Democratic Militancy and Democratic Rule:
Party ban in Western Europe
Giovanni Capoccia
Oxford University, and Radcliffe Institute, Harvard University

This version: March 2007

Work in progress.
Not to be quoted or cited
without the permission
of the author
Comments welcome

Introduction

Why do governments and courts in some democratic system react to the challenge of extremist political parties with a legal ban, while in other democracies the presence of extremist parties seems to be tolerated? While banning a party is an extreme measure in a democratic system, it seems to have been not uncommon a practice in many democracies in recent years: political parties have recently been the object of legal and judicial bans in Israel, Turkey, India, and other non-Western democracies. Interestingly, this phenomenon is not at all alien to the more affluent and stable Western European democracies. To take only recent examples, in 1998, in the Netherlands, the Centrumpartij ’86 was banned for propagating racist ideas; in 2000, in Germany, both the Federal Government and the two Chambers of Parliament appealed to the Constitutional Court in order to ban the extreme right-wing Nationaldemokratische Partei Deutschlands (National Democratic Party of Germany) for its resemblance with the interwar NSDAP and its attacks to the basic liberal democratic order of the Republic; in 2002, the Spanish government banned the Basque autonomist party Batasuna for its organic connection with the terrorist group ETA (e.g. Turano 2003); in 2004, in Belgium, after a prolonged judicial battle, the Courts declared illegal three associations embedded in the organization of the extreme right-wing Flemish nationalist Vlaams Blok, forcing the party to re-found itself on partially different political bases and change its name into that of Vlaams Belang (e.g. Erk 2004). Earlier decades are rich of examples too.
Even a brief perusal of these and other cases of party ban shows at least two kinds of interesting variation that are in need of explanation. First of all, some of the banned parties, such as, for example, the Finnish Communist Party of the inter-war years (Capoccia 2005), or the already mentioned Turkish Refah Partisi, had a very respectable size, which could justify, in the abstract, their perception as serious threats for the political establishment. Other banned parties, however, such as the above-mentioned Dutch CP ’86, or the German Freiheitliche Arbeiterpartei (Liberal Workers’ Party, FAP—a neo-Nazi party), banned by the government in 1995, were rather clear examples of Justice Oliver Wendell Holmes’ ‘poor and puny anonymities’ that were far from posing a danger to the regime (quoted in Tribe 1978, 611). What accounts for such differences?
Moreover, it is possible to identify, next to the banned parties, the existence of other parties that, according to the criteria spelled out in the law, and in some cases further specified by the government, could have been object of a legal ban, but were not. For example, while the Italian post-WWII legal system provides, both in the 1948 Constitution and in several statute laws passed in the subsequent years, for the illegalization of neo-Fascist parties, the Movimento Sociale Italiano (Italian Social Movement), a clear successor party of Mussolini’s National Fascist Party, was tolerated throughout its entire existence, which ended, for internal transformation, in 1994. To give another even more striking example, the German Deutsche Volks-Union (DVU, German People’s Union), created as a political party in 1987 after several year in which existed as a political association, was constantly described in the reports of the German Office for the Protection of the Constitution (a government agency that monitors political extremism) as being in active violation of the ‘basic liberal democratic order’ (Verfassungsschutzbericht, various years). According to art. 21.2 of the German Grundgesetz, this violation is a sufficient criterion to ban a political party. Yet, the party as such was never prosecuted. While in some cases the law is not specific enough to establish, by objective analysis, whether a party is ‘bannable’ or not, the cases mentioned above are quite clear-cut, and others can be added to the list.
This variation has not been tackled by the existing literature on party bans, which, while including some classical and interesting contributions, is relatively scarce and non-cumulative. The largest number of contributions on this and related themes consist of single-case studies, and tends to concentrate on a handful of relatively well-known cases. The rich literatures on Turkey (e.g. Yuksip 1999; Kogacioglu 2004), and Israel (Pedahzur 2002; Cohen-Almagor 2000), for example, are testimony of this tendency. Empirical, normative and legal literature on party bans also almost never fails to analyze the system of streitbare Demokratie (the post-war West German version of ‘militant democracy’) in force in the Federal Republic of Germany (Lameyer 1978; Bulla 1973; Leibholz 1973). Concentrating attention on some cases in which party bans have been relatively frequent, however, risks giving a biased account of the phenomenon in question, unduly neglecting other cases in which bans have been less frequent yet important, and others yet in which bans could have happened but did not. This double level of selection bias is not satisfactory addressed in the literature.
