Recent years have witnessed a growing tendency among established democracies to battle political extremism by banning extremist parties. This Article explores this phenomenon in its wide-ranging international manifestations. The Article aims to challenge the prevalent paradigm underlying the discussion of party banning and to introduce a new paradigm for conceptualizing the party-banning phenomenon in its current reincarnation. Traditionally, the discussion concerning party banning has been strongly shaped by the traumatic experience of Hitler's rise to power and the collapse of the Weimar Republic. Hence, it has focused upon parties that are overtly opposed to democracy, like communist or fascist parties. Yet, the threats to democracies have changed considerably in recent years, and it appears that the "Weimarscenario" is becoming far less relevant. Instead, contemporary party banning mainly involves parties that incite to hate and discrimination, parties that support violence and terrorism, and parties that challenge the identity of the state. These new banning categories are difficult to understand and justify within the traditional paradigm and require an alternative framework. The new paradigm must focus upon the electoral arena as a source of legitimacy and status rather than merely an instrument for coming to power. This Article links this new legitimacy paradigm to the change in the nature of political parties and to their transformation from primarily representative organizations into "public utilities," or "public service agencies." Once the contours of the legitimacy paradigm are established, this Article proceeds to examine which parties can justifiably be banned within this paradigm and to address its practical implications.
Defending Democracy: A New Understanding of the Party-Banning Phenomenon,
46 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol46/iss5/4