The Centre Cannot Hold: Reflections on Militant Democracy in Germany

Document

Cited authorities 2

Cited in

Author	Benjamin Low
Position	Senior Freshman LLB Candidate, National University of Singapore
Pages	136-158

THE CENTRE CANNOT HOLD: REFLECTIONS ON

MILITANT DEMOCRACY IN GERMANY

BENJAMIN LOW

Introduction

On 24 September 2017, Germany went to the polls to elect the 19th

Bundestag and, by extension, the next government of the Federal Republic.

At the time of the election, most analysts and opinion polls were predicting

a sizeable, albeit reduced, victory for the centre-right Christian Democratic

Union (CDU/CSU) and more disconcertingly, electoral gains for the

populist right-wing Alternative for Germany (AfD).

The opinion polls

were prescient: the CDU/CSU took 26.8% of the vote, its lowest share since

1949, while the AfD took 12.6% of the vote,

easily surpassing the 5%

electoral threshold needed to attain representation in the Bundestag and

leapfrogged to become the third-largest party in the Bundestag after the

CDU/CSU and the centre-left Social Democratic Party (SPD).

The results of the 2017 Federal Election are significant in that the

present composition of the German parliament remains even more

fragmented than ever, thereby making the task of forming a governing

coalition extremely difficult.

More importantly however, a far-right

political party in Germany has managed to achieve parliamentary

representation for the first time since the inception of the Federal Republic.

While it remains to be seen whether the AfD can continue its present

string of electoral successes, the 2017 election result raises questions as to

the viability of Germany’s constitutional-legal model of ‘militant

 Senior Freshman LLB Candidate, National University of Singapore. I am grateful to Agnes

Lo for her unstinting support in this endeavour. All errors remain my own.

‘Sonntagsfrage Bundestagswahl’ (Wahlen, Wahlrecht und Wahlsysteme)

accessed 15 December 2017.

‘2017 Bundestag Election: final result’ (Federal Returning Officer, 12 October 2017)

2017/34_17_endgueltiges_ergebnis.html> accessed 16 December 2017.

§ 6, Federal Electoral Law (Bundeswahlgesetz, BWG) (FRG).

At the time this article was written, coalition talks between the CDU/CSU, the Free

Democratic Party and the Green Party had collapsed, prompting the CDU/CSU to seek the

possibility of another ‘grand coalition’ with the SPD.

[2018] Reflections on Militant Democracy in Germany 137

democracy’, which had been designed to pre-empt and neutralise the sort

of electoral outcomes that we saw last year.

Furthermore, the results of the 2017 Federal Election follow the

Federal Constitutional Court’s earlier ruling against a ban of the far-right

extremist National Democratic Party of Germany (NPD).

Considered

cumulatively, these developments suggest that militant democracy in

Germany is not functioning as well as previously. However, the decline in

militant democracy did not begin with the NPD case, instead it goes back

to the 1970s when the Constitutional Court demonstrated its increasing

reluctance to authorise the banning of extremist political parties. This

gradual change in the constitutional jurisprudence of the German courts

suggests a rollback in the ambit of militant democracy in Germany, which

is especially problematic given that it is taking place amidst the current

period of rising support for populist political parties on both ends of the

ideological spectrum across Europe. While contemporary research on the

nature and features of the German model of militant democracy is

plentiful, none appears to have satisfactorily addressed the new

phenomenon of extreme populism in Europe nor reconcile existing

political developments with the present model of militant democracy.

The focus of this article will be the development of an understanding

of the evolutionary change in German constitutional jurisprudence and its

implications for Germany’s approach towards dealing with extremist

political organisations. First, the article will consider the legal aspects and

features of the German model of militant democracy and their historical

application since the promulgation of the Basic Law.

Second, the legal-

political developments of 2017 will be analysed and their implications for

militant democracy in Germany will be discussed. Finally, this article will

attempt to set forth possible ways of navigating the present legal quandary

that the German constitutional system finds itself in and consider and

propose a recalibration of the traditional approaches and rationales

underpinning militant democracy in Germany.

Bundesverfassungsgericht (BVerfG), Judgment of the Second Senate of 17 January 2017, 2

BvB 1/13 - Rn. (1-1010), English translation available at

http://www.bverfg.de/e/bs20170117_2bvb000113en.html.

Basic Law for the Federal Republic of Germany (Grundgesetzfür die Bundesrepublik

Deutschland, GG) in the revised version published in the Federal Law Gazette Part III,

classification number 100-1, as last amended by article 1 of the Act of 23 December 2014

(Federal Law Gazette I p. 2438).

138 Trinity College Law Review [Vol 21]

I. Defending Democracy: Lessons from Weimar

The concept of militant democracy as a constitutional legal-political

system has its origins in the writings of Karl Loewenstein and other

contemporary scholars of the 1930s. Amidst the backdrop of the electoral

success of the National Socialist German Workers Party (NSDAP) and

their equally successful destruction of the liberal-democratic structure of

the Weimar Republic,

Loewenstein argued for liberal democracies to arm

themselves with a slew of legal measures to combat Fascist and National

Socialist movements,

including the proscription of organisations that

were intrinsically anti-democratic in nature

and the removal of the ability

of political parties to form paramilitary formations.

Democracy was thus

to be made ‘militant’ through legislative measures that would ‘fight fire

with fire’.

When the Parliamentary Council convened in Bonn in September

1948, its members were virtually unanimous in their recognition that the

new constitution for Germany should contain explicit provisions for the

suppression of political parties that were hostile to the freiheitlich-

demokratische Grundordnung (free democratic basic order).

Weimar had

shown the way. Without institutionalised legal measures to protect

themselves against what might be termed democracy’s ‘internal enemies’,

democratic regimes would find themselves helpless to combat political

extremism and subversion from those who sought to do away with

democracy.

The Parliamentary Council produced the German Basic Law. Article

79(3) prohibits amendments to the basic principles included in Articles 1

(dignity of man) and 20 (democratic, federal, and social state based on the

rule of law); Article 21(2) provides for the possibility of disbanding

antidemocratic parties that seek to undermine or abolish the free

democratic basic order; Article 9(2) allows the dissolution of

antidemocratic associations; Article 18 provides that individuals who

For an excellent description of the course of events leading to the collapse of the Weimar

Republic, see David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and

Hermann Heller in Weimar (OUP 1997).

