Restricting Democracy for the Sake of Democracy
Explaining Extreme-Right Party Ban Initiations in the Netherlands
and Germany
byNIENKE BOS
Student number: 4015061 Supervisor: Dr. A.S. ZasloveA Thesis Submitted in Partial Fulfilment of the Requirements for the Degree of
Master of Science in Political Science
at
Radboud University Nijmegen 14 July 2014
Table of Contents
Abbreviations...iii Abstract...v Preface...vi List of figures...vii Introduction...1 Theoretical Framework...6 Methods...34 Historical Background...45 Analysis...61 Conclusion...111 References...115Appendix A: Table A...127
Appendix B: Content-analysis newspaper articles: The German case...130
Appendix C: Content-analysis newspaper articles: The Dutch case...132
Abbreviations
BVerfGE Bundesverfassungsgericht Constitutional Court Germany
CD Centrumdemocraten Centre Democrats
CDA ChristenDemocratisch Appèl Christian Democratic
Appeal
CDU Christlich Demokratische Union Deutschlands Christian Democratic Union Germany
CP’86 Centrumpartij 86 Centre Party 86
CSU Christlich-Soziale Union Christian Social Union
D66 Democraten 66 Democrats 66
EC European Commission
FAP Freiheitliche Deutsche ArbeiterPartei Free German Workers‘Party
GL GroenLinks Green Left
HADEP Halkin Demokrasi Partisi People’s Democratic Party
ICCPR International Covenant on Civil & Political Rights
KPD Kommunistische Partei Deutschland Communist Party Germany
LPF Lijst Pim Fortuyn List Pim Fortuyn
NL Nationale Liste National List
NESB Nationaal Europese Sociale Beweging National European Social Movement
NNP Nieuwe Nationale Partij New National Party
NPD Nationaldemokratische Partei Deutschlands National Democratic Party Germany
NSDAP Nazionalsozialistische Deutsche Arbeiterpartei National Socialist German Workers‘Party
NSB Nationaal-Socialistische Beweging National Socialist Movement
NSU Nationalsozialistischer Untergrund National Socialist Underground
NVU Nederlandse VolksUnie Dutch Peoples-Union
PDS Partei des Demokratischen Sozialismus Party of Democratic Socialism
PvdA Partij voor de Arbeid Labour Party
PKK Partiya Karkerên Kurdistan Kurdistan Workers Party
PVV Partij voor de Vrijheid Party for Freedom
SPD Sozialdemokratische Partei Deutschlands Social Democratic Party Germany
SRP Socialistische Reichspartei Socialist Reich Party
VNN Volksbeweging Nationalisten Nederland People’s Movement Nationalists the Netherlands
VVD Volkspartij voor de Vrijheid en Democratie People’s Party for Freedom and Democracy
Abstract
This thesis aims to explain why political parties are banned in certain cases, while in other comparable cases such initiations do not take place. Previous theories have dealt with the normative and judicial components of this topic, but fail to explain the (non-)occurrence of party ban initiations. A theory of public debates is used to gain more insight in the rational of extreme-right party ban initiations. Four process-tracings of (non-)party ban initiations in Germany and the Netherlands combine newspaper content-analyses with expert interviews and historical and judicial backgrounds. The thesis concludes that public debates play a more prominent role in the Dutch case than in the German case. This could be caused by
institutional arrangements, but also by the nature of the public debates.
Keywords: party ban initiations, proscription, extreme-right parties, public debates, CP’86, NPD, PVV
Deze scriptie wil verklaren waarom er in het ene geval wel een partijverbod wordt geïnitieerd tegen een politieke partij, terwijl dit in vergelijkbare gevallen niet zo is. Vorige theorieën hebben normatieve en juridische elementen van dit onderwerp belicht, maar slagen er niet in om de aanwezigheid van partijverboden te verklaren. Een theorie over maatschappelijk debat wordt gebruikt om meer inzicht te krijgen in de beweegredenen van de initiëring van
extreemrechtse partijverboden. Vier process-tracings van (niet)partijverbodinitiëringen worden uitgevoerd voor Duitsland en Nederland, waarbij er een combinatie wordt gemaakt tussen inhoudsanalyse van krantenartikelen, expert interviews en de (juridische) geschiedenis. Het ziet er naar uit dat publieke debatten een prominentere rol spelen in de Nederlandse casus. Dit kan veroorzaakt worden door de manier waarop de instituties zijn ingericht, maar het kan ook komen door de aard van de publieke debatten.
Preface
The thesis you are reading at this very moment is the last academic piece of writing from my hand as a student at Radboud University Nijmegen. The topic, party ban initiations, is at the nexus of the two disciplines of legal studies and political science, which is not the most comfortable place for a subject to be. It is very under-researched, which at first made it hard to fully grasp the literature and the empirical reality. By visiting experts in different cities (Amsterdam, Dresden, The Hague) and by immersing myself in the literature, I was able to grasp a part of that reality. This process allowed me to bring into practice the skills I learned during the previous five years, both at the Political Science Department and at the Faculty of Philosophy. I did not only learn a lot about my topic, I also learned much about myself.
Although doing research is oftentimes a lonely process, I received a lot of support. I would like to thank my family, friends and colleagues, Uwe Backes, Frits Bolkestein, Martin Bosma, Frits Bräutigam, Gigi Deppe, Marleen van der Haar, Kristof Jacobs, Harm Kaal, Christobal Kaltwasser, Frank Kuyper, Paul Lucardie, Wouter Meijer, Joop van Spanje, Niels Spierings, Koen Vossen, Willem Wagenaar, the second reader, fellow students in particular Helen, Ilona, Jeroen, Daan and Hans. Bas, thank you for making fun of me when I was totally stressed out, and giving me space when needed.
Furthermore I would like to thank my supervisor. Andrej, this thesis was absolutely impossible without your inexhaustible energy and way of supporting me. Sometimes the combination between your enthusiasm and my ambitions was dangerous, but it led to this final product. It was an honour to be your thesis student. Not only were you a source of inspiration, you also supported me when applying for the Honours Grant and also for the PhD application at Leiden University. I was selected for both and you certainly played an
important role.
And thank you, reader, for reading this thesis which is my latest but certainly not my last academic piece of work.
Ede
4 July 2014
List of figures
Table A Table of party bans
Figure 1 Conceptual theoretical framework
Figure 2 Factors on influence on German banning initiations Figure 3 Factors on influence on Dutch banning initiations
Introduction
“Banning political parties means operating on the fringes of the democratic system. It is the first tool which dictatorship seizes, while it should be the last for democracy” (Eskes, 1988: 588).
