prosecution of their breach is a matter of fine political judgment on the part of the government and the public prosecutor. When the courts get involved (as almost invariably happens) the same difficulty in balancing restriction and protection of rights is apparent, this time in form of jurisprudential reasoning.
In its original formulation, militant democracy is ‘neutral’: restrictions are phrased in general terms, and no specific ideology is mentioned: ‘…As a rule, the European legislator carefully refrains from officially discriminating between subversive activities carried out by the right or by the left’ (Loewenstein 1938). The restrictions passed between the two world wars were in fact phrased in terms of ‘protected objects’, for the most part. Laws would, for example, prohibit parties and associations that would attack or however be against ‘the constitutional order’, ‘the republic’, ‘the sovereignty of the state’ etc. disregarding whether these attack came from totalitarian or otherwise extremist parties of the right or of the left.
Seventy years on, we know that the ‘militant’ script can be declined in different ways: there is not a single model of ‘militant democracy’. In particular, the assumption of ‘neutrality’, which seemed so important to its original proponent Loewenstein to make the restrictions compatible with democracy and ‘equality before the law’ (Loewenstein 1938a) has been abandoned in some countries in favor of a clear stance against specific ideologies, in particular Fascism and Nazism.
In more general terms, if before WWII all countries adopted more or less restrictive rules, but all of the ‘neutral’ type, after WWII we can clearly distinguish between two types of militant democracies. Some countries have kept a ‘neutral’ language in their legal restrictions, protecting ‘the constitution’ or equivalent values with a series of rules that prohibit actions against such values and objects wherever they come from. A second set of countries instead has adopted ‘targeted’ restrictions, against Fascism and/or Nazism, naming the extremists in ‘positive’ terms by their ideology. As we will see, this distinction has a strong impact on both the enactment of party ban rules and the jurisprudence of courts on the issue.

Militant Democracy and Party Ban

As mentioned above, party ban occupies a special place in the roster of restrictive measures that form the essence of militant democracy, at least in its original form: as Loewenstein stated, in fact, ‘…the most effective means [for extremists] for gaining political power consists in building up an intrinsically revolutionary movement as a regular and normal political party of the largest possible dimensions’ (Loewenstein 1938a). This view of the party as the most effective meas used by extremists to take over a democratic system remained also in later literature on militant democracy: for example, Sajo’ (2004) states: ‘…contrary to the speech situation…, in the case of political parties one can easily assume that action/speech within the party has a multiplying effect: it will result in an organized way in additional action/speech, causing multiplied risk. Speech and action that by definition are likely to result in mass action significantly increase the likelihood of evil’ (Sajo’ 2004).
Sajo’s quote implies a process by which an extremist party can create more ‘harm’ of taking over the democratic system) that militant democracy aims to prevent. How does ‘prevention’, the first characteristic of militant democracy, operate in the case of party ban? What exactly is being prevented? Figure 1 gives a possible stylized version of the process of takeover of an extremist party from the emergence of minoritarian and marginal extremist circles (from Justice Holmes’ ‘poor and puny individuals’ to an organized, large political party that conquers the citadel of democratic political power).
[Figure 1 about here]
The process depicted in figure 1 is very stylized, but not too far from the historical reality of some paradigmatic cases such as the Weimar Republic: extremist circles may emerge at the margin of the political arena, often around one or a few charismatic personalities; they may become a point for attraction for portions of dissatisfied public. Often thanks to external support, a national party organization ay be formed that starts competing into elections and delegitimises the existing system through its propaganda. This is where the logic of ‘polarized pluralism’ described by Sartori in his writings about comparative party system analysis applies (Sartori 1966; 1976). An extremist party may reach a sufficient strength to become politically relevant and influence the tactics of the other parties in the system. In some systems, passing a certain threshold would guarantee the party state funding and access to state-owned media, hence consolidating its place in the party system and reinforcing its capability to introduce ‘centrifugal pushes’ in the structure of competition (Sartori 1976; Capoccia 2002). This amounts to the capability of the party to destabilize the system, acting as a de facto veto player for government policy. The last steps of the ‘ladder’ represented in figure 1 are what Juan Linz and Alfred Stepan describe in their 1978 comparative classic of the crisis and breakdown of democratic regimes (Linz and Stepan 1978). The party becomes necessary for the formation of a national government, because ‘semi-loyal’ actors so judge it, and try to include it in the ruling coalition. To this, often the breakdown of the regime (if the party is anti-democratic tout court) or its profound change (if the party is in favor of a ‘different’ kind of democracy than the existing one) ensues (Capoccia 2005).