In general, legal and empirical studies on party ban generally consider the whole roster of measures that a democracy can take against political extremism, and analyze most often one (e.g. Pedahzur 2002; Cohen-Almagor 2000; Jaschke 1991; Esplugas 1998) or at most two or three countries (e.g. Boventer 1985; Canu 1996). These studies, therefore, do not normally develop concepts which are fit for comparisons, even middle-range or area-based ones. A notable exception is the classic work by Kirchheimer (1961) on Western democracies, which however does not consider all evidence available at the time and obviously is linked to a different period, having been written almost half a century ago. Some other studies concentrate their attention on the consequences rather than the causes, of repressive measures more generally (e.g. Minkenberg 2003) and party bans more specifically (e.g. Bale 2004). Finally, more recently, political theorists have scrutinized the normative bases on which parties have been banned in democratic systems, offering different but overlapping catalogues of normative ‘paradigms’ that have been used in the public debate to justify the banning of extremist political parties (e.g. Niesen 2002; Rosenblum 2007).
In general, a government’s actual decision to ban a party (or to appeal to a court of law to get a party banned, depending on the legal system of the country) is irreducibly contingent and dependent on local and contextual circumstances. Bans are generally quite ‘costly’ decisions (in terms of feasibility, popularity, effectiveness), and a government will go down that route only after considering all alternatives and carefully weighing the pros and cons of that decision. Pragmatic and normative considerations, which are strictly linked to the country’s history and current political conjuncture, will enter the political calculation that leads to the decision. Moreover, the internal dynamics between the different parties composing the government (in Western Europe, which is the object of this analysis, governments are often supported by a coalition of parties), and between those and the mainstream opposition, may also exert a decisive influence on the government’s decision.
As I show in the paper, however, this does not mean that comparison is unfruitful: if systematically comparing party bans (and non-bans) is unlikely to arrive to an exhaustive explanation of all the micro-factors that determine a democratic government’s decision to ban an extremist party or to refrain from it, comparison can certainly highlight interesting patterns that influence that decision in a systematic way.
The first point that the analysis shows that some legal basis is a necessary condition to ban a party: the government always refers to some legal basis, however broad or even controversial. In Western Europe, in a minority of countries the government can ban a party by decree (based on a law or the constitution), and the decision will be subject to judicial review. In a majority of Western European democracies, instead, a party can only be banned by a judicial decision: the government can only access the court through the public prosecution service, and the court will then rule on the ban. Where an interesting and clear pattern emerges is in the nature of the legal rules that the government (and the court) can appeal to in order to ban an extremist political party. I distinguish between ‘targeted’ and ‘neutral’ legal paradigms (a term that indicates a coherent system of rules). The main difference between the two lies in how clearly the extremists are defined in the law. Party ban is much more difficult, and much more costly, under a ‘neutral’ paradigm than it is under a ‘targeted’ one, where extremists are defined more clearly. I illustrate the two categories with the analysis of the Western European experience since 1920; in particular, I compare the cases of party bans under the original ‘militant democracy’ paradigm, which was decidedly ‘neutral’ in its approach, with the party bans that took place under the ‘targeted’ paradigm of ‘anti-Fascist’ rules which were passed in several Western European democracies after WWII. In the conclusion, I briefly extend the analysis to another ‘targeted’ legal paradigm typical the more recent experience of Western European democracies, that of ‘anti-racism’ rules, which mutatis mutandis show a similar pattern to that of ‘anti-Fascist’ rules.
The paper proceeds as follows: in the next section, I discuss in more detail the literature on party bans; in the one that follows, I lay out some theoretical observations and discuss alternative hypotheses for the explanation of party bans; after that, I analyze data relative to the Western European democracies between 1920 and today. The conclusion summarizes the findings, and discusses briefly the experience of anti-racism laws and racist parties, which broadly confirms the findings of the main analysis.