At the night of the 2014 local election results in the Netherlands, Geert Wilders (founder and leader of the anti-immigrant party PVV) and some of his followers shouted “less, less, less” when he asked his audience whether they wanted more or less Moroccan people in The Hague (NOS, 19 March 2014). A critical and massive societal reaction arose and celebrities and newspapers that previously seemed to support Wilders turned their back against him. Wilders, already prosecuted once for hate-speech, had clearly crossed a line with his statements. A societal discussion arose concerning the limits of democracy and the freedom of speech of politicians.
Freedom of speech and the balance between freedom of association and non-discrimination rights is central to party bans. The legal proscription of political parties is a strong measure. Although such measures are often associated with authoritarian or semi-democratic regimes, they also occur in fully democratic regimes such as Spain (Batasuna in 2003, Askatasuna in 2009) and the Netherlands (CP’86 in 1998) (Bourne, 2007:1068). The fact that countries that have longstanding democratic traditions outlaw parties that threaten the public order seems to go against our intuition.
This uneasiness concerning party proscription might be caused by the intrinsic tension between liberalism and democracy. Whereas the original idea of democracy is that all voices should be heard, the original idea of liberalism is that the government should provide its citizens liberty and equality. Freedom of association and freedom of expression are liberal democracy’s core values (Bleich, 2011: 85). However, these freedoms are not absolute. When the freedom of association and expression of a party limits the freedom of (one group of) citizens, countries become cautious to tolerate everything for the sake of liberalism.
Freedom of expression and association and the combat of discrimination are weighed on a scale. However, this weighing happens in different ways, both between countries as within countries. Whereas some statements might be seen as very offensive just after the Second World War, they may be currently part of the day to day discourse. And whereas the United States “aggressively protect” racist groups such as the Ku Klux Klan, such groups will not easily be allowed in (for example) West-European states (Ibid.: 86).
The measure of party bans is part of the larger toolbox states have at their disposal to regulate and restrict parties. Governments have an increasingly prominent role in the management of the activity of parties (Van Biezen, 2010: 3). Not only do they initiate party bans, they also cut off party financing and/or restrict parties in other ways.
There is a difference between states, but also within states, concerning tolerance towards political parties. Much scholarly attention has been devoted to this subject. This work, however, has mainly been of a descriptive or prescriptive nature. There have been legal scholars that outline the legal framework concerning party proscriptions. However, as becomes apparent below, these frameworks do not suffice to explain why one party is proscribed, while another party is not.
Another strand in the literature looks at the subject from a normative perspective. Although this view is certainly of importance, this process of prescription also has its
limitations. In addition, there are political scientists who have devoted their attention to this topic; however, few of them developed an explanatory theory that can explain the empirical variation of the proscription of political parties.
The puzzle at hand is thus what explains the empirical variation we see within and between countries. Why certain parties were previously prosecuted, while politicians are able to make more or less the same (or even more extreme) statements without the threat of prosecution in other more recent circumstances? As I will explain later on, I expect that the reasons (not) to initiate a banning case against parties, varies by type of party. The reasons for banning left parties might vary when compared to the reasons for banning extreme-right or regionalist parties. In this thesis, I will look at the reasons for party proscription initiations of extreme-right parties in two countries. The research question guiding this thesis is:
What are the conditions for extreme-right party ban initiations?
Aim and relevance of the thesis
The aim of this thesis is therefore to develop a theory that is able to explain (part of) the empirical variation. This aim is ambitious: almost no comparative studies have been conducted on this subject. Party regulation by governments did not gain a lot of scholarly attention until a few years ago (Van Biezen, 2010: 3). This makes it difficult to formulate a general theory that explains many of the aspects involved in the banning process. Existing studies concerning party bans fail to question the official rationales for party proscriptions, and when they do they often “fail to develop systematic or sufficiently detailed arguments” (Bourne, 2012: 1066). A systematic, comparative study of political processes with both a structural and a historical component is needed in order to uncover the processes of party regulation in general, and party restriction in particular.
Another contribution that can be achieved by a study to party ban initiations, is related to the fact that the subject is situated at the interface of political science and legal studies. One cannot look at the initiation of banning cases, without looking at the legal institutions and arrangements within (and between) countries. Furthermore, the laws determine to a large extent the room for manoeuvre of political parties. However, political parties do not only operate within a legal structure, they are also able to change this structure (Nieuwenhuis, 2003:199). The fact that the subject lies so fundamentally at the interface of political sciences and legal studies seems to have at least two implications. On the one hand it might explain why almost no comparative explanatory studies have been conducted on this subject. On the other hand it signifies that a lot can be achieved by studying this interface.
In addition to this scientific relevance, the subject of party proscription also has a societal relevance. By knowing what the conditions are for the initiation of banning cases against political parties, countries may become more aware of their (and others’) actions against extreme parties. This increased consciousness provides insight in what the boundaries of democracies are.
The structure of the thesis
The next chapter contains the theoretical framework of this thesis. I have divided the literature on this topic in three approaches: a normative perspective which focuses on the prescriptive arguments of party ban initiations, a legal focus which focuses on the legal institutional frameworks, and a political approach which tries to explain the empirical variation we see in reality. I will propose to use a theory that has been used previously to explain certain extreme-right sentiments in Germany and Austria to account for the empirical variation concerning party ban initiations. This theory will be central to my thesis.
In the subsequent chapter, I will explain my variables and how I measure them. My method (process-tracing) will be discussed, as will the way in which I will collect my data and the pros and cons of this case-study research.
The empirical share of this thesis consists of two parts. The first part will elaborate on the domestic legal frameworks of the two countries under investigation, the Netherlands and Germany. This part also shortly summarises the relevant history of both countries concerning party ban initiations.
The second empirical part is the analysis. The two cases are presented in a consecutively, after which a comparison is made of the most important explanations that were significant in both cases. These findings will be discussed in light of the hypotheses, and alternative explanations will be considered.
The last chapter of this thesis is the conclusion, which summarises the research and looks ahead at further explanations and future prospects. The findings of this thesis will be placed in the bigger picture, and possible ways of improvement will be suggested.
Theoretical Framework
“This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed”.
Although the sentiment that is expressed in this quote could be expressed by many people, it is ironically Joseph Goebbels from whom the quote originates (Bracher et al, 1986: 16). Perhaps it is making poor use of an example to cite Joseph Goebbels, but it clearly signifies that democracy is the very entity that can destroy democracy. This phenomenon is also referred to as ‘democide’, in which citizens purposively elect parties or people by (more or less) democratic means to kill democracy (Chou, 2013: 30).