Prevention

So, how does prevention work, in the process described above? What are the obstacles and tradeoffs that governments (and the courts) have to confront in their decision? Many considerations of partisanship, normativity etc., enter the picture, which is quite complicated. Here I submit that the main tradeoff that decision-makers face in taking the decision to ban a political party (as well as in any other restrictive decision taken in the context of militant democracy) is between the preventive nature of the ban and its proportionality. In a nutshell, whether a ban is more or less preventive (and therefore less or more proportional) depends on the risk that it represents for the survival of the regime—in other words, at which point of the process of development from a marginal to a major force depicted above the party is. This is largely (although not only) a function of its size.
Figure 2 below illustrates schematically this relationship. The horizontal axis represents the moment in which the party is banned during the process of its evolution and growth in terms of size, from a marginal to an important political force in the system. The vertical axis measures the risk as expressed by the size of the party. The stronger the party, the higher the risk, and the more ‘proportional’ the sanction of the ban will be to the level of risk for the regime represented by the party. Beyond a certain size, it becomes unfeasible for a democratic government to ban the party while remaining in a democratic context. Towards the origin of the axes, instead, bans are more preventive, as the party is still small, and represents only a small risk (at least as measured by its size) for the regime. Bans here are less proportional, since a harsh sanction is applied to an organization that as such represents a small risk, and more preventive, as the ban is meant to prevent that risk from becoming larger.
[Figure 2 here]

Discretionary implementation

As I mentioned above, militant democracy restrictions are not always implemented. Given their nature at the boundary between democracy and non-democracy, their implementation is often a mater of political discretion and normative concern. Party ban rules are no exception—on the contrary: given their intrusiveness in democratic rights and freedoms, party bans are relatively rare events. In other words, in many cases extremist parties are not banned, even though their ideological and behavioral characteristics correspond to those prohibited by the law. In order to establish which parties ‘could be banned’ and were not, however, it is important to analyze briefly the nature of party ban rules in Western European democracies.

Neutral vs. targeted nature

In a democracy, and in particular in the Western European tradition, banning a party requires a legal basis. It is hardly conceivable that a government proceeds (short of a state of national emergency or similar conditions, as I will explain below) to a party ban without any legal basis: even the most supine court system would most likely not uphold the ban.
Looking at the legislation in force in the Western European states since 1920 (during the period in which they have had a democratic government), banning a party has been possible, on different legal bases throughout the whole period under analysis in The Netherlands, Germany, Finland, Austria, UK, Ireland, Portugal (since the democratic transition of 1976), Spain (since the democratic transition of 1977 and the law on political parties approved immediately afterwards, in 1978). These rules have changed over the years in most of these countries, as I will explain below—but banning a party has been possible in all of these countries. In some other countries, the legal possibility to ban extremist parties has been introduced only at a certain point: in Italy with a law of 1947; in France with a law of 1936, and in the Czechoslovak First Republic (the Czechoslovak democracy of the interwar years) with a law passed in 1933 (Capoccia 2002b). In other countries, such as the Scandinavian countries (Sweden, Norway, and Denmark) it is only possible to ban political militias linked to parties, on the basis of norms passed in the second half of the 1930s to contrast the rise of local Nazi groups, but not the parties themselves (e.g. Kirchheimer 1961). In Belgium, finally, it is formally possible (since 1999) to ban only political associations, rather than political parties (the distinction being given by the latter’s formal participation into local and national elections).

