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Defensive Democracy': a Cross-National Assessment of Formal-Legal Defensiveness in 8 Advanced European Democracies

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Defensive Democracy': a Cross-National Assessment of Formal-Legal Defensiveness in 8 Advanced European Democracies A comparative analysis of 'Defensive Democracy': a cross-national assessment of formal-legal defensiveness in 8 advanced European democracies Submitted by Beimenbetov Serik to the University of Exeter as a thesis for the degree of Doctor of Philosophy in Politics In December 2014 This thesis is available for Library use on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. I certify that all material in this thesis which is not my own work has been identified and that no material has previously been submitted and approved for the award of a degree by this or any other University. Signature: ………………………………………………………….. 1 ABSTRACT This dissertation addresses the question how democracies defend themselves from political parties and groups which profess antidemocratic values and use violence as one of the means to achieve their goals. In particular this dissertation analyses the range of formal-legal measures and provisions that democracies have at their disposal to constrain their non-democratic groups and political parties, looking at eight advanced European democracies Austria, Belgium, Denmark, France, Germany, the Netherlands, Sweden, and the United Kingdom. These measures and provisions are identified in constitutional documents, civil law, criminal law, in electoral laws, and other pertinent legal sources passed by the legislature and issued by courts of these countries, pertaining to the regulation of political freedoms, public order, and homeland security. On this basis, the thesis provides an encompassing and systematic assessment of differences and similarities between these democracies and thereby assesses their relative formal-legal democratic defensiveness. 2 TABLE OF CONTENTS List of tables 8 List of abbreviations 9 1 Introduction 1.1 Setting the problem and developing the research questions 11 1.2 Organisation of the thesis 17 2 The concept of defensive democracy: the theoretical background and prior research 2.1 Introduction 20 2.2 Origins of defensive democracy 20 2.3 Distinguishing strategies of defensive democracy 23 2.3.1 Party-based strategies to defend democracy 26 2.3.2 Cultural-societal strategies to defend democracy 30 2.3.3 Formal-legal strategies to defend democracy 36 2.4 Conclusion 50 3 Toward systematic assessment of variations between democracies in formal-legal democratic defensiveness: developing an analytical framework 3.1 Introduction 53 3.2 Defining and broadening the scope of formal-legal measures 54 3.2.1 Rules on the ballot access as de facto constraint against non-democratic parties 57 3.2.2 The role of electoral threshold in constraining non-democratic parties 59 3.2.3 The role of rules constraining the access of non-democratic parties to direct state funding 62 3.3 Developing the analytical framework: distinguishing three types of legal mechanisms 63 3.4 Methodology: Coding procedure to assess variations in formal-legal democratic defensiveness 71 3.5 Sources 77 3.6 Basic rationale of the country selection 80 3 3.7 A first overview of formal-legal defensiveness between eight European democracies 81 3.8 Conclusion 84 4 Systematic assessment of variations between democracies in the presence of legal party and group ban 4.1 Introduction 85 4.2 Democracies with high defensiveness in the category of legal ban 86 4.2.1 Legal ban in Austria 86 4.2.2 Legal ban in France 87 4.2.3 Legal ban in Germany 89 4.3 Democracies with medium defensiveness in the category of legal ban 92 4.3.1 Legal ban in the Netherlands 92 4.3.2 Legal ban in Belgium 94 4.3.3 Legal ban in the United Kingdom 95 4.3.4 Legal ban in Denmark 97 4.3.5 Legal ban in Sweden 98 4.4 Evaluation of findings 98 5 Systematic assessment of variations between democracies in the presence of freedom constraints 5.1 Introduction 101 5.2 Democracies with high defensiveness within the freedom constraints category 102 5.2.1 Freedom constraints in Germany 103 5.2.2 Freedom constraints in Austria 107 5.2.3 Freedom constraints in France 110 5.2.4 Freedom constraints in Belgium 114 5.3 Democracies with medium defensiveness within the freedom constraints category 117 5.3.1 Freedom constraints in the United Kingdom 118 5.3.2 Freedom constraints in the Netherlands 121 5.3.3 Freedom constraints in Denmark 124 4 5.3.4 Freedom constraints in Sweden 126 5.4 Evaluation of findings 129 6 Systematic assessment of variations in the presence of operational constraints 6.1 Introduction 131 6.2 Systematic assessment of variations across operational constraints 132 6.2.1 Democracies with high defensiveness in operational constraints 133 6.2.1.1 Operational constraints in