Democide is not the only thing that challenges the future of representative democracies. Due to for example globalisation, European integration, intercultural migration, individuation, mediatisation, a decrease of social capital and a sense of insecurity, the boundaries of democracy are continuously forced to adapt (Schmitter,2011:199-204). However, regarding all these phenomena, no example is needed to prove that democide could have the most disastrous far-reaching consequences.
After the Second World War, a number of European countries created legal provisions in such a way that democracy would not be able to destroy itself from within. In most countries, the constitution makes it possible to ban a political party with anti-democratic ideals, and in some other countries there are non-constitutional laws and regulations that make this possible. However, a certain tension exists between the prohibition of political parties and the freedom of association and speech: who determines what is anti-democratic? And if a xiii
substantial part of the electorate supports such a party, could it really be anti-democratic? What are the conditions for the initiation of the proscription of political parties?
This chapter provides a review of the literature concerning the banning of political parties. First, a short overview is given on liberal democracies, political parties and the boundaries of democracy. Thereafter, the proscription of political parties will be defined, and different perspectives on proscription are discussed. A normative and a legal perspective on proscription will be explained, and the advantages and disadvantages of each perspective will be analysed. Next to these perspectives, a new perspective will be provided. This perspective will be central to this thesis. Finally, the theoretical expectations are presented.
Democracy, parties and tolerance
The starting point of this thesis is liberal democracies. Within democracies, Larry Diamond distinguishes two different kinds of democracies, which differ in their scope: “thin” electoral democracies and “thick” liberal democracies (2008: 3). In an electoral democracy, the necessary conditions for a democratic regime are present in the most minimal way. People can choose and replace their leaders in regular, free and fair elections (Ibid.). Logically, electoral democracies vary in their quality, since no human rights or freedoms are guaranteed. This often leads to the “fallacy of electoralism”, in which the elections are privileged over other dimensions of democracy, leading to an exclusion of significant portions of the population or to the fact that elected official do not have access to significant arenas of decision making (Karl, 1995). This ‘thin’ conception of democracy is to a great extent linked to the proceduralist conception of democracy, in which the procedures of free and fair elections and mutual respect are valued most important.
As opposed to this, liberal democracy extends beyond these formal conceptions of democracy. This can be distracted from at least three aspects. First, there are no reserved
domains in society: every domain of power is accountable to the electorate (Diamond, 1999: 34). Secondly, next to vertical accountability, horizontal accountability assures a constrain of executive power and so helps constitutionalism, i.e. the authority of government derives from and is limited by a body of fundamental law (Fehrenbacher, 1989: 1). And finally, there are extensive provisions for political and civic pluralism, as well as individual and group freedoms (Diamond, 1999: 35). Next to the electoral opportunities, citizens for example have substantial individual freedoms, the judiciary is independent and neutral, and there are institutional checks and balances (Diamond, 2008: 4). Furthermore, the state apparatus and the military security are in hands of civilians who are accountable to the people through elections, and there is a legal equality of all the people for the law, which is universal, stable and non-retro-active (Ibid.). Liberal democracy is often associated with more substantive views of democracies, in which it is not so much following certain democratic procedures, but democratic ideology, which is valued as important. Freedom of speech, equality and respect are important values in such democracies (Abts & Rummens, 2007: 514).
One of the key elements of representative liberal democracies is thus the legitimacy of the people. Public deliberation is important in current representative democracies (Art, 2006: 13). Public debates are central to the normative conceptions about democracy, but also to every observation about liberal democracy (Ibid.: 1). Within these public debates, elites and parties are of key importance. Due to the revolutions of size, scale and scope of democracy, market-place models are no longer viable (Schmitter, 2011: 191-192). This makes political representation through political parties inevitable, although not everybody thinks sovereignty can be represented (see Rousseau 1987: 198).
However, most political scientists see parties as essential to democracy, which is “unthinkably safe” in terms of parties (Schattschneider 1942: 1). This famous sentence of
Schnattschneider is often quoted when someone wants to stress how important parties are for democracies. However, the sentence that follows is even more important in light of this thesis: “As a matter of fact, the condition of the parties is the best possible evidence of the nature of any regime” (Ibid.). This sentence must be understood, among other things, in the light of a distinction between democracies and dictatorships. The amount of freedom parties have, and the rights of association and freedom of speech determine to a large extent the condition of democracies. This phrase relates to the inherent tension between restricting parties and the quality of democracy, since the prohibition of parties is in essence anti-democratic, although it often is often used to protect democracies from bad influences. Within democracies, parties have three main functions: to represent the electorate, to organisation/mobilisation and to sit in government (Dalton & Wattenberg 2002: 5). Naturally, parties have an important function for voters, since they simplify the choices, they educate and mobilise the voters and they create symbols of identification (Ibid: 6-7). Furthermore, parties also have an organisational function, since they recruit political leadership and seek governmental offices, they train the political elites and articulate and aggregate the interests (Ibid.). Finally, they have a major governmental function in that they create majorities, organise government, implement policy objectives, organise opposition and foster stability etcetera (Ibid: 8-10).
Furthermore, most of the European voting population (varying from just over 50% in Germany to more than 80% in Switzerland) feels represented by a political party (Wessels, 2011: 103), and voters acknowledge that parties are necessary to make politics work, even if they do not like the parties in their country (Gallagher, Laver & Mair, 2006: 307). This shows that parties are important for present-day representative liberal democracies, but also that citizens see parties as important for a good-functioning democracy.
Although the advantages and necessity of political parties for democracy are crystal clear, democracy has not always been “unthinkably safe” in terms of parties. History teaches us that people with the most catastrophic political thoughts and aims, like Adolf Hitler, can gain legitimacy and power within democratic boundaries. This shows the irony in the quote of Schattschneider given the year of publishing (1942): a totalitarian regime came to power without violating the structures of the democratic constitutional system (Fox & Roth, 2000: 393). Events like this point at the tension between freedom of association and the freedom of speech or assembly (Bleich, 2011: 87). Furthermore, they show that there are boundaries to democracy. This is well explained by Karl Popper, who called this the Paradox of Tolerance: tolerance of the intolerant may pave the way for the latter to come in power and eventually put an end to the tolerance. Therefore, we should be intolerant to the intolerant if we want to protect democracy (Popper, 1966: 265-266).
Karl Popper is not the only philosopher who paid attention to the problem of tolerance. Some parties in democratic states hold ideas that commit them to suppress the constitutional liberties when they have the power to do so (Rawls, 1971: 190). Although Rawls uses the example of religious tolerance, he also mentions it can be extended to other instances (Ibid.).
