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Defensive democracy is a term referring to the collection oflaws,delegated legislation, andcourt rulings which limit certain rights and freedoms in ademocratic society in order to protect the existence of the state, its democratic character and institutions, minority rights, or other aspects of the democratic system. The term is related to a conflict that may emerge in a democratic country between compliance with democratic values, particularlyfreedom of association and theright to be elected, and the goal of preventing anti-democratic groups and persons from abusing these principles.
In certain democratic states there are additional special distinctions, supported by a notable section of the population, which justify the use of defensive democracy. However, there are disputes on the question of which situations justify the use of defensive democracy without this being considered excessive repression of civil rights.
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The use of defensive democracy can be expressed via several actions applied to a person or group, such as:
As a rule, democratic countries try to not use the methods of defensive democracy too hastily or too severely, and seek alternative courses of action as much as possible, such as public information campaigns and condemnation of anti-democratic activates by respected public figures. However, there are situations where a state might recourse to defensive democratic methods (usually carried out by the court system or other state authorities).
The frequency and extent of use of defensive democratic methods varies from country to country. TheUnited States, for example, is considered a country that uses defensive democratic tactics frequently, especially after theSeptember 11 attacks and the2021 storming of the United States Capitol, whileItaly is considered a country which engages in defensive democratic courses of action sparsely.[by whom?]
Ten countries in Europe have outlawedHolocaust denial:France (Loi Gayssot),Belgium (Belgian Holocaust denial law),Switzerland (article 261bis of the Penal Code),Germany (§ 130 (3) of the penal code),Austria (article 3hVerbotsgesetz 1947),Romania,Slovakia, theCzech Republic (§ 405 of the Criminal Code),Lithuania, andPoland (article 55 of the law creating theInstitute of National Remembrance 1998).
InGerman politics and constitutional law the concept exists under the termwehrhafte orstreitbare Demokratie ("well-fortified",[1] "battlesome",[2] "defensive"[3] or "militant democracy"[4][5][6]) which implies that the federal government (Bundesregierung), the parliament (Bundestag andBundesrat) and the judiciary are given extensive powers and duties to defend theliberal democratic basic order (freiheitliche demokratische Grundordnung) against those who want to abolish it. The idea behind the concept is the notion that even amajority rule of the people cannot be allowed to install atotalitarian orautocratic regime, thereby violating the principles of the German constitution, theBasic Law for the Federal Republic of Germany. The German concept of defensive/militant democracy is a reaction to the experience of theWeimar Republic, whose liberal and democratic order was eliminated by the Nazi government – which came into office legally – and theEnabling Act of 1933. The lawyer and political scientistKarl Loewenstein who had emigrated from Germany to the United States in 1933, coined the termwehrhafte Demokratie as he was convinced that the Weimar Republic had not sufficiently defended its democracy against subversive elements that were attacking its foundations.[3][7][8]
Several articles of the German constitution allow a range of different measures to "defend theliberal democratic basic order".
According to the Federal Civil Service Act (Bundesbeamtengesetz) and the Civil Servant Status Act (Beamtenstatusgesetz), every civil servant (Beamter, a category that also includes most school and university teachers) is required "to stand up for the liberal democratic basic order (...) at all times". When they take up their duties, they are therefore sworn to defend the constitutional order. Applicants who do not guarantee to stand up for the democratic order can be excluded from the civil service. This was particularly strict during the period of the Anti-Radical Decree from 1972 to 1985 (in some federal states until 1991), when all applicants were screened by the constitutional protection authorities. Over 1,000 prospective teachers and university lecturers were rejected as "enemies of the constitution" (Verfassungsfeinde) – in most cases due to their membership in far-left organisations – which amounted to a professional ban (Berufsverbot).
In addition, Germany maintains a domestic intelligence service, theVerfassungsschutz (consisting of aFederal Office and 16State Offices for the Protection of the Constitution), one of whose main purposes is to investigate organisations whose activities are directed against the free democratic basic order (in particular far-right and far-left parties as well as Islamist extremists) – using both publicly accessible sources and undercover methods. The Federal Office for the Protection of the Constitution publishes an annual report with a list of organisations that it monitors for extremist tendencies. The organisations concerned can have their inclusion in this report reviewed by the courts.
Israel implemented the principle of defensive democracy, theBasic Law of the Knesset (Section 7A) which determined that "candidate lists would not participate in elections if its goals or actions, expressly or by implication, would deny the existence of the state of Israel as a Jewish state or deny the democratic character of the state of Israel."
Variouspolitical science researchers[who?] have perceived Israel as a democracy defending itself mainly from social and security constraints with which the state of Israel has been dealing since its creation. During the first three decades of its existence, most Arab countries did notrecognize the state of Israel's existence as legitimate. Through the years, concerns have been raised from within theJewish majority in Israel that theArab minority within the country, who consider themselves part of theArab world, would cooperate with the neighboring countries in theirstruggle against Israel. This situation has often raised the issue of a self-defensive democracy on the agenda in Israel.
During the 1980s, the issue was heavily discussed in a different context – for the first time in Israel's history, an extreme right-wing Jewish party (Kach), who rejected the state's democratic character and the rights of the Arab minority within the country, won representation to theIsraeli parliament in the1984 elections to the Knesset. As a result, in 1985, Israel's Knesset amended a basic law so that parties who engage in incitement to racism would be outlawed.[9] Accordingly, the Supreme Court did not allow the Kach party to run again in the1988 elections, on the basis that the party advocatesracism.[9]
Learning from legislation of West Germany, National Assembly of Second Republic inserted Defensive Democracy in their Constitution in 1960. Currently (as of 2022) in the Sixth Republic, it remains in the Constitution (§8(4) — esp. defensive democracy to prevent illegal parties) and has some procedures in other laws. TheConstitutional Court of Korea is in charge of deciding if a party is illegal and therefore should be dissolved.
For the first time since the Constitutional Court of Korea was created, in November 2013, the Justice Ministry of Korea petitioned the Constitutional Court to dissolve theUnified Progressive Party, citing its pro-North Korean activities such as the2013 South Korean sabotage plot. On 19 December 2014, the Court ruled 8-1 that the Unified Progressive Party be dissolved. This ruling was quite controversial in South Korea.[dubious –discuss]
Article 5 of theAdditional Articles of theConstitution of the Republic of China clearly states that any political party whose purpose or behaviour threatens the existence of the Republic of China or constitutional order ofliberal democracy is unconstitutional, and theConstitutional Court can dissolve it.
Article 8 of the1980 Constitution originally declared acts and groups promoting violence, totalitarianism orclass struggle as unconstitutional, as well as barring those found guilty of such from political and some civic activities for a number of years. As a result of the1989 referendum, multiple reforms to the Constitution were introduced, repealing Article 8 in its original form entirely, but amending Article 19 N°15 to replace it in much of its function (without a specific mention of class struggle), focusing on guaranteeing political pluralism and safeguarding the constitutional and democratic order.
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