Is the spectre of Weimar still haunting?: 'Militant democracy' and party proscription in contemporary Germany

Abstract

The way in which democratic states react to political parties with anti-democratic goals is a subject of major interest and debate in the study of political extremism. Previous authors have coined the term ‘militant democracy’ for states that employ severe restrictions against extremist parties. In this regard, Germany is widely perceived as the prototype of a 'militant democracy'. The so-called ‘wehrhafte Demokratie’ scheme within the Basic Law consists of provisions such as Art. 21(2), providing the possibility of banning a party. However, recent developments in the German practice of party-banning challenge the outright classification of Germany as a ‘militant democracy’. Based on a case study of the failed attempt to ban the extreme-right party NPD, this study investigates the question as to what extent the ‘wehrhafte Demokratie’ scheme in Germany can still be characterised as militant in application. It claims that the 2017 judgment of the Federal Constitutional Court represents a paradigm shift in German party-banning, calling for a re-classification of Germany as an ‘immunised democracy’. The Court has moved towards a more cautious and restrictive interpretation of Art. 21(2), displaying an increasing trust in the German democratic system to contain its enemies without having to employ its sharpest legal weapons.