From the original position it can be argued that intolerance to the intolerant is justified, since “justice does not require that men must stand idly by while others destroy the basis of their existence” (Ibid.: 192). Another question is whether the tolerant have the right to curb the intolerant when they do not immediately threaten the liberties of others. According to Rawls, there must be considerable risks that threaten our own legitimate interests (Ibid.). Liberty itself and all its freedom may not be in danger. According to Rawls, whose point of departure is the Original Position1, as long as the constitution itself is secure, there is no reason to deny
freedom to the intolerant. He continues by stating that if the movement is not so strong initially that it can impose its will straightaway, it will tend to lose its intolerance and accept the liberties. Parties should only be restricted when the tolerant sincerely and with reason believe that it threatens their security and institutions of liberty (Ibid: 193). However, when the movement is strong enough it depends on the circumstances whether the liberty of the intolerant should be limited to preserve freedom. This situation presents a practical dilemma, which is not resolvable with mere philosophical thoughts (Ibid.).
As a reaction to the events in the thirties and forties, the notion of not tolerating the intolerant became more popular and prominent. A telling quote about militant democracy originates from the thirties in Germany. In that time, a political and judicial debate took place on the question whether democracy should adhere to the principle of value neutrality given the rise of national-socialist and communist parties (Backes, 2006: 271). Although this principle remained untouched, the idea of militant
1 The Original Position is a hypothetical situation or thought experiment in which the participants place themselves behind a ‘Veil of Ignorance’ that deprives the participants from their personal characteristics such as gender, conception of ‘the good’, etc: from this position, the participants select the principles of their society. For further information, see Rawls’ Theory of Justice (1971).
democracy was born with the thoughts of Karl Loewenstein (Gerber et. al, 1932: 193; translated by Uwe Backes):
“The state has the duty of self-preservation, to defend itself against
precisely those parties, who have the parliamentary apparatus at their disposal
but have made it their agenda to destroy this apparatus. The usual methods
against parliamentary obstruction are insufficient. The parties, which programmatically and actually condemn parliamentarianism, must be disqualified from using it. Possibly not even a change in the constitution would be necessary but a change in the rules of procedure would be enough. The state, which is consciously threatened by two radical wing parties, must decidedly strike back.”
These ideas and other ideas such as the ‘suicidal lethargy of interwar democracies’ of Loewenstein gained influence in the following years, but it was already too late: the NSDAP gained power and consolidated it by methods that were to a large extent legal. Democracy was once again abused by its enemies (Bourne, 2012: 1080). The founding fathers of the post-WW2 German democracy were traumatised and kept the thought of a national-socialist successor in mind: Germany became a militant democracy. Militant democracies are legal systems that are equipped with constitutional and legislative measures that permit states to protect themselves against extreme forces (Ibid.). Fundamental democratic values and party restrictions are anchored in the Constitution.
As Van Biezen (2009) shows, the constitutions of European states have become an important source for party law. Because of the constitutionalisation of political parties, parties could turn to the state for legitimacy and organisational resources. The constitutional rules of the game matter since they influence, determine or constrain what actors can do, and may shape the identities and windows of opportunity (Ibid.: 3). By adding political parties more and more in the constitution of a country, parties are added to the organisational base of a country, and thus their place in the institutional framework and their relation to citizens is partly determined (Ibid.:4).
In practice, democratic states have several options to exclude political parties. They could, for example, refuse to register political parties or they could disqualify the party list (Brems, 2006: 42). They could also stop the public funding of that particular political party. Furthermore, other political parties could take action against an unwanted competitor, by way of ostracism. This is the systematic refusal of a particular (political) actor to cooperate with a particular other actor (Van Spanje, forthcoming). Ostracism thus assumes action by the political parties. However, the main emphasis of this thesis will be on the action of liberal democratic states, in particular the legal exclusion of political parties. In the next section the proscription of political parties will be defined.
The proscription of political parties
The legal banning of parties is also called proscription: “the formal exclusion of parties from electoral politics” (Bourne, 2012: 1065). Bourne identifies three main categories of party bans: the process of making a party illegal, leading to dissolution; ex-ante exclusion from the political process and; lapsed bans, in which parties, despite their proscription, still have a place in public life (2012: 1068). Broadly seen, four categories of justification for party banning could be distinguished: the danger of violent overthrow, the danger of incitement to
hate, the alternation of the character of the nation and outside support or control (Rosenblum 2007: 17). These categories can be used at the same time, which means that multiple justifications may be able to explain the same party ban (ibid.: 71). In order to understand these categories well, I will provide for a brief summary per category.
It is straightforward to assume that any regime would resist against a danger of violent overthrow (Rosenblum, 2007: 43). Many political scientists will argue that one of the key characteristics of political parties is the idea that they restrict their conflict to rivalry about obtaining office and having a say in law and policy by peaceful and electoral means. The objective of parties is to mobilise voters, not armies (Ibid.). Historically seen, the original targets of party bans against violent parties were fascist and neo-Nazi parties. Today, the proscription laws on violent parties are also used to outlaw parties which are assumed to be associated with violent groups. In such cases, the threat is terrorism instead of revolution (Ibid.:44). Examples of such proscription cases are the Turkish ban of the only pro-Kurdish party HADEP (People’s Democracy Party) which was assumed to be associated with the separatist PKK (which is a terrorist organization in the eyes of the Turkish government) (Ibid.: 44-45) and the ban on the Spanish Batasuna (which refused to condemn the acts of the ETA).
The second justification for the proscription of parties that Rosenblum indicates, is incitement to hatred on the basis of race, religion, ethnicity and national origin (Ibid.: 52). One thing that should be noted, as Rosenblum states, is that a large number of states outlaw parties which make explicit reference to race, religion and so forth but do not frame it as hate. Sometimes the reference to race and religion is enough to outlaw political parties. Most often, the restrictions in such parties are justified because people believe them to provoke civil disorder and hostilities. The self-preservation of democracies is immediately at stake when partisans create a “climate of fear” (Ibid.: 53). Furthermore, when they govern, they could
implement or adapt certain policies in a discriminatory way. Rosenblum uses the (de facto, not de jure) ban on the Belgian Flemish Block, which advocated for the repatriation of non-European immigrants (Ibid.: 56).
Besides these two categories, a third category can be distinguished: the party is seen as an existential threat to the state’s ethnic, religious or secular character (Ibid.: 58). When a party is outlawed for this reason, the authorities think the political identity of a state is in danger. They are afraid of an alternation of the political identity of a state through the democratic electoral processes (Ibid.: 59). Partly the identity of a state has to do with democracy, but it could also have to do with other characteristics, such as the ‘Jewish’ characteristic of Israel. Threats to such characteristics, such as changing the constitution in a fundamental way or for example adopting for federalism, hurt states at their inner core and are therefore seen as existential threats to national survival. The crucial question concerning these bans is of course: who determines what is a threat to the national identity of a community? Apart from the clear-cut cases in which it is obvious that something is going wrong (the German NSDAP is an obvious case) there are a lot of grey areas between threatening and non-threatening to national identities. Cases of banning on these grounds occur, despite this fact, among others in Turkey and Israel.