Germany 133 6.2.1.2 Operational constraints in the Netherlands 137 6.2.1.3 Operational constraints in Austria 140 6.2.1.4 Operational constraints in Belgium 144 6.2.2 Democracies with medium defensiveness within the operational constraints category 147 6.2.2.1 Operational constraints in the United Kingdom 147 6.2.2.2 Operational constraints in Sweden 152 6.2.2.3 Operational constraints in Denmark 154 6.2.2.4 Operational constraints in France 156 6.3 Summary of findings and conclusion: patterns of formal-legal democratic defensiveness 159 7 Factors shaping formal-legal democratic defensiveness: theoretical perspectives 7.1 Introduction 166 7.2 Theorizing the influence of the type of democratic government on shaping formal-legal democratic defensiveness 169 7.3 Theorizing the relationship between the historical experience with the breakdown and stability of democratic regime and formal-legal democratic defensiveness 176 7.4 Comparing theoretical perspectives with the empirical findings 185 7.4.1 Examining the role of the type of democratic government in shaping formal-legal democratic defensiveness 186 7.4.2 The role of historical experience with the 5 breakdown and stability of democratic regime in shaping formal-legal democratic defensiveness 187 7.5 Conclusion 189 8 Case-study: why the United Kingdom has higher defensiveness than theoretically expected? 8.1 Introduction 191 8.2 British fascism and legal responses to it: advancing defensiveness in legal ban and freedom constraints 194 8.2.1 Far right pro-fascist movements in Britain 194 8.2.2 The enactment of the Public Order Act 1936: advancing defensiveness in group ban 196 8.2.3 The threat of fascism in post-war Britain: advancing defensiveness on banning anti-racist speech 199 8.3 The conflict in Northern Ireland (1968-1998): advancing on key indicators in legal ban dimension 200 8.3.1 Political background of the conflict in Northern Ireland 201 8.3.2 The legal response to the conflict in Northern Ireland: new framework for legal ban of extremist and terrorist groups 204 8.4 The Miners’ strike (1984-1985): advancing democratic defensiveness in freedom constraints category 208 8.4.1 The Public Order Act 1986: push for stricter laws for the control of assemblies and demonstrations 209 8.5 Post-9/11 and 7/7: advancing defensiveness in operational constraints 211 8.5.1 Legal response to terrorism: strengthening operational constraints 213 8.6 Conclusion 217 9 Conclusion 219 9.1 Summary of the main findings and original contribution 219 9.2 Theoretical and empirical implications 223 9.3 Avenues for further research 226 6 10 Appendix 232 11 Bibliography 241 7 LIST OF TABLES 1 Giovanni Capoccia’s model of ‘defensive democracy’ 25 2 Ballot access requirements in selected democracies in Europe 58 3 Formal electoral threshold at national level in eight European democracies 60 4 Three analytical categories of formal-legal democratic defensiveness 65 5 A systematic mapping of differences in formal-legal defensiveness between 8 European democracies 81 6 Systematic assessment of variations in the category of legal ban 85 7 Mapping democracies across freedom constraints 101 8 Overview of configurations among democracies in the category of legal ban and freedom constraints 129 9 Mapping of democracies across operational constraints 132 10 Country configurations across three categories 159 11 Overall pofiles of formal-legal democratic defensiveness among 8 European democracies 161 12 Theoretically expected level of democratic defensiveness of substantive and procedural democracies 173 13 Overview of configurations of experience and nature of democratic breakdown among eight democracies 179 14 Examining the relationship between the type of democratic government and the two main profiles of democratic defensiveness 186 15 The relationship between the historical experience with the breakdown of democracy and the level of democratic defensiveness 187 16 Core legislation in the UK increasing formal-legal defensiveness 193 8 LIST OF ABBREVIATIONS AIVD Algemene Inlichtingen- en Veiligheidsdienst BfV Bundesamt für Verfassungsschutz (Federal Agency for the Protection of the Constitution) BNP British National Party BUF British Union of Fascists BVerfG Bundesverfassungsgericht Cf. confer (Latin for ‘compare’) CPUSA Communist Party of the United States of America DCRG Direction Centrale des Renseignements Généraux DCT Direction du la surveillance du territoire DKP German Communist Party (Deutsche Kommunistische Partei) ECHR European Convention on Human Rights ETA Euskadi Ta Askatasuna (Basque Homeland and Freedom) EU European Union FN National Front (Front Nationale) FPÖ Freiheitliche Partei Österreichs FRG Federal Republic of Germany ICERD International Convention on the Elimination of all Forms of Racial Discrimination ICCPR International Covenant on Civil and Political Rights INLA
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