Neutral paradigms

As explained above, virtually all democratic systems, in Europe and elsewhere, include in their constitutions some ‘protected object’, in the form of the (variously called) ‘constitutional order’, the unity of the national territory, the ‘public order’ etc. These objects are protected from extremist dissent, somehow subtracted to the normal democratic dialectic, as essential to the ‘core’ of the political system. The letter of the law and its judicial interpretation will then define the objects in question more or less precisely in different countries and different periods. The oft-quoted article 21 of the Basic Law of the Federal Republic of Germany declares illegitimate all parties that are against the ‘fundamental liberal-democratic order’. A similar, although differently worded, provision exists in the Irish Constitution of 1937. Other legal orders, such as Spain’s, only refer to the nature of ‘criminal association’ of a party to justify its proscription. In most democratic constitutions there are ‘objects’ which are subtracted to the free expression of dissent by political parties and individual, and are protected from procedurally legal change. This is at the core of the doctrine of ‘militant democracy’ mentioned earlier in the paper. The ‘protected core’ of democratic constitutions, obviously, varies in breadth: some constitutions simply protect the general form of state (the monarchy, or the republic), or vaguely formulated instances such as ‘the constitutional order’. Others are more detailed in protecting their core, including for example the democratic form of government, or the territorial organization of the state, and in general specifying more closely what the core consists of, and what kind of actions can be construed as violations of the core itself. The interpretation of such vague norms by High and Constitutional Courts, in this respect, is crucial in specifying the extent and the content of the ‘protected core’. In some other countries, for a certain period (e.g. Finland between 1919 and 1929), very general norms on treason and sedition were applied to restrict the activities of extremist political parties --in that specific case, the Communist Party—which were therefore considered ‘treasonous’ associations.

Targeted paradigms

The earlier constitutional and legal restrictions to the legitimacy of parties in Western Europe were mainly based on general principles, such as that of prohibiting attacks to ‘democracy’ or ‘the constitutional order’, and similar (e.g. Loewenstein 1938a and b). Similar formulations have remained, in the constitutions and laws of many Western European democratic states, but after the end of the Second World War and the demise of Nazi and Fascist regimes it has become more common to refer explicitly to specific ideologies which, if held and propagated by a party, would make the party illegal and lead to its ban. In many cases, due to the rejection of prior authoritarian experiences, (e.g. Italy after 1945), or to mark a watershed with the regime of Nazi occupation and collaboration of local parties during the war (e.g. The Netherlands after 1944), or for geopolitical reasons (e.g. Finland after 1944), specific norms making illegitimate Fascist, Nazi and similar parties were introduced. Table 1 below summarizes the introduction of explicit legal norms which could be used to ban Fascist political parties in the legal systems of Western European countries.
The ‘anti-Fascism’ (and similar) paradigm is present in six Western European democracies. Although only in a few cases it has been activated, that is, it has led to the actual ban of political parties for that reason, it shows a remarkable resilience over time: the 2000 request to ban the NPD put forward by the German authorities to the Federal Constitutional Court resonated with that paradigm, and Portugal has, as late as 2003, adopted anti-Fascist norms to delegitimize Fascist-like parties. To be sure, in its more recent version, the anti-Fascist paradigm does tend to overlap with the anti-racist one: it is possible to find anti-racist overtones in the NPD-Antrag and the new anti-Fascist Portuguese legislation refers to anti-racism as well.