Party ban in the literature

The existing literature on the determinants of party bans in democracies suffers from two general flaws: fragmentation between legal, empirical, and normative analyses; and selection bias. Many studies on party bans are legal more than empirical: their perspective is that of constitutional lawyers, and keeps the political, institutional and cultural aspect on the background. Empirical studies, on the other hand, often fail to give full appreciation to the importance of the laws and their judicial interpretation as an important determinant of party bans. Normative studies take yet a different perspective, highlighting the cultural factors that influence the banning of a party but largely ignoring the larger institutional context.
The other problem of the existing literature has to do with selection bias. Not only do many studies on party ban deal with one country only (or at times with one specific case of ban). They, as a whole, concentrate on a small number of countries, in which bans have been particularly frequent and discussed. These countries are often present in (and virtually in all cases constitute the exclusive object of) comparative studies.
The first level of selection bias, therefore, has to do with the countries typically analyzed: as explained above, the literature virtually always bases its conclusions on a few countries where party bans took place and are well documented: The Federal Republic of Germany, Israel, Turkey, are present in virtually all such studies. Occasionally India (e.g. Issacharoff 2006), Canada (e.g. Sheldon 1967), Japan (e.g. Fox and Nolte 1995), at times the treatment (short of ban) of the Communist party of the USA under the First Amendment on freedom of speech are included in the analysis (Stone 1993; Rosenblum 2007). In general, the strategy of selecting specific countries for comparison, in both legal and empirical studies of party ban remains under-explained and is apparently unsystematic. Periodization, that is, taking into account possible temporal variations in the phenomenon of party bans, is never spelled out or used as a classificatory criterion to distinguish between different types of party bans (e.g. Lieberman 2001).
The second level of selection bias present in the literature has to do with the concentration on cases in which the ban of a party actually took place, while failing to conceptualize and analyze ‘negative cases’ of party ban (Capoccia and Kelemen 2005; Mahoney and Goertz 2004). In other words, the literature concentrates on cases in which, on the basis of some existing constitutional and legal rules, one or more parties have been banned, while it generally neglects cases in which, in the presence of the same or similar rules, and of parties that present the same or similar characteristics to the banned ones, no bans have actually occurred. This strategy need not be inappropriate for legal studies which aim to assess the theoretical validity of arguments used to ban parties in a certain time and place, but it is not suited for empirical comparative analysis—or even for the comparative assessment of theoretical arguments (King et al. 1994).
Quite apart from resulting in biased findings (Collier and Mahoney 1996; Geddes 2001; Brady and Collier 2004), probably the most important consequence of the forms of selection bias mentioned above is the failure of the literature to investigate an important connection: that between the legal and normative paradigms that make a party ban possible, and the empirical conditions (relating to internal or international politics, partisan reasons of decision-makers, etc.) that, by triggering the activation of repressive legal rules, make party bans happen.