Karl Loewenstein, ‘Militant Democracy and Fundamental Rights, I’ (1937) APSR 417, 432.

Karl Loewenstein, ‘Militant Democracy and Fundamental Rights, II’ (1937) APSR 638, 645.

ibid 648.

ibid 656.

Michael F Feldkamp, Der Parlamentarische Rat, 1948–1949 (Gttingen: Vandenhoeck &

Ruprecht 1998) 70.

[2018] Reflections on Militant Democracy in Germany 139

abuse rights in order to subvert the liberal democratic order may lose their

individual freedoms; and Article 20(4) gives every citizen the right to resist

attempts, including those of the public authorities, to abolish the

constitutional order.

Reference is made throughout this article to Articles 9 and 21. These

provisions warrant consideration in further detail, since they are

concerned with the most obvious and the most notable legal aspect of

militant democracy: the banning of associations and political parties.

Article 9(2) permits the Federal Government to dissolve political

associations whose aims and activities contravene the criminal laws of

Germany or which are directed against the constitutional order. It places

the discretion to ban in the hands of the executive.

This contrasts with

Article 21(3) which stipulates that political parties may only be deemed

unconstitutional by the Federal Constitutional Court. Clearly, the framers

of the Basic Law, while not wanting to deny the State the means to combat

organised political extremism, sought to curb the possible misuse of

Article 21 by the federal executive to ban its political opponents by placing

the right to ban squarely within the Federal Constitutional Court’s

jurisdiction. As Judith Wise has pointed out,

the greater constitutional

protection of political parties complements the protection of democracy

under militant democracy.

II. Militant Democracy in Action: The SRP and the KPD

Cases

Just a few years after the founding of the Federal Republic of Germany and

almost immediately after the establishment of the Federal Constitutional

Court, militant democracy was put to the test as the Federal Government

submitted applications to the Constitutional Court in November 1951 to

declare both the Socialist Reich Party (SRP) and the Communist Party of

Germany (KPD) unconstitutional and pave the way for their dissolution.

The SRP had been established by former members of the NSDAP and

claimed to be the legitimate successor of the NSDAP. Its party programme

was geared towards the establishment of a one-party state modelled on the

Thus the banning of political associations is not subject to the approval of the Federal

Constitutional Court but is instead a mere administrative action.

Judith Wise, ‘Dissent and the Militant Democracy: The German Constitution and the

Banning of the Free German Workers Party’ (1998) The University of Chicago Law School

Roundtable 301.

ibid 311.

140 Trinity College Law Review [Vol 21]

tenets of National Socialism. On this, the court was left in no doubt that

the SRP was an unconstitutional party that fell within the ambit of Article

21 and duly declared the party to be unconstitutional.

The decision to ban the Communist Party took longer and was mired

in considerable political controversy

but eventually in 1956, the

Constitutional Court reached the same conclusions that it did in the SRP

case and declared that the KPD was an unconstitutional political party that

was to be dissolved.

Both decisions are unique in that they marked the first, and thus far

only, instances where political parties were successfully banned under

Article 21 of the Basic Law. The judgments in both the SRP and KPD cases

are noteworthy as well as they represent the Constitutional Court’s first

efforts at providing a comprehensive interpretation of Article 21 and the

nature of the militant democratic order in Germany. In its judgment in the

SRP case, the Constitutional Court laid down the test for determining a

party’s constitutionality based on its acceptance or rejection of the free

democratic order.

The court further held that if a party’s internal

organisation does not correspond to democratic principles, this would

generally suggest that the party intended to impose its own structural

values onto the State.

This legal test of ‘acceptance or rejection’ of a free democracy raises

a further question: what exactly constitutes the free democratic order for

the purpose of Article 21 of the Basic Law? In the SRP case, the

Constitutional Court gave its famous definition of the freiheitlich-

demokratische Grundordnung as:

‘an order which excludes any form of tyranny or arbitrariness and

represents a governmental system under a rule of law, based upon

self-determination of the people as expressed by the will of the

existing majority and upon freedom and equality. The fundamental

principles of this order include at least: respect for the human rights

given concrete form in the Basic Law, in particular for the right of a

person to life and free development; popular sovereignty; separation

2 Entscheidungen des Bundesverfassungsgerichts (BVerfGE, Decisions of the Federal

Constitutional Court) 1 (SRP), The Constitutional Jurisprudence of the Federal Republic of

Germany (translated by Donald Kommers and Russell Miller, 3rd edn, DUP 2012) at 286.

For a full account of the history behind the ban proceedings against the Communist

Party, see Justin Collings, Democracy’s Guardians: A History of the German Constitutional

Court 1951–2001 (OUP 2015) 40-45.

5 BVerfGE 85 (KPD).

2 BVerfGE 1 (n 16) 46 (translated in Kommers, Constitutional Jurisprudence at 287–288).

[2018] Reflections on Militant Democracy in Germany 141

of powers; responsibility of government; lawfulness of

administration; independence of the judiciary; the multi-party

principle; and equality of opportunities for all political parties.’

In its decision in the KPD case, the Constitutional Court re-applied the

same standards that it had laid down in the SRP case, albeit with a slight

modification in that it extended the ambit of Article 21 to encompass all

forms and manners of ‘totalitarian’

parties, and not just the Fascist and

National Socialist parties of old. Additionally, the Court interpreted Article

21 as a clear manifestation of the militant democracy’s willingness to

defend itself, using the particular term streitbare Demokratie

for the first

time.

More crucially, the Constitutional Court made it clear that a political

party could be declared unconstitutional as long as its aims were

manifestly at odds with the Constitution even if the party had no hope of

fulfilling these aims.

This seemingly low threshold for constitutionality

appears to have been influenced by the fact that the KPD, despite its lofty

goal of establishing the Marxist-Leninist programme, was already facing a

steady decline in its electoral fortunes and realistically stood no chance of

achieving its intended aims.

Taking these two decisions together, the Federal Constitutional

Court’s standard in determining the successful applicability of Article 21

appeared to hinge chiefly on whether or not the defendant political party’s

programme in question constituted an active rejection of the existing free

democratic order. As long as this standard was met, it appears that the

threshold for invoking Article 21 would have been amply satisfied even if

the political party in question was incapable of fulfilling its intended

programme. Thus, the lynchpin of the Constitutional Court’s attitude in

the 1950s was modelled on what Peter Niesen

refers to as the ‘anti-

ibid 12-13.