Table 1. Illegalization of Fascist parties in Western European democracies

In Germany, Austria and the Netherlands anti-Fascist norms have been used to ban political parties. The presence of similar norms in Finland, Italy and (more recently) Portugal provides the normative bases for fascist-like parties to be banned, although these norms were not used, despite the presence of a neo-Fascist party in Italy for several decades. These legal systems are rather precise in disallowing Fascist and Nazi parties: the laws specify which ideological or behavioral characteristics a party should possess to fall into one of these categories and thus be a possible object of legal ban.
The case of Germany, marked with an asterisk in the table, is a special one: formally, the letter of the law is ‘neutral’: article 21.2 of the Basic Law states that parties that violate the ‘basic liberal democratic order’ can be banned. On these bases, both the neo-Nazi Sozialistische Reichpartei (SRP – Socialist Party of the Reich) and the Communist Party (KPD – Kommunistische Partei Deutschlands) were banned between 1952 and 1956. However, a closer analysis of the German experience shows that de facto, after that first early phase, German political actors reasoned as if they were using a ‘targeted’ (anti-Nazi) legal paradigm. Since then, in fact, only extreme right-wing parties were banned, while extreme left groups were not targeted, at least in the representation process.
Furthermore, even in the early years, the ban of the KPD was much more controversial than that of the SRP. The two bans were requested simultaneously by the government, and the Court took one year to ban the SRP, and five to ban the KPD. Some judges were uncomfortable with the government’s request: the President of the Court, after trying to persuade Chancellor Adenauer to withdraw the request for a ban (which led to an unsuccessful attempt by the government to remove him from the court), was openly critical of the request (Hanschmann 2003, 18), and emphasized publicly that the political responsibility of the trial was the government’s, not the Court’s. The Federal Government also amended the BVerfGG in order to switch the responsibility for hearings on the constitutionality of political parties from the first to the second chamber, including any hearings not concluded by 31st August 1956. The verdict arrived 13 days before the deadline, on August 17th.
By the 1960s, there was a public debate over whether the KPD should be allowed again (identified by Schuster with a certain nostalgia for the ‘good old’ KPD, when compared to radical student groups); this was inspired by a growing sense that criminalising communists was disproportionate; a recognition of the role former Nazis had played in the reconstitution of the federal republic, and also the role Communists had played in anti-Nazi resistance; also the policy of Ostpolitik, and Wandel durch Annäherung – rapprochement towards the Soviet bloc. There were some attempts to relaunch the KPD, and a meeting took place between the Justice Minister, Gustav Heinemann and his Secretary of State Horst Ehmke, with a delegation from the KPD in July 1968, the upshot of which appears to have been the foundation of the DKP in September of that year; while a formal reversal of the decision of 1956 was impossible, the toleration of a new Communist party was not. (Schuster 1968, p. 423; Hanschmann in Hanebeck 2003, p. 24) The DKP was recognised as the successor to the KPD by the USSR and the GDR.
Finally, and most importantly, in the government’s requests to ban the FAP in 1995 and the NPD in 2000 constant reference is made to the similarity of the parties in question with the inter-war NSDAP. The reasoning, as I will show with examples below, is the same one done in other cases of the enactment of ‘targeted’ paradigms: not an evaluation of general principles, which is more contestable, on which basis the party is banned, but a ‘simple’ comparison between the party and the ancestor NDSAP, which is less contested and costly. In sum, Germany presents the characteristics of both ‘neutral’ and ‘targeted’ paradigms, and moved increasingly toward the latter model shortly after its transition to democracy.

Application

Definition of party ban

Not every instance of physical disbandment of a political party by order of the public authorities of a state that presents some democratic characteristics constitute an example of ‘party ban’ for the purposes of this analysis. In order to avoid conceptual stretching, and the pitfall of Sartori’s proverbial non-existing ‘cat-dog’ (1991), it is necessary to clarify the boundaries of the analysis, by explicitly defining the phenomenon of interest. For the purpose of this analysis, a party ban is a decision of a government, in circumstances of democratic ‘normality’ and continuity, to disband the organization of a nationally relevant party, or otherwise exclude it from participating into elections, unless the party profoundly changes its nature so much that it can be considered a different party at the end of the process of change. This definition excludes cases that only apparently constitute examples of party ban, but in actual fact are parts of larger processes of democratization, regime change, or emergency rule. On the other hand, the definition allows the inclusion of cases in which a government decided to ban a party, but an independent court turns down its request.
First of all, the focus on ‘circumstances of democratic continuity’ allows the inclusion only of those episodes of party ban happening at a certain temporal distance from regime transitions. Excluded, for example, are those cases of party bans which take place during the process of breakdown of a democratic regime (such as the Italian or Austrian democratic parties disbanded respectively by Mussolini in 1926 and Dollfuss in 1934), in which party pluralism is replaced stepwise by single-party (or no-party) rule. Similarly, the definition above excludes the cases (normally happening during a transition to democracy) of ban of those political parties that constituted the bedrock of, or somehow supported, the previous authoritarian regime (to take the same examples above, this would apply respectively to the Italian Fascist and the Austrian Nazi parties, both illegalized after the Second World War). The definition also allows leaving out of the analysis those cases of party ban ordered during a state of emergency (e.g., the Sudetendeutsche Partei during the last weeks of existence of the First Czechoslovak Republic, in 1938, the IKL in 1944 in Finland on the eve of the Armistice Treaty, or the Swiss Communists and Nazis in November 1940, a state of war (e.g., the disbandment of the French Communist Party by governmental decree at the end of 1939), or of military occupation (e.g. the forced dissolution of the Danish Communist Party in 1941, during the Nazi occupation of the country, or the disallowing of several right-wing parties between 1945 and 1949, during the Allies’ occupation of West Germany) (Zeman 1997; Uola 1982; Brenner 1967; Gruner 1981; Rogers 1993).
Moreover, the definition adopted focuses on political parties, that is, on organizations that participate directly in national (or nationally relevant) elections, and exclude the banning of non-party political ‘associations’—the organized groups that are active in politics, but not directly in the electoral arena. In some cases, political associations which define themselves officially as ‘parties’ can be object of bans (e.g. the Austrian ‘List against Foreigners’, banned in the 1970s, had virtually no influence on national politics), but these cases have also been excluded from this analysis, as hardly distinguishable from the myriad of extremist political associations, often composed by a handful of members, which have been systematically sanctioned by Western European democratic governments over the past century (for example, more than 50 political associations have been dissolved only in France since 1958; in Germany, the number is much higher if one counts the dissolution of regionally-based extremist organizations, operated by the Länder governments (Canu 1996). The definition excludes the cases of ban of the parties which only compete regionally and have no national significance, such as for example, the Nationale Liste of the city-state of Hamburg in Germany, banned by the regional government in 1993. Finally, the definition excludes the ‘partial bans’ of a national party, of which only some regional branches are illegalized and outlawed, often for a short time before being readmitted in the political arena.