Theory

The paper analyzes party bans in Western European democracies since 1920. While focusing on Western Europe has the disadvantage of excluding ‘information-rich’ cases such as Turkey and Israel, it presents several advantages: first, the chosen range of cases present enough similarities to allow keeping some factors such as, for example, the solution of the religious cleavage (Lipset and Rokkan 1966) constant—while these factors are exactly at the basis of most cases of party ban in different areas of the world (not least exactly the omnipresent Turkey and Israel); second, this design throws light on several important cases of Western European countries which have been largely neglected in the international (and at times even in the national) comparative politics literature. Knowing more on how party bans work in the affluent, stable and exemplary Western European democracies also helps put in the right perspective this phenomenon in democratic states that have a shorter tradition or that face more emphatically ‘existential’ problems. Third, precise spatial and temporal limitations to the scope of the analysis make possible to adopt a clear definition of the problem studied, avoiding ‘conceptual stretching’ (Sartori 1970; 1984; 1991; Collier and Mahon 1993). Finally, analyzing this problem in the same geographical area over a long period of time (1920 to today) allows detecting trends and temporal patterns in the phenomenon itself, which also help put the situation of younger democracies in other areas of the world in the right perspective.
This way, the paper adopts a strategy for research design which follows the standards of ‘middle-range’ generalization, analyzing the phenomenon of party ban in a specific spatial (Western Europe) and temporal (1920 to today) range of variation. Within this range, which offers the basis for enlarging the analysis to broader generalizations as appropriate, the paper analyzes both ‘positive’ and ‘negative’ cases of party ban, including in the comparison all those cases of parties that in presence of analogous circumstances that led to banning in other countries, were however not banned.
As mentioned above, the comparative analysis of party bans even in a bounded universe such as Western European democracies between 1920 and today reveals a double kind of variation. On the one hand, in some cases the ban affected rather substantial political parties, while in other cases only very small ones; on the other hand, not all those extremist parties that could have been banned given the letter of the law in a certain country, and the political feasibility of the ban in a certain phase, were actually banned.
This ‘double variation’, among positive cases, and between positive and negative cases, defies many prima facie plausible explanations, both at the institutional and at the agential level. For example, it is plausible that, in some circumstances, a majoritarian electoral system, or a system with a substantive threshold of exclusion, would reduce the incentive for a government to ban an extremist party. Ceteris paribus, in fact, an extremist party would be more ‘harmful’ if its votes, as few as they may be, are immediately translated into seats, than if they are excluded from representation by the electoral system’s threshold. In all countries where party bans occurred, the electoral system is a proportional one. Thus, majority electoral system may indeed play the role described above. In the UK, for example, the Sinn Fein was banned because of its connection with the terrorist groups IRA, rather than for its electoral strength, which certainly was not enough to make the party a player in the national political game. In France, the single-member district system with double-ballot has played a very important role in excluding the Front National –a party that could be object of ban for its racist tendencies, which are prohibited by the law since the 1970s (see below)—from national representation, hence reducing the incentives to ban it (e.g. Esplugas 1998).
However, while all countries where parties were banned did have some form of PR, the electoral system itself does not seem to provide a sufficient explanation for the resort to party ban. First of all, the Federal Republic of Germany, where four parties were banned (or at least a ban was requested by the government), has constantly had a 5% threshold of exclusion in the national electoral system. To be sure, when the bans of the SRP and the KPD (see below) were requested, in 1951, the threshold was applied at the regional level (Capoccia 2002c), but an electoral reform was about to be passed on the basis of which the threshold of exclusion would be applied nationally. This would have made it very difficult, and maybe impossible, for either party to obtain representation in the Bundestag. (After a few years of existence of the federal republic, all regions too adopted the same threshold in the electoral systems for the regional parliaments.) Moreover, the FAP was banned in 1995 while it had virtually no possibility to reach any representation either at the local or national level (see below), and the same can be said for the NPD when, in 2000, the government appealed to the Constitutional Court for its ban. Even in the Netherlands, where the electoral system is pure PR, parties such as the CD ’86 were object of legal bans while they were in decline and had not chance to get representation at the national or local level. 
A further factor that could throw some light on the variation in the resort to party ban and its internal variation is polarization, defined as the ideological distance between relevant political parties in a system (Sartori 1976). In a highly polarized system, the government may be more reluctant to resort to a legal ban, given that the system itself is normally contested by several extremist parties. Banning one would probably encounter the opposition of the other extremist parties, even though they are at the other end of the political spectrum. This might shed some light on some specific cases, for example in the case of the non-ban of the Italian neo-Fascist MSI, active between 1946 and 1994, and clearly identifiable as a neo-Fascist party (e.g. Ignazi 1992 and 1994) –and clearly as such prohibited by the law. While there was talk of banning the MSI in the early years of the republic, this solution was mainly opposed by the Italian Communist Party, officially on reasons of principle, de facto, probably, because the party feared that they could be next (Kirchheimer 1961; Piretti 2003). While the polarization logic can provide some explanatory power for some of the cases, it can hardly work as a general explanation: parties were banned in countries with low polarization, such as the Netherlands; low-medium, such as post-war Germany, and high, such as inter-war Czechoslovakia and Finland. A similar spread is present in cases of non-ban: while France (where the FN was not banned) and Italy (same for the MSI) can be considered as high-polarization cases, at least at the electoral level, parties with characteristics that rendered them possible objects of bans were not banned in The Netherlands (e.g. the small NNP, successor party of the banned CD ’86) or in other low-polarization party systems.
Similarly, the patterns of variations are not straightforwardly explainable with more ‘micro-theories’, of decision-making. For example, while it may certainly be possible to reconstruct the strategic interactions of the main political and institutional actors at least in some of the cases of party bans considered here (see, e.g. Grofman 1997; Capoccia 1999), it would be difficult to get to a satisfactory explanation of party ban in comparative perspective on those bases. The determinants of decision-making, even if stylized along one dimension, for example the level of prevention, show a variation that makes them irreducibly local: some parties seem to be banned very preventively, when they are very small and hardly pose a challenge to the system or even the short-term interests of the ruling coalition. Other parties, in other countries and periods, seem to be banned as a last resort to save the independence of the nation or the persistence of democracy from rather predictable (if not immediate) danger.