5 BVerfGE 85 (n 18) 139.

The term ‘streitbare Demokratie’ can be taken to mean literally ‘fortified democracy’ or

‘battlesome democracy’. Some commentators have rejected the current definition of

‘streitbare Demokratie’ as meaning a militant democracy but since that definition has been

accepted almost universally by English and German commentators, the terms shall be

treated as as co-terminus.

5 BVerfGE 85 (n 18) 139.

ibid 153.

The party only managed to receive 5.7% of the vote in the 1949 Bundestag election and

2.2% in the 1953 election.

Peter Niesen, ‘Anti-Extremism, Negative Republicanism, Civic Society: Three Paradigms

for Banning Political Parties - Part I’ (2002) 1,2 German Law Journal 12.

142 Trinity College Law Review [Vol 21]

extremism’ approach,

that of combating political extremists and anti-

democratic elements of the right and left.

Symbolically, the SRP and KPD cases signified the Federal Republic’s

intolerance of political extremism from both ends of the ideological

spectrum. Practically speaking, the decisions were admittedly of little

significance since both parties were in no position to realistically threaten

the liberal-democratic order in existence at that time.

III. The Threshold is Raised: Militant Democracy

Restrained

It is noteworthy that the Socialist Reich Party and the Communist Party of

Germany remain the only two political parties to have been successfully

banned in the history of post-war Germany. This is despite numerous

applications brought by the Federal Government against other political

parties since then.

When analysing these later decisions by the Federal

Constitutional Court, one detects a greater reluctance by the judges of the

Court to grant the applications of the Federal Government to ban such

parties.

While the decisions of the Constitutional Court have often been

justified on various and oftentimes differing reasons from one another, we

will see in further detail below that what ties these decisions together is

the increasing distrust of the Constitutional Court towards the scope and

powers of Article 21.

A. The Radical Groups Case

In 1975 and 1976, three radical left-wing parties were denied campaign

broadcasting time by various radio and television stations in three German

states. The actions of the radio and television stations were upheld by

lower administrative courts, prompting the three parties to file a

constitutional complaint alleging that their rights as political parties under

ibid 13.

The European Court of Human Rights initially followed the Federal Constitutional

Court’s lead in endorsing restrictions on the activities and the freedom of expression of the

KPD but has subsequently adopted a more tolerant approach. For an illustration of the shift

in the ECtHR’s stance, see the contrasting cases of Glasenapp v Germany (1987) 9 EHRR 25

and Vogt v Germany (1996) 21 EHRR 205.

The influence of the case law of the European Court of Human Rights was acknowledged

by the Federal Constitutional Court in its ruling against permitting a banning application

against the NPD; see BVerfGE 2 BvB 1/13 (n 5) at § 510.

[2018] Reflections on Militant Democracy in Germany 143

the Basic Law had been infringed.

As Donald Kommers and Russell

Miller have shown, the Constitutional Court allowed the complaint by

distinguishing between an organisation’s status as a political party and its

potential proscription as an unconstitutional party under Article 21. In the

opinion of the court, the fact that ‘the complainants were possibly engaged

in pursuing unconstitutional goals, especially the abolition of the

parliamentary system, does not strip them of their character as political

parties.’

Whether a political party was indeed of a constitutional or an

unconstitutional nature was to be determined differently from its status as

a political party under the Basic Law.

The Radical Groups Case might be technically correct on a very strict

construction of Article 21. It is, however, problematic insofar as it marks a

departure from the low threshold employed by the Constitutional Court

when adjudicating on the applications to ban the SRP and the KPD. The

Constitutional Court appeared to suggest that only once a party was

declared unconstitutional could it then be deemed to have forfeited the

rights and privileges bestowed upon it by the Basic Law. Yet one wonders

why the Constitutional Court did not take it upon itself to canvass the

question as to the constitutionality of the three left-wing parties since that

was the underlying argument that the respondent public bodies relied on

in the proceedings. Perhaps it was because that was not the specific focus

of the proceedings before the Constitutional Court (unlike the SRP and the

KPD cases) but nevertheless, the Constitutional Court made clear its

intention to prioritise the equal opportunity of political parties to

participate in the electoral process over any questions of constitutionality.

B. The Republikaner Party

In the aftermath of German reunification in the 1990s, Germany found

itself confronting a disturbing rise in right-wing extremist activities as

well as increasing electoral support for right-wing extremist

organisations.

Amidst this groundswell of support for the extreme Right,

the Federal Office for the Protection of the Constitution (BfV) and the State

Offices for the Protection of the Constitution (the Länder

or state-level

47 BVerfGE 198 (Radical Groups Case).

Kommers and Miller (n 16) 292-293.

ibid.

Wise (n 14) 338-339.

The BfV is the national agency responsible for domestic security matters in Germany,

much like the Garda Crime and Security Branch of Ireland. However, as Germany is a

federal republic, each of the German states (collectively known as the Länder) have their

144 Trinity College Law Review [Vol 21]

equivalent of the BfV) agreed to begin surveillance and collect

information

on the Republikaner party (REP), a right-wing nationalist

conservative party that had been established in 1983.

While the Republikaner party had sought to portray itself as

committed to the constitutional principles of the Basic Law, it appears that

studies of the party at that time suggest that it retained close ties with

other extreme right-wing forces in Germany and that it professed certain

xenophobic and racist beliefs,

considerations which no doubt influenced

the Federal Office’s decision to begin surveillance of the party. Yet no

sooner was this decision made than did the party seek out temporary

injunctions in the various German states prohibiting the use of state-

sanctioned surveillance against the Republikaner party.

