THE ADDED VALUE OF ‘MILITANT DEMOCRACY’
16.1. Since basic equality and freedom are necessary constituents of a liberal democratic state, as I have argued, the question arises to what extent changes that might undermine their foundational role in a liberal democratic state, and thus the liberal democratic state in question itself, should be prevented.
This question is most fruitfully brought to the fore through an examination of the concept that has come to be known as ‘militant democracy’, or – by its German denomination – as ‘streitbare Demokratie’1. Militant democracy consists in fending off any changes to a (liberal) democratic state that are so radical that the form of government is no longer recognizable as (liberal) democracy; significantly, this includes changes proposed through the proper democratic procedure, so that (liberal) democratic states are protected against being dissolved via the means that are characteristic of them2.
16.2. The necessity of militant democracy seems evident. After all, the need for basic equality and (some) freedom in any liberal democratic state seems at odds with their possible negation, which may very well be the outcome of a democratic procedure. To such an observation I would, with regard to the first element, basic equality, respond that ‘basic equality’ may be specified in many ways, so that little is said if one seeks to defend basic equality. Still, this is a somewhat rhetorical response, and one may urge on the specification that has featured prominently in this study, namely, basic rationality, which cannot be denied once it has been acknowledged (cf. section 6.8). It must then be reminded that basic rationality is merely something rational beings should acknowledge, as prescriptive equality dictates, ‘should’ being no ‘moral’ imperative but rather an expression of an appeal to self-interest, in line with what was said in section 6.4, and there is no measure to force people to be rational, so that they need not acknowledge basic rationality, and thus not act upon that which prescriptive equality stipulates.
With regard to the second element, freedom, I have already indicated what criterion should be used to decide whether it may be curtailed: the ignore principle. Paradoxically, only in a totalitarian state can opinions that plead the cessation of a democratic form of government be suppressed. What complicates matters is the fact that such opinions might lead to precisely such a state. In the most straightforward scenario, the populace may be convinced by a (charismatic) politician to vote for a party that will dismantle the democratic form of government.
I readily grant that there is nothing in my model to principally avert this state of affairs. Just as in the case of basic equality, people must on the basis of a rational assessment act in such a way that the most desirable result for them is most likely to follow, which may in certain circumstances lead to a radical change as the one just outlined (leaving the matter whether such a change can actually follow if the matter is indeed rationally assessed). It is obvious that it is quite unsatisfactory to reach this result, being able only to express the hope that one will have enough historical awareness to make balanced decisions in this respect, especially since militant democracy has not been inquired in detail, and a judgment regarding the desirability of militant democracy must be forestalled until this will have been done, although it has already become apparent that at least some elements seem difficult to reconcile with that position. Such an inquiry will now be undertaken.
16.3. I would first approximate the matter of the tenability of militant democracy from a practical stance. If militant democracy is in place, and a political party has already gained so much support from the populace that it would rise to power if a ‘normal’ democratic state (observing the demands of ‘formal democracy’ (cf. section 1.3))3 were in place, the changes such a party seeks to realize apparently find much approval. In the most extreme scenario, a coup would ensue, so that the party could, via alternative means, reach the same result. The law is not better able to subdue a revolt than any other collection of words. In addition, banning such a party may actually have the adverse effect of making it more committed4.
Legislation may be passed to preclude outcomes a present majority considers undesirable, but – again, unless a totalitarian state is in place to begin with, thus defeating the premise and purpose of the present account – it will not be ultimately effective. The effects that legislation can produce are not to be overestimated: legislation is a mere means to realize some goal decided upon external to the process of legislation itself. It is first decided by the majority, for example, that the minimum wage must be increased, which is subsequently formalized. (In representative democracy, the process is of course more circuitous.) The opposite result – a decrease of the minimum wage – can just as easily be realized.
The law itself does not exist as a (separate) authority to express its approval or disapproval but is a mere record of the legislator’s decision. To expect the law, or, in its place, unwritten, ‘natural law’, to provide definite answers to hitherto unsettled issues is to take a downright metaphysical stance, and, besides, such a position would evidence a category mistake, identifying the means (the law) as the goal. It is clear, moreover, that the law itself cannot enforce behavior: its effectuation depends on the existence of government officials. A continual performance on their part is not in every case necessary, as the mere threat that they will act may be sufficient.