The final justification that Rosenblum distinguishes is ‘democratic self-determination’ (Ibid.: 68). According to Rosenblum, this category does not have the same normative and legal status as the other categories. Due to transnational influences, political parties may be influenced or managed by important factors outside a country. To maintain control over the parties in a country, a government may decide to influence these outside support factors by outlawing a party of stopping the funding. Because this kind of justification is not as mundane as the other ones, it is hard to elaborate on it and it deserves scrutiny (Ibid.: 25, 68). Although these four categories will not be used as strictly in this thesis, they help to
get a clear picture of what kind of justifications could be used. According to Rosenblum, proscription is often framed in terms of necessity (Ibid.: 71). It should be taken into account, however, that the focus of Rosenblum is mainly on religious and ethnic parties. This might have influenced the case selection and the different categories she distinguished. More importantly, these justifications do not provide an answer to the question why some parties are outlawed while other parties do not. Another point of improvement, as we will see in a following section, is the distinction between de jure and de facto party bans. In the first place it matters to a large extent whether the state has decided to outlaw a party or whether other political parties decided to create a cordon sanitaire. Furthermore, it matters whether a party is ´only´ denied state funding, or whether a party is prohibited entirely and when members are prosecutable if they continue to form this party. On this last point I will elaborate in the following sections.
As outlined above, problems can arise when it is not clear what is meant by a concept. Clarity is thus crucial. In this thesis legal proscription of political parties is the prohibition of political parties judicially, and thus differs from other mechanisms of party exclusion. As mentioned, other parties could form a cordon sanitaire around a certain actor, by ignoring it and through this make a statement about the acceptability of the actor. Another mechanism, initiated from the state, is the refusal to register a party or the disqualification of the party list (Brems, 2006: 142). On top of these means to exclude a political party, individual leaders or party persons could also be legally prosecuted. Although all these mechanisms seem to be related, there is a fundamental difference in who can initiate them and the severity of the restriction. This thesis focuses only at the legal prohibition of political parties as such. Furthermore, this thesis only looks at the permanent banning of political parties. Parties could also be banned temporarily, as happened for example with the Moldovan Christian
Democratic People’s Party (Brems, 2006: 143). Although the temporary bans are also very interesting, the emphasis of this thesis will be on the permanent party bans.
This limitation of civil and political rights has occurred in different degrees and frequencies. There is for example a major difference between the United States and countries in Europe concerning the banning of political parties. Due to historical learning processes, European countries allow less political and civil freedoms than the United States. European countries have a more substantial conception of democracy, whereas the United States have a more procedural interpretation (Fennema, 2000). The procedural version assumes that there is no philosophical or normal legitimisation to restrict the freedom of political expression, even though people or democracy itself might be hurt (Ibid.). European countries have learned the hard way that democratic freedoms have certain limits. The possibilities offered by democratic institutions were exploited, especially during the Second World War. This traumatic experience caused a restriction on freedom of speech and association and linked to this was the origination of the ‘militant democracy’ (Loewenstein, 1937) which curtailed political extremism.
Abts and Rummens (2007: 514) demonstrate that the actions against intolerant actors depend to a great extent on the conception of democracy which states adopt. States which adopt a proceduralist version of democracy depart from a neutral state that stimulates the debate between all parties. Freedom of speech has no limits, under the condition that parties that participate play according to the rules of the game, which are mostly defined along the lines of mutual respect and representation, with a prohibition of violence (Ibid.: 513). Intolerant parties are treated as equal opponents, and are often
expected to be neutralized or defeated by the other actors in the game. As opposed to this, states with a substantial take on democracy are more repressive and demand from parties that they do not only play the game according to its rules, but that they really believe in the game itself and express this in their ideology. A repressive approach is seen to be necessary because the ideology of intolerant parties is often irreconcilable with values such as freedom, equality and respect (Ibid.: 514).
Ostracism
Although the ostracism of political parties is different, the literature on this subject provides useful tools in distinguishing between different parties that are banned. As Van Spanje (forthcoming) points out, roughly two categories of parties can be distinguished when talking about the exclusion (both ostracism and proscription) of political parties: anti-immigrant parties and communist parties. These parties have in common that they hold views that diverge to a large extent from the views of mainstream parties. Since the end of World War II, almost all of the parties that have been ostracized can either be classified as anti-immigration, or as communist (until 1989). Anti-immigration parties are those parties who make clear that actions should be taken against immigration, and also send out this message (Fennema 1997, as cited in Van Spanje, forthcoming). Furthermore, the actions that should be taken restrict immigration. The degree of restriction and the salience are very important aspects. (Neo-) Fascist parties also fall within this category. Communist parties are easy to recognize because they often label their parties as communist. A third category that is not mentioned by Van Spanje but that can be seen as a distinctive category of parties is the regionalist or separatist party. Parties such as the Spanish Batasuna (banned in 2003) that threaten or apply violence
or are destructive for democracy or democratic institutions could also be banned. Because of its unexpected and seemingly random nature, terrorism creates fears that affect the self-confidence and the self-image of a democracy. This can lead to a situation, which forces democracies to limit certain civil and political rights.
The banning of political parties did not only happen in different degrees between the United States and countries from the European Union, but also between European countries and even within countries different patterns of proscription have occurred. The main question guiding this thesis is what the conditions are for the initiation of proscription of political parties. Most authors who discuss the subject of proscription can be classified as either judicial/legal or philosophical/normative theorists. I will first elaborate on those two schools of thought before explaining the key explanatory mechanism under attention in this thesis.
Different perspectives on the banning of political parties
In this section I will show that there are at least two groups of authors that can be distinguished in the existing literature on the banning of parties. Previous work on this subject is characterised by a lack of conceptual and theoretical clarity. Although the relative under-theorisation of the research field makes it hard to distinguish different schools of thought, two separate perspectives could be distinguished. I will first elaborate on the normative perspective, and thereafter I will elaborate on the different authors within the legal perspective. Subsequently, I will introduce a new perspective in this field of research; a political perspective. This perspective will emphasise the role of public debates regarding the banning of political parties. In the end I will formulate some expectations following from this political perspective.