My contention in this paper is that the nature of the legal paradigm that is used to ban a party matters in explaining variation across different kinds of bans. The original logic of party bans is preventive: the government resort to the ban of an extremist party in order to avoid the ‘harm’ that that party can do to the regime, if left free to grow and proselytize. This is what justifies the restriction of basic rights as well as the intrusion in the free dynamic of party pluralism on the part of the government. This kind of reasoning is present in the framework of ‘militant democracy’, which I will analyze below in the paper, as well as in the ‘clear and present danger’ doctrine elaborated and adopted, with constant adjustments over time, by the Supreme Court of the United States.
In a democracy, in Western Europe as much as elsewhere, banning a party without any legal basis is inconceivable. However tenuous and general, a legal basis for such a delicate decision always exists, as the judicial review of the decision in question does too. Indeed, in most cases a party can only be banned by the courts, while the government can only request such a move. My contention is that the kind of laws that are used to ban a party makes a difference in making the option of a ban –which is normally costly and delicate in terms of popularity, feasibility, effectiveness etc.—more available to the government, and less contestable to decide upon for the courts.
While the laws of different countries may in principle establish a very large number of reasons for which a party can be banned, it is possible to distinguish two general ‘legal paradigms’ (Niesen 2002), which I will call here ‘neutral’ and ‘targeted’. A ‘neutral’ paradigm identifies some constitutional objects and values that the law protects from dissent: a ‘constitutional core’ (Schmitt 1932) that is subtracted to the free interplay of political forces and on which dissent is not allowed. This can take different forms and be expressed by different wordings. In the case of party ban rules, a ban could be justified if a party is against ‘the Republic’ (e.g. in the constitution of the French V Republic); ‘the sovereignty and the constitutional order’ of the state (like in the Czechoslovak law on political parties of 1933); ‘criminal law’ (like in the first Spanish Organic Law on Political Parties of 1978), etc. In this case there is no direct description of extremists: the characteristics of an extremist party have to be derived from an indirect reasoning that involves several steps. In its decree or appeal to the judiciary to obtain the ban, the government would have to, first, establish a definition of the protected ‘object’ or ‘objects’ (for example, the ‘constitutional order’, or similar) that the party is violating with its actions or behavior; then, the government would have to show that the party is actually violating it, through an analysis of the party’s ideology or actions. The courts would have to follow essentially the same reasoning. This is likely to be difficult, since the ‘object’ itself is contested: there are several interpretation of ‘the constitutional order’ and similar values: the extremists would have their own to oppose to the government’s, and the courts would develop their own, often independently from the inclinations of the government in this respect. This discrepancy between the government’s request, other concurring conceptions by other political forces (for example, the mainstream opposition, which might have its own contingent reasons, normative or pragmatic, to oppose the ban), by the extremists, and by the court, is all the more likely, the smaller the threat is that the party itself poses. To explain, the government, the mainstream opposition, and the courts are more likely to align their positions when the extremist party in question, given its large size, or other characteristics, represents an immediate risk for the persistence of democracy in a country, or some other equivalent harm. The interpretations of the legal text by the different actors is instead more likely to be different when the party (again, given its size or other characteristics) does not represent a serious risk in the sense mentioned above. If the party is small, in other words, it is more likely, ceteris paribus, that the courts, the opposition, possibly the independent media etc. will oppose the government’s interpretation of the constitution or the law that is at the basis of its request for the ban. The expectation here, therefore, is that bans will only be possible as a last resort, when the danger or the perception of danger is so generalized in all the main political actors, that they will all basically agree on the necessity of the measure.
Things are different with ‘targeted’ paradigms, in particular the ‘anti-Fascist’ rules, which were passed in several Western European countries after WWII. As I will explain below, ‘targeted’ is a general category that encompasses ‘anti-Fascist’ as well as ‘anti-racist’ and in general all paradigms that define extremists not a contrario, like in the case of ‘neutral’ paradigms, but in ‘positive’, more direct, terms. The ‘anti-Fascist’ rules are a particularly strong form of ‘targeted’ paradigm which allows for a particularly strong and straightforward (in relative terms) legal reasoning.
There are several examples of ‘targeted’ legal rules of the ‘anti-Fascist’ version, in Western European democracies. In Italy, for example, both the 1948 Constitution and the statutory law prohibit ‘the re-foundation of the Fascist party’. A 1947 law, then made permanent in 1952, even specifies which characteristics render a party ‘Fascist’. A 1944 Dutch Decree, still in force today, declares illegal ‘all parties that pursue the same goals as the NSB [the Dutch Nazi collaborationist party]’. A 2003 Portuguese Organic Law on Political Parties prohibits ‘Fascist’ parties, etc.
The ‘positive’ definition of extremists allows less contested reasoning than by the government and the courts than neutral paradigms do: rather than having to reconstruct an agreed meaning of what ‘the constitutional order’ (or similar) is, and to show how the party is somehow violating it, they will ‘simply’ have to demonstrate that the party, for its ideology, political goals, means, behavior etc., is a member of a certain category (in this case, ‘Fascist’), which is recognizable in the common political discourse. Moreover, passing a law that stigmatizes in a ‘targeted’ way a certain ideology is often the result of a widespread rejection of that ideology in the public at large. For example, the Fascist ideology was certainly discredited in the countries in which anti-Fascist laws were passed in the years immediately after 1945.
In the specific case of ‘anti-Fascist’ rules, this process is further helped by the fact that the government and the courts can reason by ‘analogy with the past’. The category of ‘Fascist’, in other words, is not simply a category in its own right (ad not defined ‘in opposition to a democratic constitution—although certainly it is in such opposition), with characteristics and attributes that –however contested—are recognized in the common political discourse of a country. Moreover, these rules are passed in countries that have re-democratized after a fascist regime or a military occupation by a Fascist regime. These laws are therefore passed in opposition to that regime, and the category of ‘fascist’ as applied to a party which is a possible object of ban, has an immediate referent in the ‘old’ Fascist party that ruled the past authoritarian regime.
These circumstances make the option of ban at the same time more restricted and more available to the government. On the one hand, in fact, only the parties that are clearly identified as the ‘targets’ of the law can plausibly be the object of a ban, and not other forms of extremists, for which the government will normally not have this option available. On the other hand, however, the government can more easily resort to the ban of the ‘targeted’ parties, because, for the reasons outlined above, it can count on a likely agreement (or at least no open disagreement and less contestation) of the opposition, the media, and the courts. The expectation here is that bans of the ‘targeted’ parties will be easier even though they, given their size, and their political prospects, do not constitute an immediate danger to the establishment.