Although most of the administrative courts of the various Länder

rejected the Republikaner party’s applications,

one notable exception was

Lower Saxony where the Lower Administrative Court granted the

Republikaner party a temporary injunction,

followed by a permanent

injunction,

against surveillance by the Lower Saxon State Office for the

Protection of the Constitution. Curiously, the Court based its decision on

the existing jurisprudence of the Federal Constitutional Court from the

KPD case,

which it applied in its interpretation of the Lower Saxon

statute that regulated the ability of the State Office to collect intelligence

and conduct surveillance. On that basis, the Lower Saxon Court concluded

that the Republikaner party, while prone to expressions of objectionable

values, had not been shown to be actively seeking to overthrow the

constitutional order. While the Republikaner party ultimately opted

against pursuing the matter further in the Federal Constitutional Court, it

is evident from the decision in the Lower Saxon courts that a judicial

precedent regarding the strict reading of constitutional protection laws

own respective State Offices for the Protection of the Constitution which enjoy

considerable independence from the Federal Government.

The establishment of the BfV and its state-level equivalents as well as the regulation of

its methods are governed by the 1950 Federal Constitution Protection Law

(Bundesverfassungsschutzgesetz, BVerfSchG).

Thomas Saalfeld, ‘The Politics of National-Populism: Ideology and Policies of the German

Republikaner Party’ (1993) 2(2) German Politics 177.

For a more detailed account, see Gillian More, ‘Undercover Surveillance of the

Republikaner Party: Protecting a Militant Democracy or Discrediting a Political Rival?’

(1994) 3(2) German Politics 284.

ibid 289-290.

Decision of 8 February 1993, Az 10 B 5545/92.

Decision of 29 November 1993, Az 10 A 1051/93.

5 BVerfGE 85.

[2018] Reflections on Militant Democracy in Germany 145

had already been set in place by the 1990s which would ultimately

foreshadow the Constitutional Court’s own decision regarding the NPD.

IV. The NPD Cases: A Spanner in the Works

As has been previously illustrated, the Federal Constitutional Court

initially set a low threshold for determining whether a political party could

be construed as unconstitutional and thus dissolved parties when it first

had to consider these issues in the 1950s. The judicial test then centred on

whether a political party rejected the free democratic constitutional order

and was actively engaged in attempting to overturn that order. It did not

seem to matter to the Constitutional Court that the political party in

question was in fact capable of achieving those goals.

Notwithstanding this liberal threshold, the Constitutional Court has

since displayed considerable reluctance in employing that yardstick in

favour of finding various political parties unconstitutional under Article

21. Similarly, in the case of the Republikaner party, the German courts as

a whole appear to have differed in their applications of the

unconstitutionality test even though they have all relied on the existing

jurisprudence of the Federal Constitutional Court, demonstrating a lack of

consensus as to the proper scope of the tests for unconstitutional

organisations and unconstitutional activity.

This gradual turnaround in the approach of the German courts

towards dealing with alleged extremist political parties has been

confirmed in the recent ban proceedings against the NPD.

Since its

formation in 1964, there has never been much doubt as to the anti-

democratic and extremist nature of the NPD. The BfV considers the NPD

The Free German Workers Party (FAP) has not been included in this discussion because,

while the organisation was the subject of a ban application by the Federal Government, the

Federal Constitutional Court ruled that the FAP was neither a political party under the

Basic Law nor under the definition in the Law on Political Parties but rather, was a political

association. The distinction made by the Court in this instance only serves to underscore

the additional legal safeguards and protections that political parties enjoy in Germany, a

distinction that we will return to in the latter part of this paper. See ‘Announcement of the

Press Office of the Federal Constitutional Court’, Nr.13/952; see also Wise (n 14) 340 for the

original German text and its English translation.

Melissa Eddy, ‘German Court Rejects Effort to Ban Neo-Nazi Party’ The New York Times

(17 January 2017)

right.html> accessed 20 December 2017. See also Alexander Pirang, ‘Renaissance of the

Militant Democracy?’ (Lawfare, 27 March 2017)

militant-democracy> accessed 20 December 2017.

146 Trinity College Law Review [Vol 21]

to be a right-wing extremist political party

which is committed to the

abolition of parliamentary democracy in Germany and which has

regularly maintained an official platform of German ultra-nationalism,

racism, and anti-Semitism. The party has a clear ideological affiliation with

the former NSDAP. Nevertheless, the NPD has only had marginal success

in the federal elections

and has only managed to win a handful of seats

in the regional parliaments of the German Länder.

The first attempt to ban the NPD came in 2003 when, in the midst of

what was termed the ‘Aufstand der Anstndigen’

(‘uprising of the

decent’), the Federal Government, together with the Bundestag and the

Bundesrat, jointly submitted an application to the Federal Constitutional

Court to have the NPD declared unconstitutional and dissolved. However,

the proceedings ultimately collapsed before the scheduled oral hearings

were to take place when the Federal Constitutional Court discovered that

several members of the NPD, including high-ranking leaders, were

working as informants for the domestic intelligence services prior to and

during the banning proceedings.

In view of this revelation, the

Constitutional Court found itself compelled to discontinue the proceedings

because of the apparent procedural unfairness caused by having state

informants and agents within the NPD’s leadership, ostensibly allowing

the State to influence the activities of the party.

‘What is right-wing extremism?’ (Bundesamt für Verfassungsschutz)

of-work/right-wing-extremism/what-is-right-

wing-extremism> accessed 20 December 2017; see also ‘Verfassungsschutzbericht 2016’

(Bundesamt für Verfassungsschutz)

2016.pdf> accessed 20 December 2017.

The NPD has only averaged fewer than 2% of the total vote in the federal elections since

its inception.

The NPD’s last electoral success came in the 2009 Saxony state elections when the party

managed to win eight seats in the state legislature. However, at the time this article was

written, the NPD has since lost all of its seats in the various German states and is no longer

represented at the state or federal level.

‘Germany moves to ban far-right party’ BBC News (26 October 2000)

accessed 21 December 2017.

Alexander Haneback, ‘FCC Suspends Hearing in NPD Party Ban Case’ (2002) 3,2 German

Law Journal

71e2/1454994417445/GLJ_Vol_03_No_02_Hanebeck.pdf> accessed 20 December 2017, para

7; Thilo Rensmann, ‘Procedural Fairness in a Militant Democracy: The “Uprising of the

Decent” Fails Before the Federal Constitutional Court’ (2003) 4,11 German Law Journal

1117.

Bundesverfassungsgericht (BVerfG), Decision of the Second Senate of 18 March 2003, 2

BvB1/01, 2/01, 3/01 at §§ 64-116, available at

http://www.bverfg.de/entscheidungen/bs20030318_2bvb000101.html.

