

• Such amendments are blocked by the Eternity Clause.

What does Carl Schmitt say about constitutional amendments?

Amendments can change provisions but must preserve the identity and continuity of the constitution; they cannot destroy its fundamental basis.

Has the German Constitutional Court ever invalidated a constitutional amendment using Art. 79(3) GG?

No

• It has never been used that way.

What is the Verfassungsschutz?

Germany’s domestic intelligence agency tasked with monitoring threats to the free democratic order, security of the federation/Länder, or interference with constitutional bodies.

What was the Radikalenerlass (1970s)?

A law requiring public servants to show loyalty to the constitution; blocked or dismissed some employees deemed extremists.

What happened in Vogt v. Germany (1996)?

ECHR ruled that the Radikalenerlass violated human rights (freedom of association and expression).

Does Verfassungsschutz exist at the federal or state level?

Both

• There are federal and Länder-level offices.

Can Germany use surveillance and employment restrictions against politically extreme individuals?

• Surveillance allowed: Verfassungsschutz can monitor individuals/groups threatening the free democratic order.

• Employment restrictions prohibited: Mass loyalty checks like the 1970s Radikalenerlass are no longer allowed; people cannot be automatically blocked from public jobs for their beliefs (Vogt v. Germany, 1996).

Key point: Monitoring ≠ automatic professional penalties; action only if real threat exists.

What is Art. 18 GG and how has it been used?

• Allows the FCC to strip basic rights from someone who abuses them to attack democracy.

• Covers freedoms like expression, press, assembly, association, teaching, property, and asylum.

Rarely applied: 4 attempts since 1949, all unsuccessful.

Art. 21(1) GG

Political Parties

• Parties participate in forming the political will of the people.

• Must be freely established.

• Internal organisation must be democratic.

• Must publicly account for funds and assets.

What were Germany’s traditional “Volksparteien” and what is changing?

• Traditional: SPD & CDU/CSU

• Now: Pluralistic landscape, with more parties and coalition governments.

What principle governs state support for parties?

Equal Treatment Principle

• State resources (funding, buildings) must be equally available to all parties.

• Developed by the FCC (Federal Constitutional Court)

• Example: Municipal buildings, party funding etc.

When can a political party be banned under Art. 21(2) GG?

• If it aims to undermine or abolish the free democratic basic order, or

• Endangers the existence of the Federal Republic

• Decision made only by the FCC

What happens when a party is banned in Germany? (Art. 21(2) GG)

• MPs lose their seats automatically

• Ban applied to all party branches, affiliates, and successor organisations.

Which parties have been banned under Art. 21(2) GG?

• SRP (1952) - Neo-Nazi = banned

• KPD (1956) - Communist = banned

• NPD (2017) - Anti-democratic aims but no real threat = not banned.

Why does the FCC call Art. 21(2) GG the “sharpest but double-edged weapon”?

• Party bans strongly protect democracy

• But also severely restrict democratic freedoms

= Therefore, Art 21(2) must be interpreted restrictively.

What standards did the FCC set for banning a political party? (NPC Decision 2017)

Anti-democratic ideology alone is not enough

• The party must actively combat the free democratic order.

• There must be a concrete potential to cause real harm.

Why did the FCC refuse to prohibit the NPD?

• The NPD had anti-democratic aims, but no realistic potential to undermine democracy.

What are the four requirements for banning a party under Art. 21(2) GG?

1. Targeting the free democratic basic order

2. Seeking to do so (active, systematic conduct)

3. By undermining or abolishing it

4. Based on the party’s aims or behaviour of adherents.

What does the FCC mean by “free democratic basic order”?

• Human dignity (Art. 1(1) GG)

• Democracy (popular sovereignty, multiparty system)

• Rule of law (separation of powers, lawful administration, independent courts)

What does “seeking” mean in Art. 21(2) GG?

• More than ideology or speech

• Requires systematic action and qualified preparation

• Plus a realistic potential to succeed

• Violence or serious criminal acts may suffice

What does it mean for a party to “undermine or abolish” the free democratic basic order?

• Abolish: Eliminate the democratic constitutional order entirely.

• Undermine: Seriously weaken or suspend the existing constitutional order.

How does the FCC assess a party’s aims or the behaviour of its adherents under Art. 21(2) GG?

• Based on party programmes, official statements, speeches, and actions.

• Behaviour of members counts only if it can be attributed to the party’s will.

• Isolated or private acts by members are not enough.

What is the purpose of Art. 21(3) GG and why was it introduced?

• Allows exclusion of anti-democratic parties from state funding

• Introduced after the NPD decision (2017)

• Creates a less drastic alternative to party prohibition

• Decision lies with the FCC (Art. 21(4) GG)

Art. 21(4) GG

Only the FCC can decide to withdraw funding to a political party.

Why is banning the AfD under Art. 21(2) GG challenging?

• Early-stage parties may lack sufficient potential to threaten democracy → cannot meet Art. 21(2) criteria.

• Once established, banning is politically and legally harder despite anti-democratic behaviour.

What does the “dilemma of potential” refer to in militant democracy?

• The legal requirement for a party to have real potential to succeed in undermining democracy before it can be banned.

• Emerging parties often fail this threshold; established parties are harder to ban.

How can party behaviour relate to Art. 21(2) GG?

• Parties that deny equality or human dignity (e.g., against refugees or minorities) may be anti-democratic.

• This is a key factor for potential prohibition, but practical success requires public/political threat.