Jessika Eichler, affiliated with Law & Anthropology Department, Max Planck Institute

It seems that a one-sided idea of democratic thinking has been gaining ground in the public discourse, and with it, a steady alienation from what constitutional courts at least would qualify as non-derogable principles such as, famously, human dignity and the protection against discrimination including racist conduct. What has been accompanying this constitutional amnesia is a growing normalisation of right-wing ideas in Europe no longer limited to anti-migration policies which have come to be absorbed and actively supported also by moderate or even centre-left parties. Quite apparently, what we may call humanistic limits or what human dignity would demand from society, from policies, has been delegated to the margins. It is hence the classical role of the judiciary, as a constitutional guardian, protecting humanity from its evil, that has become more crucial than ever in these times of transformation. The article discusses the role of right-wing party bans in German constitutional law (with a particular focus placed on AfD) as a viable solution to this alienation from foundational principles, and by doing so, it offers an alternative reading of democratic thought generally – embracing instead an inclusive-pluralistic understanding of democracy.

Find the German version of this blog article here.

Disentangling Democratic Thinking and the Significance of Human Dignity

In the decision Gorzelik vs. Polen (2004) the European Court of Human Rights (ECtHR) would unambiguously note „democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position” (para.90). In that sense, minority protection becomes part and parcel of democratic thought, the foundation of which are established with the protection of human dignity which in itself represents a central principle of the German constitutional order (freiheitliche demokratische Grundordnung = liberal democratic constituent order) as stated in the second NPD process. According to the judgement, any form of legally derogatory status or unequal humiliating treatment prove irreconcilable with human dignity, especially where the prohibition of discrimination (art.3(3) German Constitution) is being infringed upon. The principle of equality in fact demands protecting those subjected to discriminatory and disparaging treatment including considering that person second class or inferior; basic violations of the equality principle are hereby understood as infringements upon human dignity. Such irreconcilability with the German constitutional order becomes manifested in cases where antisemitic and racist discriminatory language is used. Also in the abstract, human dignity – alongside democracy and the rule of law – is understood as constituting what has been termed ‘triadic core elements’ of the German constitutional order, hence contributing to the further spelling out of the latter. It would hence seem absurd to allow for a ‘universalised’ or ‘normalised’ majority-driven understanding of democracy to prevail that proves largely ignorant of minority needs, agendas, ultimately rights. In other words, an egalitarian exercise of human dignity is to be guaranteed, a special focus is indeed to be placed on the prohibition of discrimination.

Party Bans in a Context of Discriminatory and Racist Conduct

It wouldn’t seem far-fetched to concern ourselves with the German constitutional order with a specific focus to be placed on minorities against the background of the threats to minorities, exercised, for instance, through group-specific forms of hostility, and thereby discrimination. In such context, we shall also refer to the relevance of the issue and its particular articulation during the time of the Nazi regime. The ECtHR too considers racist discrimination as a particularly malicious form of discrimination, hence requiring (State) institutions’ utmost attention while also mirroring a specific societal model: “It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as threat but as a source of enrichment“. The Court hereby identifies a direct conceptual relation, and a mutual contingency between democracy and non-discrimination, maintaining that “no difference in treatment which is based (…) on a person’s ethnic origin is capable of being objectively justified in a contemporary society built on the principles of pluralism and respect for different cultures“. The judgement hence calls upon State institutions to fight racism, by adopting “any possible measure”, also in view of society’s pluralistic outlook. Banning a political party which clearly and decidedly represents racist views, which demonstrably makes these circulate and consolidates them in society, which portrays minorities as a threat, which stereotypes and discriminates against these, seems like a necessary, adequate and a sheer indispensable step to undertake. We may want to recall here that art.21(2) of the German constitution unambiguously understands any limitations on or (even including) the entire elimination of the constitutional order as unconstitutional. Alongside the daily dangers this carries for minorities, such a political party has developed a certain power which not only threatens State institutions but society as a whole, its diversity and pluralism.

In terms of the party ban specifically, it is argued that the focus is to be placed on those parties that prioritise the collective over individual human beings or that understand particular groups as being of lesser value. The German Constitutional Court gives a clear weight in this case, placing a dedicated focus on human dignity, thereby depriving the State and its legal order of any absoluteness or ‘natural’ precedence. As we would generally assume as given, human dignity assumes the highest and most unimpeachable of all constitutional values, as a leading constitutional principle which also exercises impacts on other constitutional provisions, namely the interpretation of constitutional rights. Similar conclusions may be drawn as far as constitutional rights in their entire range are concerned. In the second NPD decision the Court notably refers to certain unimpeachable or sacrosanct values underlying the State order; the absolute value of these rights finds mentioning in that regard. We may also refer to the particular value inherent to human dignity that may be derived from the its position in the German Constitution enjoying the first rank in the constitutional order while also being integrated into the so-called ‘eternity clause’ in art.79(3) of the German Constitution. Very easily we would consider other constitutional rights (objects of protection = Schutzgüter) as being less absolute and hence dispensable comparatively speaking, that is, when entering into conflict. In the case at hand, this would possibly lie in the multi-party system, as a constituent element of the constitutional order with the multiparty system commonly (often wrongly) referred to as being jeopardised. Other than it was the case in the SRP decision – another party ban – the Constitutional Court found in the NPD decision that the multi-party system was not explicitly representing an indispensable constituent element of the constitutional order. Similar conclusions can be reached on the principle of representation which is not to be considered unnegotiable according to the Constitutional Court. What results from this is a State-critical and human rights-oriented constitutional order which finds its orientation ‘from below’ and a constitutional state whose precise substance is to be considered as irreducibly political and as being submitted to a democratic controversy.