[2018] Reflections on Militant Democracy in Germany 147

The second attempt came in 2016 when the Bundesrat requested that

the Federal Constitutional Court ban the NPD on largely the same grounds

as the first attempt.

However, this time, there were to be no procedural

impediments to the proceedings as the Constitutional Court found that the

evidence now relied on by the applicants had not been tainted and that

government informants in the NPD’s leadership had long since been

deactivated prior to the commencement of proceedings.

Notwithstanding this finding, on 17 January 2017, the Federal

Constitutional Court rejected the application to ban the NPD.

The judgment of the Federal Constitutional Court warrants

considerable scrutiny given the implications of its decision. The Court

began by reiterating its position that strict procedural fairness necessary

for the conducting of a fair trial was indispensable in proceedings to ban a

political party,

given that the provisions of Article 21.2 constitute a

significant infringement of the right to freedom of association.

It further

reiterated the longstanding precedent that a political party would be

deemed unconstitutional if its programme seeks to abolish or undermine

the free democratic order.

As to what constitutes ‘seeking’ to abolish or

undermine the free democratic order, the Court held that:

in accordance with the exceptional character of the prohibition of a

political party as the preventive prohibition of an organisation and

not a mere prohibition of views or of an ideology, there can,

however, be a presumption that the criterion of ‘seeking’ has been

met only if there are specific weighty indications suggesting that it

is at least possible that a political party’s actions directed against the

goods protected under Art 21(2) GG may succeed (potentiality).

The Court next moved on to consider the alternative, where a party might

not be in a position to achieve its stated goals:

conversely, if it is entirely unlikely that a party’s actions will

successfully contribute to achieving the party’s anti-constitutional

‘Germany's Federal Constitutional Court opens case against NPD’ Deutsche Welle (7

December 2015) accessed 22 December 2017.

BVerfGE 2 BvB 1/13 (n 5) at §§ 428-433.

ibid § 633.

ibid § 417.

ibid § 523.

ibid § 548.

ibid § 585.

148 Trinity College Law Review [Vol 21]

aims, there is no need for preventive protection of the Constitution

by using the instrument of the prohibition of the political party,

which is the sharpest weapon, albeit a double-edged one, a

democratic state under the rule of law has against its organised

enemies (cf BVerfGE 107, 339). On the contrary, the prohibition of a

political party may be considered only if the political party has

sufficient means to exert influence due to which it does not appear to

be entirely unlikely that the party will succeed in achieving its anti-

constitutional aims, and if it actually makes use of its means to exert

influence. If this is not the case, then the requirement of ‘seeking’ within

the meaning of Art 21(2) GG is not met.

This marks a complete departure from the earlier precedent laid down in

the KPD case. Indeed, the Court next went on to declare itself unwilling to

concur with the reasoning in that particular decision.

Having expressed what it considered to be the proper standard for

ascertaining the unconstitutionality of a political party, the Federal

Constitutional Court proceeded to address the present case. And on the

facts before it, the court concluded that the NPD ‘disrespects the

fundamental principles which are indispensable for the free democratic

constitutional state’

but declined to rule in favour of a ban as ‘[t]here are

no sufficiently weighty indications suggesting that [the NPD] will succeed

in achieving its anti-constitutional aims.’

This finding was made in due

consideration of the fact that the NPD, in its five decades of existence, had

consistently failed to establish itself permanently as a political force on the

federal level. Furthermore, at the time of ban proceedings against the

party, the NPD was already suffering from further declining electoral

returns and a haemorrhaging of popular support from the party to other

right-wing alternatives such as the AfD.

The consequence of the Constitutional Court’s decision of 17

January 2017 is that the threshold for banning a political party under

Article 21 has been raised considerably. No doubt this will further

complicate efforts by the federal executive and other constitutional organs

in Germany to clamp down on organised political extremism in the near

ibid § 586 (emphasis added).

ibid.

ibid § 634.

ibid § 896.

Jefferson Chase, ‘AfD: What you need to know about Germany's far-right party’ Deutsche

Welle (24 September 2017) to-know-about-

germanys-far-right-party/a-37208199> accessed 24 December 2017.

[2018] Reflections on Militant Democracy in Germany 149

future, given that there is now an additional requirement of ‘potentiality’

for the political party to fulfil its anti-constitutional aims. More

fundamentally, it is submitted that the Constitutional Court’s judgment

marks a severe erosion in the efficacy of militant democracy in Germany.

Recall that the Basic Law had been formulated precisely to pre-empt the

same set of legal and political problems that the Weimar Republic

confronted during its existence: the spectre of organised anti-democratic

forces relying on democratic and legal means to capture the State for the

purpose of doing away with these democratic institutions. Nevertheless,

the framers of the Basic Law were also mindful of the need to balance

concerns of political extremism against the protection of the fundamental

rights and liberties of citizens, which is why the party ban process was

placed under the jurisdiction of the Federal Constitutional Court.

Given

that court proceedings of such a constitutional nature are often lengthy

and cumbersome affairs, there remains the ever-present risk that the

political landscape might evolve far quicker than the courts can effectively

respond to. A stricter legal test that imposes a greater standard of proof on

the State only serves to render the State’s ability to defend itself ever more

cumbersome.

At first glance, these new developments by themselves do not appear

to pose any real and serious difficulties for the State. As long as moderate,

democratic forces continue to exercise the reins of power in Germany and

hold majorities in the federal and state legislative bodies, a repeat of the

Weimar experience seems to be unlikely. As for the NPD itself, there is no

indication whatsoever that it will be able to reverse the current decline in

its fortunes. The party appears likely to be consigned to electoral oblivion.

The problem only becomes more acute when one factors in the rise of the

AfD and the dangers posed by the newfound model of right-wing

populism that the AfD espouses.

V. Germany’s Tea Party: The Alternative for Germany

So far, this article has covered political parties in Germany whose

programmes and ideological content would normally situate them in the

category of traditional extremist right-wing or left-wing parties, thereby

placing them within the scope of Article 21, with the exception of the

Republikaner party. In the SRP and KPD cases, the respondent parties

concerned were the archetypal examples of political parties that clearly

sought the abolition or undermining of the free democratic order in

GG (n 6) Article 21(3).