This approach resonates with other, similar approaches, such as the analysis of the ‘memory of politics’ (e.g. Lebow et al, 2006), or the ‘logic of appropriateness’ (e.g. March and Olsen 1984; 1989; 2004), but deviates from them in important respects. First of all, it is not coterminous with simply ‘having a Fascist past’. In particular, the law plays an important role, which has so far largely been underestimated in comparative institutional analysis (e.g. Stinchcombe 2005). If the logic described above can be seen in the experience of party ban in several Western European countries that had a Fascist regime during the interwar years (with Germany constituting a partially special case, which I discuss below), or a Nazi occupation during the war years, this is not the case for all of them: Denmark and Norway, for example, did not pass anti-Fascist laws after 1945, despite having been subject to Nazi occupation as much as The Netherlands, where an anti-Fascist decree constituted the basis for a couple of cases of ban in the inter-war years. On the other hand, Portugal only imposed legal limits on Fascist political parties in 2003, about 30 years after the transition to democracy. (No political party has been banned in Portugal either before or after the approval of this law.)
The existence of strong norms of ‘appropriateness’ provides the theoretical underpinnings to explain how certain forms of extremism were excluded from the political game in some countries rather than others. In other words, it is very plausible that the enactment of anti-Fascist legislation does correspond to, and at the same time it is made easier by, the perception of norms of ‘appropriateness’ by the main political and judicial actors, which are oriented against Fascism and its epigones. Per se, however, this is not enough to explain party bans. The ‘script’ may create the identity of actors, but this does not mean that it will be enacted in the form of a party ban. Like in post-war Italy, in fact, neo-Fascists can be excluded and marginalized in different ways, without resorting to the instrument of a ban. The ‘logic of appropriateness’ approach, with all the possible flaws which its critics have emphasized (e.g. Goldmann 2005; Sending 2002) as well as other norm-based approaches (e.g. Katzenstein 1996; 2002; 2003) are probably very powerful paradigms to explain how certain forms of extremism were excluded from the political game in some countries rather than others. However, these approaches can only provide limited information for a more specific outcome such as the ban (or lack thereof) of extremist political parties. To explain variation in this outcome, two more factors are needed: first, the translation of the ‘appropriateness’ in the letter of the law, which makes it more available over time for the purpose of banning parties; second, it should be kept in mind that the decision to ban a party, even in presence of a targeted paradigm that makes it easier, is going to be subjected to ‘local’, contingent, strategic considerations, on the part of the government, which is in virtually all cases the initiator of the procedure of ban.