The Demands of Democracy and Pluralism – What Place for Minority Protection?

On the other hand, it is precisely such (inclusive-pluralistic) understanding of democracy, that is, for any rights holder to gain access to the law, which establishes an essential point of orientation for human dignity, also being derivable from the principle of legal equality: human dignity notably creates the entitlement to free and equal participation in the public power. Otherwise both art.3 and art.1(1) would be violated where legal equality was at stake, for instance, where this would concern attributions such as ‘inferiority’ or ‘legal incapacity’ as concerning people of particular background or skin colour. Understanding democratic thought in an inclusive light is surely not limited to electoral rights. In other words, democratic principles are not to be reduced to rights holders’ political participation (and not even including everyone), that is, a mere participation in public power. The Council of Europe’s legal order may serve as an orientation here, those special rights reserved to ‘national’ minorities to particular extents. As early as 1995 would the Council of Europe establish a holistic protection regime including positive measures that would find articulation under the Framework Convention for the Protection of National Minorities: “a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity”. Said principle (5th preambular paragraph) has further gained prominence as one of the EU’s structural principles. The idea of a genuinely democratic and pluralistic societal system hence goes beyond a commitment to fairly (as in ‘equally’) treating minorities; instead, the former finds its roots in a dedicatedly positive discriminatory approach. Especially the State duty to create adequate conditions for expressing, maintaining and developing minority identities proves to become an immense challenge for the State in times of the AfD with its presence in (social) media and its general socio-political influence. A similarly positive discriminatory approach may be derived from German Constitutional law itself. Let us start with the premise according to which the individual would enjoy more relative weight compared to the State and its majority orientation: the discussed art.1(1) Constitutional Law manifestly protects the identity of the individual in its essence in view of any assimilationist interferences by the State – and when read in conjunction with art.2(1) German Constitution such individuality is allowed for the maximum of its development potential. Such right that strives to guarantee an individual’s development possibilities is further spelt out in art.4(1) & (2) German Constitution including an important religious dimension and as a source of cultural identity. If we were to understand the right to personal development in an egalitarian way, bolstered by the principle non-discrimination and of equality (art.3 German Constitution) turning these rights accessible to everyone, such right would still need to be tailored to the particular situations cultural and linguistic minorities find themselves in, and require – in the sense of genuinely guaranteeing these rights – respective safeguards.

Inclusive Democracy across Legal Orders

Minority protection thereby goes hand in hand with the idea of pluralism, as yet another fundament of a healthy democratic system and, as it is substantiated here, of the German constitutional order. Again, we shall refer to the Gorzelik vs. Polen decision issued by the ECtHR: doing justice to the idea of a functioning democratic system, the Court calls for a form of pluralism based on „the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, literary and socio-economic ideas and concepts“ (para.92). Similar principles that are generally ignored by AfD – notably pluralism, tolerance, openness – are established by the Court in Perinçek vs. Switzerland in the context of the Holocaust denial, as a legitimate limitation of freedom of expression: such limitation is to be traced back to foundational legal principles, as argued by the ECtHR, notably “the demands of pluralism, tolerance and broadmindedness without which there is no ‚democratic society‘“.

EU law too limits freedom of opinion (Charta of Fundamental Rights, art.11) in these cases: in the name of tolerance and pluralism, the European Court of Justice (ECJ) prohibits hate speech and incitement to violence. What is more, freedom of opinion (also in the name of pluralism) has become understood as giving rise to positive measures. Further associations may be made with cultural human rights or minority-specific rights; these have also gained recognition under the umbrella of the ‘common values’ of the Member States which now also explicitly include minority rights (art.2, TEU) under the Lisbon framework. These values, as it is stated in EU Treaty Law (art.2 TEU), inform societies in which pluralism stands side-by-side with non-discrimination and tolerance and thereby (and this merits particular attention!) operate as leading principles guiding interpretation and development of EU law. Particular weight is ascribed to these principles, namely by recognising what has been termed a “specific and unique entity that acts in a constitutionally active manner in the European order“. By embracing these principles, it has been further argued, the TEU’s principle of homogeneity has been relativised. This also applies to the EU legislative process: where cultural matters have failed to be taken into consideration, the State’s efforts related to preserving diversity may be undermined, the Court argues. Unequivocally then, the idea of pluralism is to be derived from the legally binding and hierarchically most upper level of the legal order: accordingly, art.2 TEU gives rise to the idea of democracy – “pluralism is an element of democracy“. We shall, again, be reminded of the legally binding and guiding nature of EU law, by means of ‘direct effect‘ and ‘supremacy‘; beyond that, EU primary law (Lisbon Treaties) enjoys a constitution-like recognition, binding EU secondary law.

Also in the constitutional context, pluralism lies the foundations for certain core principles of the State’s very design which enjoy recognition as absolute values and which, therefore, have to be defended against any attacks. In this sense, we can sense a clear commitment to the concept of ‘militant democracy’ – a clear response is given to the enemies of democracy and also those opposing a pluralistic understanding of democracy. Based on findings derived from research on extremism, anti-plural ideologies are considered a valid indicator of extremism. A party ban would therefore not only serve minority protection and its very premisses, that is, the non-discriminatory enforcement of the right to human dignity and hence prevent any forms of stereotypisation or threats, it would also contribute to preserving a pluralistic society, both State-institutionally-speaking and civil society-wise.