The Normative Perspective
The first strand in the literature looks at the proscription of parties in a normative or philosophical way. Researchers from this perspective explain for example that the banning of parties is linked to the paradox which is central to democratic regimes: “to suppress anti-democratic movements infringes notions of tolerance at the heart of the anti-democratic ideal, but to allow them endangers the survival of the very system institutionalizing principles of tolerance” (Fox and Roth, 2000:39). This tension between democratic liberties and protection of democracy is present in several articles and books (Bleich, 2011; Cohen-AlmAgor, 2006) and is largely based on the tension earlier described by Rawls of the tolerance to the intolerant (Rawls 1971: 190).
The main difference with the other perspectives is the emphasis on what ought to be instead of what is, which makes this a prescriptive instead of a descriptive perspective. According to Cohen-AlmAgor (2006: xiii) four factors should be taken into account when considering the restriction of freedom: the content of expression, the manner of expression, the intention of the speaker and the circumstances in which the expression occurs. Of these four criteria, the first and the last are most important since they have the most fundamental impact on the expression. Due to the catch of democracy, which means that there are certain pitfalls in the system of democracy, certain rules are needed to deal with intolerant gestures (Ibid: 2).
According to Rosenfeld (2006: 45-46) hate speech and political parties in general are more likely to be banned in times of stress, i.e. times of major transformations or transitions. The paradox of the intolerant explained by Popper (1966) may not be the case in ordinary times, since there are enough control-mechanisms which take care of stability. It may even be the case that suppressing parties in ordinary times could lead to more sympathy for such a party, especially when they take the martyr role. However, Rosenfeld states that in times of stress it may be necessary to ban hate speech and parties because they could pave the way to
times of crisis (Ibid.). This is according to Rosenfeld the reason why present Germany is not very tolerant to Neo-Nazi activities, since the memory of the Nazi-nightmare and the fear of the possible return of the Nazi-regime created conditions of stress (Ibid.). Democracies like Germany that constitutionally ban political parties that pursue anti-democratic ends are also called militant democracies. The principal fear in these democracies is that democracy could be compromised. Adherence to such a model of democracy is more compelling in times of stress than in ordinary times (Ibid.: 46-47). Furthermore, terrorism can provoke a state of crisis (Ibid: 49). By its unexpected nature, it creates anxieties that lead to a stress-situation.
Abts and Rummens have argued that it is important that certain parties, to the extent that they are inimical to democracy, should be revealed as such and if necessary isolated from power (Abts & Rummens, 2007: 422). They argue that there is an antagonistic discontinuity between the logic of populism and the logic of democracy. Without wanting to explain their argument in great detail, they argue that the populist logic closes down the empty place of power (Lefort, 1986: 273-291) by replacing the diversity of society by the homogeneous people-as-one (Ibid.: 414). Due to this threat to democracies, they are permitted to exclude certain political parties, because they pose a threat to essential features of democracy itself. The proper identification of the enemy of democracy is an essential part of the art of politics, according to Abts and Rummens (Ibid.: 422).
The overarching similarity of the different scholars in the normative perspective, is the idea that the proscription of parties can be characterised by the different normative ‘oughts’ that exist in a society. This results in a situation in which most theorists of this perspective are
prescriptive instead of descriptive. Political actors will act according to their view of an ideal society and then decide whether or not to ban a political party. Researchers within this paradigm mainly look at democratic systems in general, and not at specific cases. Based on the reflection on democratic systems as a whole, and with the help of examples, they try to build theory about the boundaries of democracy. The advantage of this perspective is that it makes a strong case for the worldviews and ideas of actors. However, the theorisation on the abstract level of liberal democracies also has one considerable disadvantage: it does not provide for any empirical explanation about the proscription of political parties.
The problem with the normative perspective on the proscription of political parties is, bluntly stated, that it is not empirical or explanatory. It fails to give a convincing explanation of why in some instances parties are banned while in other instances they are not. This shortcoming is also recognised by Bourne (2012) who states that there are a lot of case studies on the banning of parties, and some comparative studies, but mainly from a philosophical or legal point of view. These studies often “fail to question official rationales for the proscription of political parties and when they do, fail to develop systematic, comparative or sufficiently detailed arguments” (Ibid.:1066). Although the normative perspective should not be dismissed, since it tells us what the motivation of certain political actors could be and what the boundaries of democracy are, an alternative theory is needed to explain the empirical variation.
The Legal Perspective
Another strand in the literature looks at the banning of political parties from a judicial point of view, to which this section will be devoted. The main emphasis of the legal perspective is on the idea that the banning of parties can be explained by the laws and regulations on international and national levels. Logically, domestic laws are a very important element when considering party bans. For the European countries under consideration, those domestic laws
operate within a broader framework of European and international laws. The dissolution published in 1999 by the European Commission for Democracy through Law (Venice Commission) states that the prohibition of political parties should be used with utmost restraint (1999: 5). Governments should assess, before the prohibition process, whether the party in question really poses a significant threat to the free and democratic political order. Furthermore, the proscription should be a consequence of legal findings of unconstitutionalities. Finally, it should be based on sufficient evidence that the party itself, and not only members of the party, pursues political objectives using or preparing to use unconstitutional means (Ibid.). Any restriction on the activity of parties should be consistent with the European Convention for the Protection of Human Rights, in normal times but also in cases of emergencies (Ibid.: 4). Furthermore parties should only be prohibited when they try to change the constitution in a violent way. Resolution 1308 in 2002 of the parliamentary assembly of the European Committee adds to this that political pluralism is one of the fundamental principles of every democratic regime, and thus the prohibition of political parties should only be used as a last resort.
Additionally, every member state has some legal provisions for the prohibition of political parties, most of the time in their constitution or basic law, which are similar to the international agreements. A trend that emerged after the Second World War is, as mentioned above, the constitutionalisation of parties (Van Biezen, 2009). Many constitutions prohibit parties which are adverse to fundamental democratic values (Ibid.: 18). These constitutions ask from parties that they respect the national sovereignty and the territorial integrity of the state. The only countries that have not adapted political parties in their
constitution are Belgium, the Netherlands, Ireland and Denmark (Ibid.: 7).
One of the most promising texts of the legal perspective is written by Peter Niesen (2002a, 2002b). With a comparison of constitutional developments concerning the banning of political parties in Italy and Germany, the author explains three different legal paradigms. The first, anti-extremism constitutional paradigm, was directed against unconstitutional ideas and mainly visible in (Western-) Germany. Extremism was defined as opposition to “fundamental values, centrally: the idea of human rights, and procedural rules (especially the rule of law, control of government powers, political pluralism) in democratic constitutional states” (Backes & Eckhard, 2000: 13-30). However, this paradigm does not explain the whole picture accurately since it assumes a certain anti-National Socialist bias in the application of a party ban (Niesen 2002a: 16-17).
