The label “militant democracy” was invented by German émigré Karl Loewenstein in the 1930s to designate the constitutional and legal restrictions on the rights of political extremists that were being put into place by democracies in Europe and Latin America to “fight back” against the rising threat of fascism and Nazism. To be sure, such restrictions on free expression and participation raised the age-old dilemma of how much freedom democratic states should allow the enemies of freedom without, on the one hand, running the risk of self-destruction and, on the other, subverting their very own normative foundations. In this book, Alexander Kirshner tackles this same dilemma and proposes an original normative framework that serves to evaluate the various legal strategies adopted by democracies to respond to domestic, nonviolent, antidemocratic challenges.
Kirshner’s framework is based on three fundamental principles. The first, the participatory principle, states that all individuals, including antidemocrats, have an equal right to political participation in democratic decision making. This principle sets Kirshner’s views apart from those of Loewenstein, who did not consider the participation rights of fascists as deserving of protection. From the participation principle follows the second principle, that of limited intervention, according to which the participation rights of antidemocrats can only be legitimately restricted for the purpose of preventing them from violating the rights of others. This excludes other justifications, such as that of achieving an “ideal” democracy rid of extremist dissent, or that of silencing critiques of values such as secularism or nationalism that may be considered central to state identity in some cases. Third, the principle of democratic responsibility alerts democratic incumbents to the costs of “militant” responses, which implies that such actions should be undertaken only as a last resort and that institutional safeguards should protect against potential abuse.
The framework makes three important and innovative contributions. First, it “opens up” the old formulation of the democratic dilemma. Framing the problem of militant democracy as “What freedom for the enemies of freedom?” was adequate in Loewenstein’s interwar years, when totalitarian parties and movements explicitly advocated a different type of political legitimacy from the liberal-democratic one. At the onset of mass democracy in Europe, the problem was mainly to justify the abandonment of the Kelsenian position of constitutional “neutrality,” which treated all political positions equally, and to introduce targeted restrictions to prevent totalitarian movements from gaining political influence. Nowadays, new challenges to mass democracy have appeared, and their antidemocratic nature is more contested. The old totalitarian movements have mostly—though not always—turned into fringe groups, and new existential challenges to democracy have emerged from (among others) “identitarian” movements, such as ethnic nationalism and religious fundamentalism, which can claim fundamental rights to minority protection and religious freedom. Kirshner’s framework furnishes an articulate response to the difficult issue of designing “militant” policies and institutions that can accommodate the multifaceted nature of the new challenges to democracy.
Second, unlike many treatments of the problem, Kirshner’s proposed framework is not implicitly derived from the historical experience of any one specific country, such as, for example, the United States or Germany. To illustrate how his approach could serve as a guide for a variety of polities and antidemocratic challenges, Kirshner uses historical vignettes ranging from a fringe party adopting racist internal statutes to a much larger party posing a direct and immediate existential challenge to a democratic regime. Drawing on such comparative knowledge, the book is more likely than other contributions to succeed in stimulating wide-ranging discussion on a central theme of the contemporary debate on democracy.
Kirshner’s third key contribution, and probably the most original trait of his approach, is the explicit connection between the ethics of defending democracy and the ethics of establishing democracy. This normative and philosophical connection can be found already in Locke (pp. 7–8), but Kirshner draws most heavily on the work of the Polish dissident Adam Michnik. Michnik argues that a democratic revolution is a “self-limiting” revolution, which avoids utopian goals and aims at establishing a regime that reflects society’s pluralism and allows citizens—including, crucially, those who supported the authoritarian regime—to settle their disagreements peacefully.
The explicit connection between the ethics of the “democratic defender” and the “democratic rebel” serves as the logical infrastructure for most of Kirshner’s framework, but it is probably most important for his solution to one of the hardest problems of militant democracy: whether to take preventive action against an imminent threat to the existence of a democratic regime. This is the case of a party on the brink of obtaining governmental power that would have the ability and the intent, once in power, not only to harm the rights of citizens but also, even more seriously, to prevent the future possibility of citizens to democratically redress such harm. The debate on the democratic legitimacy of preventive intervention against enemies of democracy is old and far from being settled, despite renewed attention in the wake of 9/11. Even well-known formulae for legitimate infringements of free speech, such as Learned Hand’s “the gravity of the evil discounted by its improbability,” offer limited guidance, since gravity and improbability can take radically different meanings in different historical and political contexts.
Under the three principles at the root of Kirshner’s normative framework, no preventive ban against an antidemocratic party can be justified, because even though the harm to rights of democratic participation can be considered imminent, such harm has not yet taken place. However, by ethically equating actions taken to defend democracy with actions taken to establish democracy, Kirshner argues in favor of preventive action, even though it would not be democratically legitimate—exactly as action taken to establish a democratic regime can be justified by the desirability of democracy, even though, by definition, the institutions and procedures of democratic representation that could legitimize such revolutionary steps do not yet exist. The fundamentally illegitimate nature of preventive defensive action alerts democratic incumbents to its substantial moral costs. This constrains preventive responses: Not only should democrats be alert to the possibility of self-deception and mistakes, but they should also publicly explain their actions and submit, ex post, to an independent review of their actions, which can lead to sanctions in the case of negligence or abuse. Furthermore, after intervening, democrats are under a duty to bring the excluded back into the democratic process, again submitting to external, impartial scrutiny. The prospect of such a process should, in Kirshner’s view, deter democratic incumbents from abusing their power and masking partisan intervention under the guise of defensive intervention.
In sum, this is an important work. Although the style of the book is at times long-winded, it covers all of the key issues in the debate on militant democracy and does so in a way that is original and topical at the same time. To be sure, the book is unlikely to put an end to the debate, not least because the practice of many democratic states in responding to antidemocratic challenges is likely to fall short of the exacting standards of Kirshner’s framework. In fact, the historical legacy of democratic origins often operates as a justification for antiextremist restrictions (including preventive ones) in the public discourse of new democracies, with significant variation across contexts and not necessarily as a thin disguise for partisan abuse. A Theory of Militant Democracy proposes a tightly argued, up-to-date, and universal set of ethical democratic standards for assessing the practice of democratic states that is likely to stir discussion for some time to come.