150 Trinity College Law Review [Vol 21]

Germany. Even the NPD, which managed to avoid being banned by the

Constitutional Court, was held by the Court to be intrinsically opposed to

the free democratic order.

The AfD, however, represents something of an anomaly that

militant democracy appears ill-equipped to handle. The party’s remarkable

success, when it appeared to be on the verge of splitting apart from

fractional infighting only two years ago,

is in no small part due to the

party having embraced a hard-line anti-immigrant and anti-refugee

position that it has skilfully combined with its existing economically

liberal and socially conservative platform. While it is not the purpose of

this paper to embark on a definitional exercise regarding the classification

of the AfD, a preliminary identification of the party’s position on the

political spectrum is necessary when discussing the constitutionality of

the party’s programme. To that end, for the purposes of this discussion, I

shall refer to the AfD as a right-wing populist party since the salient

features of its agenda correspond most closely to traditional aspects of

right-wing and populist ideology.

A. Is the AfD an Unconstitutional Party?

As highlighted above, militant democracy in Germany had traditionally

been conceived as a means of allowing the free democratic order to combat

organised political extremism through legal means. In this paradigm, the

enemies of the free democratic order were traditionally those that

belonged to the extreme fringes of the political spectrum, chiefly the

‘totalitarian’ ideologies of National Socialism and Communism. There is

no real doubt that these political ideologies are inimically opposed to

liberal democracy and thus fall squarely within the category of

democracy’s enemies. However, with the present strand of right-wing

populism that the AfD embodies, which is shared by numerous other

populist parties across Europe such as the Front National and Danish

People’s Party, the question as to whether such attitudes contravene the

Basic Law becomes much more difficult to answer.

For a start, the AfD’s position is distinguishable from that of the NPD

or even the former SRP and KPD in that it does not officially propose the

abolition or removal of the parliamentary democratic system currently in

place. A cursory glance at the party’s manifesto indicates that the AfD

‘Germany’s euroskeptic AfD party seeks to heal deep rifts’ Deutsche Welle (4 July 2015)

to-heal-deep-rifts/a-

18561343> accessed 28 December 2017.

[2018] Reflections on Militant Democracy in Germany 151

wishes to introduce direct referenda based on the so-called ‘Swiss Model’

as well as other constitutional changes to existing laws governing political

parties and campaign finance.

Yet none of these necessarily amount to

abolition of the existing constitutional system.

A stronger case could be made that the AfD’s programme violates

the Basic Law based on its provisions which are opposed to the

propagation of Islam in Germany.

The AfD has also called for the

deportation of imams who engage in ‘anti-constitutional agitation’,

the

banning of the construction of minarets

and the wearing of the burqa

and niqab by Muslim women.

These could arguably contravene Articles

1, 3, 4 and 5 of the Basic Law which deal with the fundamental liberties

and rights of persons, thereby amounting to a violation of the free

democratic basic order as defined in the SRP case.

The AfD’s stance on

the European Union and its opposition towards further European

integration might run afoul of Article 23, which pledges Germany to

contribute to the development of the EU.

However, it is unlikely that these aspects of the AfD’s ideology,

taken as a whole, evince a concerted effort to challenge the existing

constitutional order within the parameters of the framework established

by the Constitutional Court. In the event that the court is called upon to

rule upon the constitutionality and banning of the AfD, the end result will

most likely be similar to that of the Republikaner party, where the

administrative courts in Lower Saxony argued that that party’s

programme, while morally questionable, did not constitute

unconstitutional activity.

It is very likely that the Federal Constitutional

Court will reach a similar conclusion and will rule against any such ban

application. Even if a case could be made that the AfD is an

unconstitutional party under Article 21, political realities might

Alternative for Germany, ‘Manifesto for Germany: The Political Programme of the

Alternative for Germany’ (Alternative für Deutschland)

content/uploads/sites/111/2017/04/2017-04-12_afd-grundsatzprogramm-englisch_web.pdf>

accessed 21 December 2017, 8.

ibid 10.

See BVerfGE 2 BvB 1/13 (n 5) § 543 where the Federal Constitutional Court held that the

replacement of the parliamentary democratic system with a plebiscitary one would not

violate the free democratic basic order.

Alternative for Germany (n 64) 48-49.

ibid.

2 BVerfGE 1 (n 16) 12-13.

Az 10 A 1051/93 (n 40) 18.

152 Trinity College Law Review [Vol 21]

discourage the Federal Government from bringing an application to the

Constitutional Court to ban the party. Any such attempts at doing so

would only lend greater credence to the AfD’s ‘anti-establishment’

credentials and could even lead to charges that the CDU/CSU is exploiting

Article 21 to get rid of a political rival. Another failed application, coming

after the debacle of the second NPD case, would backfire spectacularly

against Chancellor Merkel’s government. It appears, therefore, that the

AfD is here to stay.

B. Comparative Experiences across Europe

The above discussions only serve to highlight the dilemma that militant

democracies must grapple with as they struggle to deal with the onset of

right-wing populism in Europe. Austria has long employed constitutional

laws in the form of the National Socialism Prohibition Act 1947

to outlaw

the Nazi Party and its affiliated organisations as well as to prohibit any

attempts at reviving or reorganising these organisations. In 1988, the

Austrian Constitutional Court outlawed the far-right National Democratic

Party on the basis that it contravened the National Socialism Prohibition

Act 1947 and Article 9

of the Austrian State Treaty.

Yet this victory for

Austria’s militant democracy came amidst the electoral rise of the right-

wing Freedom Party of Austria (FPÖ). In a manner that closely mirrors the

approach by the AfD, the FPÖ’s skilful blend of right-wing national

conservatism and populism, while carefully crafting a public image of

respectability, has reaped sufficient dividends by allowing the party to

enter into a coalition government

with the liberal Austrian People's Party

(ÖVP) notwithstanding its avowed hostility towards Islam and

immigration. One might be forgiven for thinking that militant democracy

in Austria has been effectively stymied with the normalisation and

legitimisation of the FPÖ.

The case of Hungary is also illustrative. Although the Hungarian

courts have not shied away from banning associations and groups, such as

the Hungarian Guard Movement, whose activities constitute a violation of

National Socialism Prohibition Act 1947 (Verbotsgesetz 1947, VerbotsG).