Party ban rules and implementation

Applying these criteria, implied in the definition, to Western European democracies since 1920, yields sixteen cases of party ban, listed in Table 2. To those, the case of the Belgian Vlaams Blok, forced to re-found itself on new bases after the disbandment of the three associations that constituted the core of its organization, can be added, bringing the total to seventeen.

Table 2: party bans and ban attempts in Western Europe, 1920-2006

The Finnish Communist Party, directly linked to Moscow’s Bolshevik regime, was repeatedly disbanded in the course of the 1920s and finally in 1930, leaving only the party’s clandestine network (e.g. Upton 1973). In October 1933 the Czechoslovak government appealed to the Supreme Administrative Tribunal to ban the Sudeten German Nazi and Nationalist parties, whose leaders fled to the neighboring and more hospitable Nazi Reich. In 1938, the Finnish government tried to ban the extreme right-wing People’s Patriotic Movement (IKL), but the Courts reversed the government’s decision (Anckel 1949; Uola 1982). In the 1950s there were again several cases of party ban: the well-studied cases of the bans of the West German Neo-Nazi SRP and Communist KPD (e.g. Frei 1997; Abendroth et al. 1968; van Schmertzing 1957), as well as the less-known one of the Dutch National European Social Movement (NESB). The latter was judged by the Dutch judiciary as a successor organization of the Nazi collaborationist party NSB, which had been prohibited after the liberation of the country from German occupation (Van Donselaar 1991; 1993). For three decades after that, then, the banning of parties was virtually unknown in Western Europe, the only examples being the repeated ban of Sinn Fein in the UK, and the unsuccessful attempt of the Dutch government to dissolve another extreme right-wing party, the NVU, stopped by the courts for technical reasons (van Donselaar 1991; 1993; Fennema 2000). Party bans, however, became more common in more recent years, with five more cases in four countries, as described in the table.
If we exclude from the analysis the three bans of ethno-regionalist parties linked to local terrorist groups (the Northern Ireland Sinn Fein; the Corsican MCA, and the Basque Batasuna), and we consider only the cases of bans effected on the basis of either ‘neutral’ paradigms, or the ‘targeted’ paradigm’ of ‘anti-Fascism’, we are left with twelve cases of party ban. Ranking them by the size of the party should give us an approximate measure of the risk for the regime that they represented, and –according to the framework outlined above—of the more or less preventive/proportional nature of their bans. This is what figure 3 below shows.
[Figure 3 here]
The figure shows that some of the parties were banned when they were of a remarkable size, while others were banned when their size did not probably justify the ban in terms of proportionality, but only of prevention of future risk that they could represent if left free to grow and act in the political arena. To be sure, the stylized model of figure 1, which traces the trajectory of an extremist party from its emergence to its success does not only apply mechanically to all cases. For example, the Finnish Communists and the two Sudeten German parties banned in Czechoslovakia during the inter-war years had had approximately that size since the inception of the respective regimes (and therefore they had technically not ‘grown’ from small circles to become important political players). However, the government of their respective countries did not ban them immediately, but waited a decade or more before taking that measure.
The expectation that ‘neutral’ paradigms are more difficult to implement in the case of party ban, while ‘targeted’ paradigms make the option of taking the harshest possible measure against an extremist part (namely the ban) less costly and therefore more available to a government is supported by the data. In fact, if we classify the cases of ban according to the legal paradigm on the basis of which they were effected, we see that there is a large difference in the average size, as shown in table 3 and 4 below.
Table 3 –party bans on the basis of a neutral’ legal paradigm