Impact of laws

The above perusal of the (poor) performance of various institutional and individual-level variables points to the importance of the laws in making the party ban option available to the government of the day. When the law is crafted in certain term, in combination with a constitutional ‘script’ which has a clear value orientation, this availability is more pronounced. Having a clear anti-Fascist (or anti-Nazi) constitutional script, in combination with laws that are ‘targeted’ on the illegalization of political parties of a certain ideological orientation, is what makes the option of party ban most available. In the case of clear reaction of the democratic constitution or laws to a prior authoritarian experience, as in the example just made, both the government (which can request the ban to a court, or decree it, depending on the legal system) and the judiciary can more easily identify the extremists, and even reason by analogy with the past example of the party that ruled the dissolved authoritarian regime.
Availability does not mean that the governments will necessarily avail themselves of the option of banning extremist political parties: however, it lowers the costs of the option in question. Generally speaking, in fact, party bans are costly: in practical terms, they often entail closing down the party’s headquarters and territorial sections (which may cause  public disorders and even riots), and even arresting leaders, cadres, or members of the party; furthermore, bans can be exploited by the opposition in its propaganda, which can portray the government as authoritarian (especially if the banned party is politically close to the mainstream opposition itself); in addition, bans might reduce the government’s popularity in some sectors of the moderate public, which are likely to oppose the ban as illiberal on grounds of principle; finally, bans give the leaders, members and supporters of the banned party the opportunity of presenting themselves to the public as ‘martyrs’, thus increasing their following and support for their eventual next political undertakings (e.g. Boventer 1985). In fact, the historical record shows that in most cases, banning a party does not prevent a relatively rapid reconstitution of another party supporting the same or a similar platform (and often displaying a significant overlap of leading personnel) as the banned one.
When the law is precise in identifying the characteristics of the extremists, and when this is embedded in the system of values that the constitution and the political establishment all recognize, the government can go down the route of party ban more easily, and use the instrument of ban more often or without having to justify it too much in terms of proportionality of the sanction (which is the maximum possible, given that the party is excluded tout court from the political arena, (it can’t compete in election, proselytize, propagate its values etc.) with the plausibility and dangerousness of the threat.