Article 9 (‘Dissolution of Nazi Organisations’) of the Austrian State Treaty mandates the

dissolution of the National Socialist party and its affiliated organisations while requiring

the Austrian state to take all steps to prevent any resurgence or revival of Nazism.

VfGH-Erkenntnis 25.06.1988 B 999/87.

‘Austrian far-right joins coalition led by PM Sebastian Kurz’ BBC News(16 December

2017) accessed 6 February 2018.

[2018] Reflections on Militant Democracy in Germany 153

human dignity

and include incitements to violence and/or hateful

rhetoric,

the position of the Hungarian authorities with regards to

political parties is less certain. No Hungarian Government has taken steps

to outlaw a political party thus far, which has arguably facilitated the

electoral rise of the far-right political party Jobbik, the Movement for a

better Hungary. While Jobbik has traditionally been characterised as a far-

right political party and has been notorious for expressing anti-Semitic

and anti-Roma tendencies in the past, the party’s leaders have been at

pains now to jettison such positions in a bid to clean up the party’s

image.

The result of this campaign of normalisation has been to elevate

Jobbik to the third-largest party in the Hungarian National Assembly, even

though the party retains its right-wing and populist appeal.

As the case-studies of Austria and Hungary have demonstrated,

many parties that espouse right-wing populism do not explicitly nor

officially call for the abolition of liberal democracy. They profess a strict

adherence to the rule of law and compliance with the existing

constitutional system. With regards to the issues of minority rights and

immigration, they have striven to carefully regulate the language and

terminology that they employ, refraining from the overt racist sentiments

employed by previous extremist groups while appearing to permit

individual members to make the odd slip or inflammatory comment as part

of a deliberate strategy of pushing the boundaries of acceptable speech.

And while some of these right-wing populist parties appear to officially

eschew any association with the more radical far-right, individual leaders,

such as the AfD’s Bjrn Hcke, have often cultivated or maintained ties to

Vona v Hungary [2013] ECHR 653, [13].

The Hungarian Guard Movement (Magyar Gárda Mozgalom) was an association

established by the Hungarian Guard Association which was itself formed by members of

the political party Jobbik. The Magyar Gárda’s objective was defined as ‘defending a

physically, spiritually and intellectually defenceless Hungary’ and the group became

notorious for organising demonstrations against so-called ‘Gypsy criminality’ in Roma-

majority areas. The Budapest Regional Court banned the Magyar Gárda on the basis that its

activities violated the rights of the Roma people. The European Court of Human Rights

upheld the ban in the case of Vona v Hungary [2013] ECHR 653.

Nick Thorpe, ‘Is Hungary’s Jobbik leader really ditching far-right past?’ BBC News (15

November 2016) accessed 6 February

2018.

‘AfD’s Alexander Gauland slammed over “racist” remark aimed at minister’ Deutsche

Welle (29 August 2017)

racist-remark-aimed-at-minister/a-40277497> accessed 30 December 2017; ‘AfD politician

says Germany’s football team “isn’t German”’ Deutsche Welle (3 June 2016)

19305613> accessed 30 December 2017.

154 Trinity College Law Review [Vol 21]

far-right extremist organisations,

which raises the possibility that such

populist groups could serve as vehicles for the extreme right to infiltrate

and further their own respective agendas. This raises the possibility that a

party such as the AfD could potentially sweep into power and then revert

to an even more radical right-wing orientation once it is safely ensconced

within a parliamentary majority, by which time it would be too late for

militant democracy to intervene.

While the majority of this analysis has thus far been confined to the

constitutional practice of militant democracy within states, it is now

intended to discuss the experience of militant democracy at the European

Court of Human Rights (ECtHR). State prohibitions of political parties

have often been challenged by their members at the ECtHR on the grounds

that the proscriptions contravene the rights to freedom of expression and

freedom of association and assembly under Articles 10 and 11

(respectively) of the European Convention on Human Rights (ECHR)

and

also fall within the ambit of Article 17

which prohibits abuses of the

substantive rights enshrined in the ECHR.

In assessing the validity of the

defendant State’s ban of the political party or association, the court has

opted to adopt a strict test of proportionality whereby the State’s

restrictions are measured against its intended aims as well as whether or

not there is a ‘pressing social need’ for these restrictions.

At the same

time, the court appeared to expressly endorse the doctrine of militant

democracy in the case of RefahPartisi (the Welfare Party) v Turkey

on the

basis that:

a state cannot be required to wait, before intervening, until a political

party has seized power and begun to take concrete steps to

implement a policy incompatible with the standards of the

Convention and democracy, even though the danger of that policy

for democracy is sufficiently established and imminent.

Frank Decker, ‘The “Alternative for Germany”: Factors Behind its Emergence and Profile

of a New Right-Wing Populist Party’ (2016) 34(2) German Politics and Society 1, 12.

Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights, as amended) (ECHR) art 10 and 11.

ibid art 17.

For a definitive account of the ECtHR’s role in adjudicating on militant democratic

practices, see Paul Harvey, ‘Militant Democracy and the European Convention on Human

Rights’ (2004) 29(3) EL Rev 407.

ibid 412.

(2003) 37 EHRR 1.

ibid [102].

[2018] Reflections on Militant Democracy in Germany 155

Although the doctrine of militant democracy has arguably found

significant support in Strasbourg, it remains an open question as to

whether the ECtHR’s present approach will have to be modified to address

the emergence of modern right-wing populism in Europe. Much of the

body of the ECtHR’s jurisprudence arose where the banned parties in

question showed a clear affinity for traditional extremist ideologies like

Fascism, Nazism, and Communism

or advocated the use of violence and

support for terrorist groups.

Even in cases such as RefahPartisi, the Court

then was concerned with the normative question as to whether a political

party that was committed to the establishment of a legal regime on Sharia

principles was found to be anti-democratic in nature. Modifying the

ECtHR’s approach to accommodate an emerging strand of right-wing

populism that purports to profess adherence to democratic procedure and

norms while carefully articulating anti-immigrant and even xenophobic

attitudes through respectable language poses conceptual difficulties.

On a more practical level, the Court’s intervention is dependent on

applications by individuals to the ECtHR which in turn are usually only

possible where the judicial bodies of a member State have already

pronounced on the constitutionality of any attempted ban of a political

party. It is only where the highest national court has upheld a party ban

that the ECtHR may consider the case. It is thus submitted that the most

important battleground of militant democracy is before national courts,

and the role played by the ECtHR in shaping the principles of militant

democracy will remain limited.