Space does not allow the detailed analysis of all cases. In all of them, however, party ban was harshly contested and used in presence of high levels of risk for the regime. In fact, in all the cases listed in table 4, with the only exception of the attempted (and ultimately rejected by the Courts) ban of the Patriotic People’s Movement, in 1938, the banned party was organically connected to an authoritarian, bordering foreign power: the USSR in the case of the Finnish Communists, Nazi Germany in the case of the two Sudeten German parties, and the GDR in the case of the post-war German communists. Hence, in those specific cases, the mere size of the party probably gives an underestimation of the ‘risk’ that the authorities wanted to avoid with the ban—which in turn makes the ban more proportional, according to the definition given above.
The more detailed analysis of the cases confirms the use of party ban as a ‘last resort’ to avoid serious harm. For example, the ban of the two Sudeten German DNP and DNSAP, was heavily contested in the political and legal debate of the time since many held that the law had been applied in an excessively harsh fashion. The two parties had renewed their activism in favor of their ‘motherland’ and against the Czechoslovak Republic after the rise to power of Adolf Hitler in Germany, in January 1933. In October 1933 the Government suspended both parties, formally basing its decision on an 1867 Habsburg-era law (still then formally in force in the Czechoslovak Republic) which stated that ‘associations that for their goals or their organization constitute a danger to the State’ could be dissolved. Evidence for the ‘subversive nature’ of the DNP and the DNSAP came to the government from the judicial rulings of July and October 1933 that the Supreme Administrative Tribunal issued against the youth organization of the DNSAP (Sander 1935). Immediately afterwards, the government passed a more detailed party ban law, which specified that the government had the power to suspend and dissolve political groups and parties ‘endangering the independence, the constitutional unity, the integrity, the democratic-republican form, the security of Czechoslovakia’. The government definitely dissolved both parties on the basis of the new law, and the Supreme Administrative Tribunal confirmed this decision in two occasions (Capoccia 2002b, 720).
The case of the West German KPD is better-known: the party was dissolved in 1956 after a five-year long deliberation by the Federal Constitutional Court. To be noticed that the government requested to the Federal Constitutional Court the ban of both the neo-Nazi SRP and the Communist KPD at the same time, in 1951 –the SRP was formally banned one year later. The formal reason was that the KPD’s political objectives were incompatible with the ‘fundamental liberal democratic order’, established by the Basic Law and specified by the Court itself in the 1952 ruling against the SRP. The KPD’s position, seeking to become a “Party of New Type”, with a monopoly on political leadership, was held to be incompatible with the principle of a multi-party democracy. The Court stated that the KPD was unconstitutional because of its adherence to the principles of Marxism-Leninism; the party strives for the dictatorship of the proletariat, which however in reality excludes the people from power, because it runs against the principles of popular sovereignty and majority rule; this is against the basic liberal democratic order; hence the KPD is unconstitutional. In other words, the KPD’s desire to overthrow the bourgeois-capitalist system was held to be incompatible with a multi-party system, opposition, a responsible government, separation of powers, with the aim of protection from arbitrary rule (BVerfGE 5, 85, 200 ff).
The party bans occurred on the basis of ‘targeted’ paradigms show instead a very different pattern. Table 4 reports their size in terms of votes and seats.
Table 4 – Party bans on the basis of a ‘targeted’ legal paradigm (anti-Fascism)