The (second) negative-republicanism paradigm is mainly visible in Italy after the Second World War, and differs in many respects from the anti-extremism paradigm. The negative-republicanism paradigm is not directed impartially against extremist or anti-system parties. Instead, it tries to “protect outward democratic behaviour” (Ibid.: 19). Niesen mentions four criteria that have to be in order to proscribe: a party ban has to be directed against political programmes with a criminal record, based on intent to humiliate (groups of) people, figuring in the history of a society, and there have to be lasting relations of responsibility (2002b). Hereby it adds a historically embedded exception which cannot be generalized, as opposed to the German paradigm (Ibid.).
Finally, the author argues that there is a third paradigm that explains recent developments: the civil society paradigm (Ibid.: 41). The central claim is that democratic self-determination assumes a “positive, self-referential obligation to its lasting reproduction” (Ibid.: 42). For its success, democracy depends on the recognition of the other as equal. Socio-political learning processes are less dependent on the conflicts that take place within a certain country, in the course of one particular path. There is a certain cosmopolitanisation of memory, which makes it possible that a country does not necessarily has to experience a certain event to gain moral knowledge (Ibid.: 43-44). Due to the recent developments in supranational political integration and political learning processes which transcend the borders of a country, civic society modernises itself (Ibid: 45). However, the author states that the consequences of this paradigm are yet to be found out, and they depend on how significant worries about the fate of expressive liberties are addressed.
Although these three paradigms are influential in the judicial literature about party banning, the perspective of Peter Niesen is not the only perspective within the legal school of thought. Brems (2006: 121) looks at the subject of party banning from a scope of freedom perspective. The right to form and join political parties is of key importance in democratic states. Article 22(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that: ‘Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests’ (Ibid.). From the
processes of drawing this article, it becomes clear that banning political parties does not necessarily violate the provision. Moreover, Article 25 of the ICCPR protects political rights in the strict sense, including the right to vote and to be elected. However, it does not mention political parties (Ibid.: 122). Banning a political party violates these articles are violated, just like article 19, which protects the freedom of expression. Therefore it is important that the proscription of political parties is clearly justified.
Proscription is justified when three conditions are met: the restriction must be prescribed by law and must be based on a general rule that is accessible and foreseeable. Secondly, it must serve a legitimate purpose, for example public safety or public order. And finally, the restriction must be necessary in a democratic society (Ibid.: 128-129). The last requirement is most important since it encompasses a proportionality requirement: individual freedom is weighted against the freedom of those who are invoked in the restriction. The author concludes with the idea that it is very important that the application of the party ban must be left to the judiciary, because else the idea of partiality could arise (Ibid.: 187).
I argue that the common denominator of the authors within the legal perspective is that they look at legal systems at the country level, taking the international legal framework into account. This is one of the complementing aspects compared to the normative perspective, i.e. that they take the empirical world into account and look at which legal conditions apply to certain countries. In doing this, the legal perspective gives an accurate view of what is happening in reality. Additionally, they provide us with the insight that actors that initiate party bans operate within a legal framework that constrains and enables their behaviour. This can be linked to historical neo-institutionalism. However, when looking at certain cases of party proscription, explanatory power is lacking.
Because just like researchers of the normative perspective, the legal perspective is not able to explain why certain countries banned parties in history, while parties which have
comparable thoughts more recently are not banned. They thus do not sufficiently explain why actors behave in certain ways. Examples of this are the Soczialistische Reichspartei Deutschlands [SRPD/SRP] (1952) and the Kommunistische Partei Deutschlands [KPD] (1956) in Germany compared to the Nationaldemocratische Partei Deutschlands [NPD] (outlaw failed in 2003), and the Dutch Centrumpartij’86 [CP’86] (1998) compared to the Partij voor de Vrijheid [PVV] (tried to prosecute leader in 2011, failed). This signifies a shortcoming of the legal point of view: how do you explain that under roughly the same legal circumstances, one party is proscribed while another, similar, party is not? The juridical space seems to be a necessary, but not a sufficient condition for the explanation of party ban initiations. By mainly looking at laws, the room for agency is restricted, and this causes the lack of explanatory power.
Furthermore, although the paradigms of Niesen are very promising, they fail to explain the variation on the dependent variable over time. The civic society paradigm at first sight is very appealing, but no empirical expectations are made and therefore the theory is not very falsifiable. These points of improvement originate in the fundamental distinction between descriptive, juridical science and political science which tries to generalise, explain and to find general patterns.
However, the legal perspective should not be disregarded completely because as I said, it offers the legal framework in which states could operate. Furthermore, the civil society paradigm of Niesen offers a new perspective which might lead to new explanations, if it is operationalised. As can be concluded from the previous and the current section, both normative and legal schools of thoughts are missing explanatory power. This leads to the
following research question: What are the conditions for the initiation of proscribing extreme-right political parties?
In the following section, a new perspective will be offered which does more justice to the empirical variation and probably offers more explanatory power.
The New Perspective
When we consider the explanations based on a political science point of view, it is noteworthy that there are not a lot of scholars that try to explain the phenomenon of party ban initiations. Bourne (2012: 1079) conducted a survey of banned political parties in twelve European states. She used the literature of democratisation to explain why new and incomplete democracies might ban political parties. She found that when considering those democracies, several factors help account for the proscription of political parties: threats posed by former regime elites, heightened political tension, instability, insecurity and distinctive modes of transitions (Ibid.). Furthermore, incomplete democracies are often characterised by limited checks and balances and by systematic limitation on political participation, which are also factors that should be taken into account when considering party bans.
Angela Bourne is one of the main authors on this issue. She mainly concentrates on the reasons of banning incomplete democracies (2012) and on the effects of banning on party systems (Bourne & Casal Bértoa, 2014). Effects of party bans are also addressed by other authors (for example Bale (2007), Brems (2006), Tilly (2005), Gordon (1987), Müller (1993)). But instead of considering the consequences of party bans, this thesis aims to look at the causes or conditions of party ban initiations.
Next to these authors, Bleich (2011) compared Germany, the United States and Belgium and explained certain restrictive
measures against parties by the historical roots of a country, with certain path-dependent elements. Although he does not explicitly mention it, his story fits well in a historical institutionalist approach. However, he mainly focuses on party bans themselves and not on their initiations, and although the historical context he outlines is important, it does not account for the difference within countries.
In this section I will introduce a new perspective in this field of research. The new perspective will mainly be based on the idea underlying the book of David Art, The Politics of the Nazi past in Germany and Austria (2006) which is in the same line of thought as the idea of discursive institutionalism of Vivien Schmidt (2008): discourse matters. However, it will be supplemented and adjusted to make causal hypotheses about the reality of the proscription of political parties. First, the theory of Art will be summarised. After that, the pros and cons will be discussed. In the end the expectations guiding this thesis will be discussed.
