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Should we outlaw hate-filled extremist parties?

by Jan-werner Mueller

The Greek government’s crackdown on the country’s far-right Golden Dawn party has revived a vexing question that seemed to have disappeared with the Cold War’s end: Is there a place within liberal democracies for apparently anti-democratic parties?

To be sure, liberal democracies have felt threatened since communism collapsed in 1989 — but mostly by foreign terrorists, who tend not to form political parties and sit in these countries’ parliaments.

So, should extremist parties that seek to compete within the democratic framework be outlawed, or would such a restriction on freedom of speech and association itself undermine this framework?

Above all, it is crucial that such decisions be entrusted to nonpartisan institutions such as constitutional courts, not other political parties, whose leaders will always be tempted to ban their competitors. Unfortunately the moves against Golden Dawn are mostly identified with the government’s interests, rather than being perceived as the result of careful, independent judgment.

On the face of it, democratic self-defense seems a legitimate goal. As U.S. Supreme Court Justice Robert Jackson (who was also the chief U.S. prosecutor at Nuremburg) put it, the constitution is not “a suicide pact” — a sentiment echoed by Israeli jurist Aharon Barak, who emphasized that “civil rights are not an altar for national destruction.”

But too much democratic self-defense can ultimately leave no democracy to defend. If the people really want to be done with democracy, who is to stop them?

As another U.S. Supreme Court justice, Oliver Wendell Holmes, put it, “if my fellow citizens want to go to Hell, I will help them. It’s my job.”

So it seems that democracies are damned if they ban and damned if they do not ban. Or, in the more elevated language of the 20th century’s most influential liberal philosopher, John Rawls, this appears to be a “practical dilemma which philosophy alone cannot resolve.”

History offers no clear lessons, though many people argue otherwise. In retrospect, it appears obvious that the Weimar Republic might have been saved had the Nazi Party been banned in time. Joseph Goebbels, Hitler’s propaganda minister, famously gloated after the Nazis’ legal Machtergreifung (seizure of power): “It will always remain one of the best jokes of democracy that it provided its mortal enemies with the means through which it was annihilated.”

A ban might not have halted the German people’s general disenchantment with liberal democracy, and an authoritarian regime still might have followed. Indeed, whereas West Germany banned a neo-Nazi party and the Communist Party in the 1950s, some countries — particularly in Southern and Eastern Europe, where dictatorship came to be associated with the suppression of pluralism — have drawn precisely the opposite lesson about preventing authoritarianism. That is one reason why Greece, for example, has no legal provisions for banning parties.

The fact that Greece nonetheless is effectively trying to destroy Golden Dawn — the parliament just voted to freeze the party’s state funding — suggests that, in the end, most democracies will want to draw the line somewhere. But just where, exactly, should it be drawn?

For starters, it is important to recognize that the line needs to be clearly visible before extremist parties even arise. If the rule of law is to be upheld, democratic self-defense must not appear ad hoc or arbitrary. Thus the criteria for bans should be spelled out in advance.

One criterion that seems universally accepted is a party’s use, encouragement or, at least, condoning of violence — as was evidently the case with Golden Dawn’s role in attacks on immigrants in Athens.

There is less consensus about parties that incite hatred and are committed to destroying core democratic principles — especially because many extremist parties in Europe go out of their way to emphasize that they are not against democracy; on the contrary, they are fighting for “the people.”

But parties that seek to exclude or subordinate a part of “the people” — for example, legal immigrants and their descendants — are violating core democratic principles.

Even if Golden Dawn — a neo-Nazi party in appearance and content — had not engaged in violence, its extreme anti-immigrant stance and its incitement of hatred at a moment of great social and economic turmoil would have made it a plausible candidate for a ban.

Critics warn of a slippery slope. Any disagreement with a government’s immigration policy, for example, might eventually be deemed “racist,” resulting in curtailment of freedom of speech. Something like the classic American standard — the speech in question must pose a “clear and present danger” of violence — is therefore essential.

Marginal parties that are not connected to political violence and do not incite hatred should probably be left in peace — distasteful as their rhetoric may be.

But parties that are closer to assuming power are a different matter, even if banning them might automatically appear undemocratic (after all, they will already have deputies in parliaments).

In one famous case, the European Court of Human Rights agreed with banning Turkey’s Welfare Party while it was the senior member of a governing coalition.

It is a myth that bans turn leaders of extremist parties into martyrs. Very few people can remember who led the postwar German neo-Nazis and Communists.

Nor is it always the case that mainstream parties can cut off support for extremists by selectively coopting their complaints and demands. Sometimes this approach works, and sometimes it does not; but it always amounts to playing with fire.

Banning parties does not have to mean silencing citizens who are tempted to vote for extremists. Their concerns should be heard and debated; and sometimes banning is best combined with renewed efforts at civic education, emphasizing, for example, that immigrants did not cause Greece’s woes.

True, such measures might come across as patronizing — but such forms of public engagement are the only way to avoid making anti-extremism look like extremism.

Jan-Werner Mueller is a professor of politics at Princeton University. His most recent book is “Contesting Democracy: Political Ideas in Twentieth-Century Europe.” © 2013 Project Syndicate/Institute for Human Sciences