As it is evident, the average size of arties banned on the basis of a targeted anti-Fascist paradigm is much smaller than that of those banned on the basis of ‘neutral’ paradigms. The parties in question, therefore, represented a much lower level of risk than the ones mentioned above. The analysis of some of the cases reported in the table shows this.
The first instance in which these norms (in the specific case part of the context of anti-extremist regulations) were applied to ban a party was in the Federal Republic of (West) Germany in 1952, against the neo-Nazi Sozialistische Reichspartei (Socialist Party of the Reich, SRP). The party had formed immediately after the Allies released their power of licensing parties in 1950, and had obtained some successes in regional elections in Bremen and Lower Saxony in 1951. Adenauer, then Federal Chancellor, applied to the Federal Constitutional Court for the ban of the SRP in November 1951, and the Court banned the party in October 1952 (BVerfGE 2.1.1-79). In the ruling, the Court considered the SRP of the same ilk as the old NSDAP and indeed a successor organization to it – for instance in its lack of commitment to democracy, and a desire for a greater German Reich; the party also displayed some personnel continuity with the NSDAP.  It attached no importance to human rights, in particular the dignity of people.  Its method of fighting political opponents aimed to remove them from political life, rather than just fighting them as political opponents.  Its internal organization contradicted basic democratic principles, as it was constructed according to the Führerprinzip –another NSDAP characteristic (BVerfGE 2, 1, 70; e.g. Zirn 1988). The resort to similarities with the NSDAP to give substance to the accusation of undermining the ‘basic liberal democratic order’ is a constant in all cases of ban of extreme right-wing parties in the Federal Republic.
In the Netherlands, a ‘Decree for Disbanding Traitorous Organizations’ issued on 20th September 1944 by the Dutch government in exile in London during the Nazi occupation of the country, was used in 1955 to ban the National European Social Movement (Nationaal Europese Sociale Beweging, NESB). This decree has still force of law today, and while it declares the collaborationist Nazi NSB (Nationaal Socialistische Beweging, National Socialist Movement) illegal and ‘traitorous’, at the same time, in article 2, declares illegal all future organizations aiming to perpetuate the goals of the NSB ‘and other national-socialist and Fascist organizations’ (van Holsteyn 2003). The Decree states that such organizations would be disbanded. The NESB, whose program resembled that of the pre-war NSB in significant ways (Mudde and van Holsteyn 2000, 145-146), was disbanded by a ruling of the High Court exactly on these grounds. After two degrees of appeal, the High Court accepted the prosecution’s request to ban the party on the basis of the fact that ‘concrete day-to-day actions of NESB show that it intends to advance the goals of the NSB’ . As it is evident, the reasoning by analogy and the positive identification of the extremist by their ideology are both at play here, and allow for a much less contested action on the part of the government and decision by the court. To be noticed that the NESB had not participated into any elections yet. It intended to participate in the 1956 national elections, but at the moment of the ban it only had about 100 members (van Donselaar 1991).
A much more recent case is that of the German Freiheitliche Arbeiterpartei (FAP), a neo-Nazi organization. The FAP was formally registered as a political party (the distinction between parties and associations is very clear and marked in the German legal system). According to the German Basic Law, only the Constitutional Court can ban political parties, so in 1994 the government applied to the court to obtain the ban of the FAP for violation of the ‘basic liberal democratic order’ included in the Basic Law. The Court responded, in a brief verdict, that the party was so insignificant politically that no ‘party privilege’ should be applied to it—which means that the government can treat it as a ‘mere’ political association. In the German legal system, this means that the organization can be banned by simple governmental decree. Thus, the government banned the FAP by decree in February 1995. Again, the clarity of the definition of the extremists in ‘positive’ terms, and the reasoning by analogy appear very clearly from the decree, as it is clear from the following quote: ‘…The FAP has the goal…to undermine and ultimately eliminate the basic liberal democratic order. This results without any doubts from the circumstance that the FAP is essentially similar to the NSDAP…’ (BMI Decree 681-1, 22 February 1995, p.3, emphasis added). Like the NESB, the FAP was a rather insignificant organization. It was not organizationally present in all regions, and while it participated in some regional electoral contests, it never achieved representation regionally. Its best result was the 0.1% that it obtained in occasion of the European elections of 1989. In the 1987 national elections the FAP only received 405 list votes (0.001%).
Again recently, similar considerations about the similarity with the inter-war NDSAP can be found in the pages of the Government’s and Parliament’s (both chambers) request, lodged at the beginning of 2000, to the Constitutional Court to ban the extreme right-wing Nationaldemokratische Partei Deutschlands (National Democratic Party of Germany). The Federal Government, for example, in maintaining the thesis that the NPD actively attempted to undermine the so-called ‘basic free democratic order’, argued that the NPD had tactical, programmatic and symptomatic similarities with the NSDAP (cf. Request to ban the NPD of the Federal Government, p. 91), and it dwelt on the connections between the party and skinheads (ibid. p. 66). The Federal Parliament’s request in particular emphasizes the relationship between the NPD and the NSDAP, in particular in terms of the program (such as the concept of Volksgemeinschaft, the notion of a Reich, social Darwinism and racism), tactics, rhetoric and language (see also Lovens 2001).

