Antidemocratic factions have long striven to limit participation in, or alter the character of, democratic regimes. Alexander Kirshner’s new book provides “a theory of the steps democracies should take to protect themselves” that aims to limit normative costs (p. 15). The book’s key contribution is to shift our focus from post hoc legal responses toward an engagement with antidemocrats as rights bearers and future democratic partners. Militancy should confront only those antidemocratic actions that threaten others’ participation rights, and then in the least intrusive way. Intervention in antidemocratic forms of participation should take place “as often as necessary, as infrequently as possible” (p. 7), tracked by a Weberian sense of responsibility and an eye to future reconciliation. Overall, Kirshner’s people-centered approach, his assumptions, and, ultimately, his action-guiding principles are interesting and form an important contribution to a practical debate. Yet the logic that joins assumptions to principles leaves the paradox with which he begins unresolved.
Recent attention to militant democracy suggests that it constitutes a new wave of nonideal political theory (Mackelm Reference Mackelm2012; Muller Reference Muller2012; Rosenblum Reference Rosenblum2008; Rummens and Abts Reference Rummens and Abts2010; Thiel Reference Thiel2009). Addressing aspects of the dirty-hands problem, contemporary theorists of the nonideal harness analytic normative thinking in the practical service of real-world problems. Such work breaks down artificial barriers between politics and ethics, showing how a sort of “ethics of experience” can guide those confronting tough cases. As Bernard Williams taught, “almost all worthwhile human life lies between the extremes that morality puts before us” (1985, 216). A Theory of Militant Democracy works in this vein, developing a normative frame through active engagement with empirical cases.
This normative frame consists of three principles. The “Participatory Principle” claims that antidemocrats, like everyone, have an intrinsic interest in participation (pp. 33 ff.). Kirshner describes the right grounded in this interest as “indefeasible” (p. 6). The “Limited Intervention Principle” means that militant democrats should only seek to “secure conditions that allow all citizens to participate safely” (p. 47). It follows that to justify exclusionary practices, antidemocrats must have aimed at “invidiously violating others’ rights” (pp. 6–7). Finally, the “Principle of Democratic Responsibility” means acknowledging the harm of militancy, providing redress, and treating “anti-democrats as future partners in democracy” (pp. 56–59). Temper your aims and means, militants. Be respectful and responsible.
Examining a range of cases—from the British National Party (BNP) to Turkey’s Refah to southern Democrats during Reconstruction—Kirshner offers a range of intervention options. Where possible, we can rely on background rules to discourage antidemocratic tendencies, as when the BNP was required to address its exclusionary membership rules (p. 62). But once antidemocrats can make antidemocratic legislation, courts cannot help us (p. 120). This means that preventive action is justifiable whenever antidemocrats have the “capacity and intent to block democratic challenges in the present and shut down normal avenues of democratic opposition in the future,” in addition to a stated intention of doing so (pp. 130, 132).
The right to participate, Kirshner argues, is grounded in active and passive interests: “[P]articipants are unlikely to defend the concerns of nonparticipants adequately. … [E]very individual is likely to be the most faithful interpreter of what she requires to lead a valuable life” (p. 37). But even those who choose not to participate have a passive interest in being allowed to do so because it is a marker of dignity, a form of equal recognition, without which individuals would suffer the harms associated with relative inferiority (p. 38). Despite these clearly instrumental uses for the right to participate, Kirshner claims that “self-rule is not simply a means to an end, but an end in itself” (p. 35). This inconsistency has salient consequences.
If the interests that the right serves are, basically, the autonomous pursuit of aims coupled with the dignity of political recognition, then participation must be meaningful. It will not do to have a facade, where decisions that contradict vested interests are overturned from above. Yet Kirshner proposes precisely this: Antidemocratic parties, like the British National Party, may be gently disadvantaged by background rules and then left to it, so long as they do not gain power. But should they gather substantial support, “societies must act before antidemocrats have conquered the commanding heights of a society’s political institutions” (p. 165). So, far from indefeasible, the antidemocrat’s right to participate is contingent on not playing to win. This works against the interests Kirshner claims the right is designed to protect. An advocate of a position that may be voiced but not won does not garner equal respect. And if “every individual is … the most faithful interpreter of what she requires to lead a valuable life,” then ruling those interests out of court seems to defeat the active interest in participation, too (p. 37). It may be that we democrats know best and deserve the bias that Kirshner blesses (pp. 69 ff., 81), but participation rights should then rest on other grounds, and should be recognized as precisely defeasible. As with all rights that conflict, we can struggle to adjudicate with reference to a balance of underlying values.
Democratic regimes limit rights every day: Rights conflict and are routinely limited for efficiency (as with eminent-domain powers), community safety (quarantine or isolation orders), or even for retribution (retributive incarceration, revocation of prisoners’ suffrage). Rights well limited depend on attention given to balancing the interests they serve, and only those rights we deem indefeasible or nonderogable remain above the fray. Kirshner himself makes reference to underlying values of nondomination, dignity, and well-being, yet continues to insist that participation rights are intrinsically valuable and indefeasible (p. 35).
Ultimately, a right to participate and the institutions that facilitate its exercise are instrumental, serving, for instance, a fundamental interest in minimizing domination. Kirshner’s own assumptions, principles, and advice fit more easily with this logical foundation, while evading the paradoxes in which his argument is mired.
Democratic theorists are, naturally, deeply interested in politics and participation. But the vast majority of others are contented to vote periodically. They want protection from state- and citizen-sponsored economic or physical domination, and participation facilitates this. Our interest in participation is primarily, but not exclusively, an interest in maintaining the capacity to secure ourselves. This is an instrumental, not an intrinsic, interest. Whose (defeasible) right is limited will then ultimately depend on the balance of those interests. The conflict becomes a paradox if the right to participation is understood as indefeasible. Despite this substantive disagreement, by shifting our attention to right holders, and grounding the debate in real cases, Kirshner has made a fine and commendable contribution to democratic theory, which may set the terms of debate going forward.