16.4. Even if the law can be enforced, it must (usually) be obeyed by a substantial number of people. If it should be generally disobeyed, it could (at least in practice) not be maintained5. (The number of people sufficient to make it a ‘substantial’ number cannot in general be delimited; this will depend on the circumstances.)
The foregoing observation is easily demonstrated by the ineffectiveness of the prohibition of alcohol in the U.S.A., which was imposed in 1920 and had to be terminated eventually (in 1933, when the Eighteenth Amendment to the Constitution was repealed by the Twenty-first). Hart points to the importance of a rule of recognition, which specifies “[…] some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts”6. The rule of recognition provides criteria for identifying primary rules of obligation7. It is identified within a system of rules, no external criterion to assess its validity being available8.
The issue of ‘is-ought’ (vide section 6.4) is revisited here. Although Hart does not himself qualify the issue in these terms, he does say: “[…] the rule of recognition exists only as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain criteria. Its existence is a matter of fact”9. This appears to provide a possibility to breach the chasm between the descriptive and prescriptive realms. It does mean that an independent norm, be it one stemming from ‘morals’ or not, is no factor of importance here.
Should one, alternatively, as Kelsen does, cling to a strict separation of ‘is’ and ‘ought’10, the crucial task will be to indicate which element, or elements, would feature at the ‘ought’ level, and thus take the normative role. Kelsen notoriously resorts to a basic norm (‘Grundnorm’)11, the main problems of which consist in its being devoid of content12 and the fact that it can only be upheld by resorting to a fiction13. The latter issue is not necessarily problematic (and I appealed to fictions myself, in chapters 6, 12 and 13), but if the basis of the legal system is concerned, one should operate with caution in this regard. Whether a stance such as Kelsen’s is downright impossible I do not know, but absent any convincing candidate to provide the necessary contents, I venture to say that the most promising way to confront this issue is to locate the descriptive and prescriptive elements at the same level of analysis.
16.5. I hasten to add to these observations that legal reforms are in many cases no trifling measures. To claim the contrary would make much of what is argued here and in many other works moot. This observation is, however, not sufficient to satisfy the reader who suspects this argumentum ad consequentiam to be guiding in warding off this result, so that I would add that there is a difference between driving on an uneven road and a paved one; while the outcome – measured by distance – may be the same, legislation makes a significant difference here, realizing the objective as carefully as possible, and thus taking care of any foreseeable obstacles while leaving those that present themselves along the way to the courts’ judgment.
16.6. I have tried to show that it would be in vain to produce legislation in order to enforce behavior if a significant part of the populace would disobey such legislation. One would combat a political problem by legal means, which is no more effective than to stop the rain from falling by shouting at it. Applied to the topic at hand, this means that restricting the actions of those that seek to undermine the democratic procedure would be in vain. If they have acquired the support of a sufficient number of people (i.e., a majority, and in some cases a qualified majority) to carry through the changes by means of the democratic procedure, it would be unrealistic to expect government officials to be able to suppress such a mob, especially if it is well-organized. As I said above, even a coup could be expected.
However, the foregoing merely indicates why clinging to a more substantive concept of democracy than that of ‘formal democracy’ will not yield much. It may be welcome not to limit the analysis to such a pragmatic stance and to approach the subject matter in a more principled way, stating what the problems with the concept of ‘militant democracy’ might be, thus judging the matter even regardless of the question of whether the implementation of militant democracy would result in a viable polity. This is my task for the remainder of the chapter.
16.7. A first reason to defend the existence of militant democracy is that a majority will make decisions that have far-reaching effects for a minority (viz., the minority that wants to continue the democratic state). This is no compelling argument, as every democratic decision that is not supported by every citizen is of this nature, so that, if this line of reasoning were followed, practically no democratic decision could be made. To be sure, what is at stake here is important, but the weight of the matter must not be an essential factor, since, as I indicated, a principled rather than a pragmatic view is the objective here.