In Austria, the extreme right-wing Nationaldemokratische Partei (NDP) was banned in 1988. The party had been founded formally in 1967, and had achieved very little success in parliamentary election when in 1980 the party leader Norbert Burger, running on a anti-immigration platform, achieved 3.2% in the popular elections for the election of the President of the Republic. In 1988 the Austrian Constitutional Court, in response to a suit filed by Burger against a decision of the regional government of Lower Austria against the party, denied the NPD the legal personality which, in the Austrian legal system, is a necessary condition to have the status of political party. This was tantamount to dissolving the party (the party was ‘declassified’ to mere association, which was then formally dissolved for its Nazi activities). The reasons that the Court gave for its decision were that on the basis of its political program, the NPD presented very strict similarities (in supporting a biological-racist concept of ‘Volk’, or in its propaganda for the annexation of Austria to Germany) with the old NSDAP, and was therefore against the Verbotsgesetz and the provisions of the Staasvertrag that proscribe Nazi parties (Bailer and Neugebauer 1994: 173).

Conclusion and Implications

The comparison of party ban under ‘neutral’ and ‘targeted’ (anti-Fascist) legal paradigms has shown that bans are more restricted to specific categories of parties but easier to justify, in terms of prevention or in other terms, and therefore easier to execute under the latter paradigm, while if the laws allowing the ban are ‘neutral’, bans seem to be enacted only as a ‘last resort’ of an endangered system. The data have shown the mechanisms underlying this difference, which have to do with an easier identification of extremists which lowers the costs of the ban and makes it more available to the government. The government, in turn, may (or may not) decide to undertake it for contingent strategic reasons. Party bans are therefore expected to be more frequent in countries in which the legal paradigm for the purpose is framed in ‘targeted’ terms, rather then in ‘neutral’ ones. Other cases seem to confirm this finding, although more research is needed. To remain within Western Europe, the evidence coming from anti-racism legislation and its enactment seems to go in the same direction as the ‘anti-Fascist’ rules. ‘Anti-racism’ laws, are certainly an example of a ‘targeted’ legal paradigm, and have been passed in all Western European countries over the past three-four decades (with the exception of Ireland; Fennema 2000). They, however, present two important differences with ‘anti-Fascist’ rules: first, in most countries these laws do not explicitly allow the ban of a party with racist tendencies: the efficacy is limited to the prosecution of individual racist expression. Second, anti-racism laws do not allow the ‘analogy with the past’ that anti-Fascist laws allow and that makes the job of governments and courts easier and less contested. Yet, these laws have been enacted against the Dutch CP ’86, a small party with no prospects of ever having a serious influence on the national political life, and indirectly against the Belgian Vlaams Blok, which has been forced, through the legal dissolution of three associations which constituted its core organization, to re-found itself with a new name and a partially new platform. The Vlaams Blok, unlike the Dutch CP ’86, was a very significant national and especially regional (in Flanders) political force, which seems to respond more to the model of party ban under ‘neutral’ paradigms. However, a closer analysis of the specific case shows that this is not the whole story: in the Belgian legal system, association could not stand trial until a 1999, when a reform in this sense was passed. Therefore, the 1981 ‘Moreau law’ against racism did not (and could not) allow the ban of associations. These laws, however, made individual racist expression an offence, and prosecution against the leaders of the VB for that reason started immediately, in that very same year (Erk 2004). The judicial history of prosecution of VB leaders and cadres for racist utterances is long and cannot be reconstructed here, but it is also worth mentioning that as soon as the law, in 1999, allowed for the prosecution of associations (not parties) as such, the three associations constituting the core of the VB organization were immediately brought to court, and finally dissolved in 2004, after several appeals. Hence, a close analysis of the impact of anti-racist laws in the Belgian case also shows the extreme ‘activability’ of this ‘targeted’ paradigm. The impact of ‘neutral’ versus ‘targeted’ paradigms can also be explored in non-Western European contexts such as Israel and Turkey, countries where ‘targeted’ paradigms linked to local history have led to the repeated use of the ban instrument against extremist parties.