The central claim Art wants to make, is that public debates do not merely reflect existing political ideas, but that they can also change the ideas of political elites (2006: 28). Those public debates, also called political debates, have the power to shift elite opinion in a dramatic and radical way. In times of national discussion, politicians, media, intellectuals and civic activists debate a particular set of issues (Ibid.: 13). By
debating the lessons of history, political elites are deliberating over the basic ideas and values that guide the contemporary political community (Ibid.: 15). National discussion and public debate can set in motion a series of processes that reshape the political arena in which they occur (Ibid.:14). Public debates are “a set of exchanges among political actors reported in the media” (Ibid.:30). According to Art, “Public debates create new frames for interpreting political issues, change the ideas and interests of political actors, restructure the relationships between them, and redefine the limits of legitimate political space” (Ibid.: 14). One of the assumptions is that the interests of political actors are not fixed and can change through social interaction. Deliberation within a society causes changes that are not
reducible to power (Ibid.).
According to Art, public debates are interesting for a number of reasons. First, elites articulate and defend their ideas more explicitly during periods of contention than during periods of normal politics. Elite debates significantly change mass attitudes. Therefore, changes in elite discourses are linked to changes in public opinion. Public debates also open up the possibility to a sudden and dramatic change in ideas. These moments could be compared to the critical junctures of historical institutionalism, and are sudden moments of change. However, unlike historical institutionalism, it is assumed that these moments could be explained. (Ibid.: 26-28).
Political debates are central to the explanatory mechanism, and are characterised by a certain breadth, duration and intensity (Ibid.: 30). The breadth of the political debate has to guarantee that a wide range of elite actors across the political spectrum participate in it. This means that parties from different backgrounds should be present, but also different interest groups. Furthermore, their silence will be noted when they fail to participate. It is important that prominent members of government and political parties are involved. Additionally, members of the media are also central participants. They play a key role in the articulations of the ideas in three ways: they have an agenda-setting effect, they prime the news by evaluative standards and they pack it in a certain frame (Ibid.). Next to the breadth of the public debate, the duration is important: it needs to last at least a year to meet the definition of a public debate (Ibid.:33). It may even be that an issue lasted several years and by this became a permanent issue in the political landscape. Lastly, the intensity of the public debate is important: references must be made frequently (Ibid.). This could be measured for example by the coverage in the national print media.
The causal mechanism of the influence of political debates has three steps. First they create and consolidate frames, thereafter they shift the weight of elite opinion, and finally they shift the boundaries of legitimate discursive space (Ibid.: 34-39). By this, certain terms and political positions come to be
considered as offensive by a majority of the political community: the public debates change what one can and cannot say. By studying these phases an understanding of ideational change can be created.
Art adds that the public can come to play an active role in public debates. This can happen in all three stages and therefore should not seen as a different stage (Ibid.:40). The activity of citizens depends on political opportunity structures and therefore depends from country to country and from the time in which citizens want to act. The behaviour of politicians and state actors thus determines to a large extent the role citizens and civic activists can play.
The theory of Art is promising for this thesis. It will serve as a hermeneutic device for explaining the empirical variation of the proscription of parties. Because of a change in discourse, political behaviour and institutional structures can be changed. Collective memory plays a large role in this (Langenbacher, 2007: 740). After all, the different processes of collective memory construction in Germany in Austria are one of the key explanatory mechanisms for the difference in electoral success of radical right parties in Germany and Austria. Collective memories “constitute both causal and normative claims about politics in general” (Art 2006:15).
Additionally, the theory of Art creates room to bring discourse and a political perspective in the discussion. Although
public debate is fundamental to democratic life, it has often been neglected by scholars of comparative politics and international relations (Ibid.: 24). Related, public debate is essential to (discussion on) political parties. By this, political agency receives a central role, which may be of influence to the process of banning. This leads to more explanatory empirical power, but also to a stronger political perspective in this discussion, which is necessary since the banning of parties is not only a normative and legal matter but above all a matter of politics.
However, some adjustments should be made to give an accurate view of reality. Within this thesis a different understanding of the mechanism of public debates will be held. Art uses top-down reasoning: those who hold political power have the power to change the attitude of other elites and public opinion. Mass media have an influence in this, because they frame and report the messages of the elite. So the relevant actors are political elites rather than ordinary citizens (Ibid.:14). Art realises that this view is at odds with normative theories of deliberative democracy. However, he states that it is consistent with dominant paradigms within public opinion and political communications research. Public deliberation is mediated by political elites such as politicians, media, personalities and journalists (Ibid.: 25).
According to Art, the problems of deliberative theories, such as the public sphere theory of Habermas, is that they often
exclude politicians and state actors, who play a crucial role in shaping public debate. Deliberation matters in another way according to Art, because elites in democracies react to, challenge, modify and adopt the ideas of others as they debate with each other through mass media (Ibid.: 41). I would like to add that next to their own ideological views and the views of the party as such, politicians do pay attention to the opinion of the electorate because they want to maximise their votes (Downs, 2006:40).
Expectations
Based on the theory of Art as explained above, certain expectations could be formulated which provide guidance in answering the question what the conditions are for the initiation of proscribing extreme-right political parties. However, when looking at the empirical variation of the dependent variable, the legal perspective should not completely be disregarded. Additionally, the history of the specific countries is also of importance. Although it cannot explain the empirical variation completely, it is the framework in which the actors operate, and thus creates a certain opportunity structure. For this reason, the first chapter of the empirical part will deal with the domestic legal framework and the relevant political history of the two countries of interest.
Next to this, the political perspective as discussed above will be added. When following the line of reasoning of David Art, public debates shape the institutional and political reality in which actors operate. Due to public debates, the opinion of the elite, the media and the civil society changed to such an extent
that formerly contested issues became internalized or common ground, explaining the initial banning of parties while similar parties later on were not banned. Another way to formulate this is that the initiation of party bans depends to a large extent on the degree to which a national debate on the boundaries of democracy has taken place. The theory of David Art holds that a public debate sets in motion a three-step chain: frame consolidation, change in elite opinion and a change in the boundaries of discursive space. I will shortly outline what these phases entail.
The first step is about frame consolidation: public debates create frames through reception. The frames can coalesce when the participants restate their central arguments, and are repeated by the media and by participants. Citizens who discuss the issue can also use those same arguments in their discussion. The public debates condense and consolidate frames by cutting the information in easily understandable packages. A last way in which frame consolidation could take place is when political actors use pre-existing frames and package them in a new way.
The next step is a change in elite opinion: after the different frames are consolidated, one should ask oneself in what way the frames that elite actors use change, and in how far public opinion on the matter has changed.