One may argue that those who seek to end democracy act paradoxically, using the very procedure they would ultimately terminate14. Such an objection, however, confuses the means (i.e., the democratic procedure) with the end (i.e., the goal(s) a political party wants to realize) (cf. what was said in section 16.3). The antagonists of democracy want to replace it by another form of government because they apparently have some goal(s) they wish to achieve (absent such goals, they would have no stake in reforming the procedure; reforming it can only be of value in any sense if the new procedure may be used for something), and they apparently consider it impossible or at least difficult to achieve their goal(s) within the confines of democracy, for which they seek, for that reason, to substitute another form of government. Should one incorporate some end into what one considers to be characteristic of ‘democracy’, one would, contra such antagonists, implicitly claim that the democratic procedure is an amalgam of the procedure – the means – and some special (allegedly positive) content – the end – that other forms of government supposedly lack, thus acting under the guise of some apparent ‘moral high ground’. (I will return to this point below.)
16.8. This is the proper place to make the transition to a discussion of the concept of ‘democracy’. It does not follow from this concept that it should be safeguarded against its own annihilation. Rather, if the legislator impedes the destruction of democracy by means of a democratic procedure, this is prompted by external considerations, primarily the fear that some minorities will be confronted with negative effects, which may in time have negative effects on society as a whole15. Such concerns may be legitimate but have nothing to do with the concept of ‘democracy’. I agree, then, with Kelsen when he soberly observes: “Democracy judges the political will of each person to be equal, just as it regards equally every political opinion, whose expression is indeed merely the political will. That is why it affords each political conviction the same opportunity to express itself and to assert itself in the free competition for people’s dispositions”16. If this is correct, ‘democracy’ is devoid of content17, just as liberalism (cf. sections 12.7 and 12.8).
The fact that (basic) equality is a necessary constituent of a democratic state takes away nothing from the observation just made. Still, it must be clear how this equality is to be understood. ‘Basic equality’ can receive virtually any content, my contention that basic rationality is the most desirable concretization notwithstanding. This position may be contrasted with, e.g., Schmitt’s, who speaks of ‘the substance of equality’ (‘die Substanz der Gleichheit’) to characterize democracy18. While Schmitt states that this substance may be qualified in diverse ways, he seems to resort to a static state model, being unwilling to agree with a procedure as the decisive criterion19, focusing instead on the will of the people20, which may be present in a minority rather than a majority21. In his own way, Schmitt defends militant democracy, pleading a dictatorship (‘Diktatur’) if the true will of the people is not acknowledged, dictatorship being identified with (‘true’) democracy22. This leads to the conclusion that “democracy can exist without that which is called modern parliamentarianism and parliamentarianism without democracy; and dictatorship is just as little the decisive opposite to democracy as democracy is the one to dictatorship”23. Such a conception of ‘democracy’, albeit perhaps idiosyncratic24, is possible, but that does not mean that each position is equally tenable. I will return to this issue in section 16.9.
One may still claim that it is characteristic of democracy that it cannot dissolve itself. This raises the question why such a consideration should apply especially to democracy, and not also, e.g., to monarchy. Should a monarch decide to resign, leaving the political room to be filled by democracy, this is just as ‘self-destructive’ as the converse situation. If those defending militant democracy refer to the ‘self-destructive’ element, then, they must either also speak of ‘militant monarchy’ and ‘militant aristocracy’, or make it clear why democracy stands out as a special instance. The first option would mean that forms of government can never change into others, except through another sort of change than the one presently under discussion, such as revolutions, while the latter boils down to a defense of ‘substantive democracy’. As Dworkin describes it, “[…] the partnership conception does not make democracy independent of the rest of political morality; on that conception we need a theory of equal partnership to decide what is or is not a democratic decision, and we need to consult ideas about justice, equality, and liberty in order to construct such a theory. So on the partnership conception, democracy is a substantive, not a merely procedural, ideal”25. Such a substantive conception is not tenable, though. Judging whether a decision is democratic by such a standard is like judging whether a substance is whisky not by using the production process as a standard but one’s palate, confusing whisky with nice whisky, the latter being a special instance of the former.
16.9. If those upholding militant democracy take ‘democracy’ to mean more than a form of government in which the majority of the population is in power26, they may be accused of making the category mistake similar to those to which I referred in the introduction and in section 8.1, namely, to include in the concept of ‘democracy’ (apart from the given that it cannot dissolve itself) elements such as the requirement that the rights of minoriti