Militant democracy

Party bans were analyzed as such, mainly from legal point of view, in the context of the paradigm of so-called ‘militant democracy’. The original formulation of ‘militant democracy’ was authored by the German émigré scholar Karl Loewenstein, in a series of article that he published in the 1930s and 1940s (Loewenstein 1935a and b; 1937a and b; 1938a and b; 194X; 194X). In his view, MD was a practical and normative response to the eternal democratic dilemma of ‘what freedom for the enemies of freedom’? Loewenstein analyzed what Western European democracies did in the second half of the 1930s and before to respond to the rise of Fascism and Nazism, arguing that they should respond to it with both political and constitutional-legal means. Fascist and Nazi parties, following the example of the successful rise to power of Hitler and Mussolini, would normally adopt the ‘double tactic’ of spreading violence in the street and participating into the electoral process as a ‘normal’ political party, with the object of gaining votes and seats and ultimately be called to be part of the government (e.g. Bracher 1972). Loewenstein saw Fascism (and Nazism) as a ‘political technique’ to conquer power, without any ideal content. It is for this reason, he added, that democracies should respond blow by blow to the tactics of the would-be Fascist dictators, by limiting the rights and freedoms of those who want to exploit democracy to get rid of democracy. Therefore, West European democratic parliaments, throughout the interwar years and in particular after 1933, passed restrictive legislation on freedom of association (including restrictions on and in some cases the possibility of banning political parties); freedom of individual expression, limiting the possibility of defaming institutional and political actors, in the propaganda of political parties and groups; restrictions to freedom of assembly and political demonstrations. In some cases, in order to contain the infiltration of extremist (from both the right and the left) of the state apparatus (in particular the military) they passed rules restricting the political rights of public officials, in order to be able to control their political loyalty to the state. Finally, some countries expanded the possibility for the government to declare the state of emergency on all or some of the national territory.
Among all these measures, party bans are considered the most powerful defensive measure of a democratic regime. This tradition, of which legal studies (e.g. Loewenstein 1938a and b; Fox and Nolte 1995; Fox and Roth 2000; Issacharoff 2006; Sajo’ 2004) and empirical single-case studies (e.g. Pedahzur 2002, Jaschke 1991; Jesse 1990) constitute the most part, stresses the instrumentality of party bans in the context of a ‘defense’ of the democratic system put under attack by the extremists organized in party form. In this kind of studies, banning parties is often included in a more general analysis of repression of political extremism (e.g. limiting the freedom of expression, construction of invasive surveillance structures, prohibitions or strict regulation of public demonstration, imposition of the state of emergency etc.) However, given that political parties have constituted historically the main structures of political representation and contact between the citizens and the government, probably in Western Europe more than elsewhere, banning parties is probably the most invasive manipulation of the democratic dialectic. Party bans go right to the heart of both political pluralism and the process of democratic representation, in which citizens choose freely their government from several competing parties (Schumpeter 1942; Duverger 1951; Downs 1957; Sartori 1976).
All Western European democracies are, to some extent, ‘militant’. Even a brief perusal of democratic constitutions and relevant laws on basic freedoms –in Western Europe as much as elsewhere‑ makes immediately evident that the ideal-type of ‘pure proceduralism’ is, in fact, an ideal. All democracies are somewhat ‘militant’, insofar as they do not allow completely free unfolding of all forms of political expression or associational activity for any political purpose whatever (e.g. Pfersmann 2006). All, in fact, have passed, at some point during the XX century, legal norms that regulate the exercise of freedoms in the five areas mentioned before (freedoms of association, expression, assembly, plus freedom of public officials and conditions for declaring a state of emergency). Roughly speaking, one can identify several waves of legislative activity in these areas. The first one dates back to the early 1920s, when the turmoil and disorders following WWI in many countries prompted the approval of several laws, generally regarding the state of emergency or a general ‘protection of the republic’ (e.g. in Germany or Czechoslovakia). The 1920s saw the resort to new regulations in several local situations, but a new wave of laws followed the rise to power of Hitler in Germany: in virtually all Western European states that had remained democratic, the problem of coping with the local Nazis and Fascists became obviously more urgent, to avoid the destiny of the Weimar Republic. After WWII, the reaction to past Fascist regimes in re-democratizing states, or to the Nazi occupation in some countries, prompted the approval of more restrictions, often targeted against extreme right ideologies. In the 1970s, reactions to terrorist movements in the main continental European countries led to restrictions of fundamental rights in some areas, while in a different area, over the 1970s and 1980s, anti-racism laws were approved. On the basis of the latter, restrictions to free expression were introduced to curb racist utterances from extremist individual and groups (including parties). The last wave of restrictions can be identified post-9/11/2001. These laws are mainly directed against terrorist movements, but in many cases they restricted rights also for non-terrorists, for example allowing the disbandment of religious fundamentalist organizations (e.g. in Germany), or punishing ‘encouragement’ (advocacy) of terrorist violence (e.g. in the UK) etc.

Characteristics

These restrictions to civil and political rights introduced under the aegis of ‘militant democracy’ and its successive developments have three main characteristics: prevention, discretionary implementation, and (originally) neutrality. While the first two characteristics have remained constant during the multi-decennial history of militant democracy in Western Europe, the last one, neutrality, has substantively changed in some countries. As I will explain below, this change will prove important for the understanding of the frequency and the types of party bans.
While, as explained in the previous section, ‘militant’ restrictions have normally been introduced in reaction to some event (rise of extremism, possibly in a neighboring country, or political turmoil, violence etc.), their purpose has constantly been that of preventing the same thing, or other undesired occurrences, from happening in the future. In other word, militant democracy is a preventive device. For example, by making the prohibition of advocacy of violence tighter, as it has repeatedly happened in several countries over the past decades, the intention of the legislator is to make sure that no political expression of that kind will be allowed in the future, as opposed, for example, to increasing the sanctions for who actually commits violent acts. In other words, the ‘boundaries of legality’ are shifted against political actions that extremists can take in the future, thus making the fulfillment of their political strategies more difficult, and making it possible for the government to keep them under control. Recently, for this reason, militant democracy has been labeled ‘constitutional risk aversion’ (Sajo’ 2004).