VI. Rethinking the Bases of Militant Democracy

Given that militant democracy in Germany as it stands now appears

incapable of properly confronting the existential challenge posed by right-

wing populism, a deeper re-examination of the fundamental tenets and

principles of militant democracy is in order if militant democracy is to

remain relevant.

As stated previously, the traditional jurisprudence behind the

German model of militant democracy was centred on ‘anti-extremism’,

chiefly the need to safeguard a free, democratic order, both in terms of the

formal and procedural parliamentary democratic character of the Federal

Republic as well as the substantive nature of that free democratic order

Harvey (n 84) 413-416.

See HerriBatasuna and Batasuna v Spain, application nos 25803/04 and 25817/04 (ECtHR,

30 June 2009).

156 Trinity College Law Review [Vol 21]

(protection of basic rights and unfettered political participation in a

democratic system) from those who wished to do away with said order. In

this, Gregory Fox and Georg Nolte have referred to the German model as

a ‘militant substantive democracy’,

a classification adopted and modified

by Angela Bourne’s description of Germany as an ‘active’ and intolerant,

substantive democracy that frowns upon anti-system ideology and

behaviour by political parties.

These approaches have tended to focus mainly on conceptual and

descriptive analyses of the German constitutional system. Gur Bligh’s

concept of the ‘Weimar paradigm’ versus the ‘legitimacy paradigm’

provides a useful starting-point for a new theory of how militant

democracy ought to function.

Bligh argues that the ‘Weimar paradigm’,

which was essentially meant to guard against the repetition of a Weimar-

type scenario of political parties overthrowing the democratic order

through democratic practices, has become increasingly incapable of

dealing with those parties that are not necessarily anti-democratic per se

but only oppose certain elements of the free democratic order.

To that

end, he proposes the ‘legitimacy paradigm’ as a way of justifying militant

democracy while also dealing with this new category of political parties.

The ‘legitimacy paradigm’ differs from the earlier approach in that it

‘focuses on the legitimising effects of participation in the electoral arena

and deems the denial of such legitimacy as the central purpose of the

banning phenomenon.’

This approach recognises the greater role that

political parties have assumed as a ‘public good and contributor to the state

because they promote its fundamental democratic characteristics and

goals.’

There is thus an added obligation upon political parties to

contribute to a political culture of civic and political equality.

Failure to

conform to such an obligation may warrant a ban.

Bligh further suggests that the ‘legitimacy paradigm’ should contain

a higher evidentiary standard of proof

while the actual effects of the

party ban should be moderated towards a denial of the party’s access to

Gregory Fox and Georg Nolte, ‘Intolerant Democracies’ (1995) 36 Harv Int’l L J 1, 32.

Angela Bourne, ‘The Proscription of Political Parties and “Militant Democracy”’ (2012) 7

JCL 196, 211.

Gur Bligh, ‘Defending Democracy: A New Understanding of the Party-Banning

Phenomenon’ (2013) 46 Vand J Transnat’l L 1321.

ibid 1337-1358.

ibid 1358.

ibid.

ibid 1367-1368.

ibid 1368.

ibid 1373-1374.

[2018] Reflections on Militant Democracy in Germany 157

legitimate platforms of expression rather than an outright ban.

To that

end, Bligh suggests that the examples of Belgium, which denies state

subsidies to political parties opposed to the rights and freedoms enshrined

in the European Convention on Human Rights, and Israel, which

disqualifies a party from competing in elections, provide useful templates

to follow.

The ‘legitimacy paradigm’ is better capable of complementing the

new developments in German constitutional jurisprudence and better

matches the current reality of German politics. Ardently anti-democratic

parties such as the NPD stand no realistic chance of scoring the same

electoral successes as the AfD. On the other hand, as the AfD attempts to

present an acceptable face of right-wing and nativist populism that is

nevertheless discriminatory in its content, the ‘legitimacy paradigm’

provides militant democracy with the suitable intellectual justifications to

mount a defence against such populist trends.

As for possible concrete solutions, it is submitted that as the use of

Article 21 becomes increasingly restrained and regulated by the Federal

Constitutional Court, the Federal Government could find itself relying

more heavily on criminal sanctions against the more extreme and

outspoken leaders who might engage in hateful or racist speech.

100

Alternatively, the State may turn to Article 18 which allows for the

forfeiture of the basic rights of individuals themselves as opposed to

political organisations should these individuals abuse their basic rights.

101

Yet even the application of such measures must be handled carefully if

only to avoid penalising legitimate debate and eroding democratic

freedoms in the name of protecting democracy.

Conclusion

Since 1949, an unmistakable pattern has emerged in German legal history

which points towards a gradual tightening of the criteria and applicability

of militant democracy initially laid down in the Federal Constitutional

Court’s rulings on the constitutionality of a political party.

It is unfortunate that this gradual but seismic development in the

jurisprudence of the Constitutional Court should occur amidst the rise of

ibid 1375-1377.

100

The most common example is the concept of ‘Volksverhetzung’ enclosed in § 130,

Section 1 of the German Criminal Code (Strafgesetzbuch, StGB).

101

However, to date, there has been no such case where article 18 was successfully invoked

by the Federal Government.

158 Trinity College Law Review [Vol 21]

a new brand of political populism that has the potential to undermine the

basic rights of certain minority groups in Germany, thereby hindering the

ability of the State to respond more effectively to any possible threats to

the free democratic basic order. One can safely assume that the framers of

the Basic Law did not intend for such a strict watering-down of Article 21

and militant democracy. For now, short of any further radicalisation of the

AfD, the Federal Government and the other major political parties in

Germany will have to accept that the AfD has become a permanent feature

of Germany’s political landscape. How best to accommodate the party

without necessarily legitimising some of the AfD’s more questionable

views will constitute a great legal-political challenge for Germany in the

years to come.

To continue reading

Request your trial

Subscribers can access the reported version of this case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a list of all the cited cases and legislation of a document.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a list of all the documents that have cited the case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the revised versions of legislation with amendments.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see any amendments made to the case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

The Centre Cannot Hold: Reflections on Militant Democracy in Germany

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users