Justifying Militant Democracy: Philosophical and Legal Reflections on Dutch Militant Democracy

Abstract

The rise of right-wing populist parties in Europe on the one hand and Muslim fundamentalists on the other requires governments to reflect on the issue of how to deal with extremist organizations and movements whose ideas or ideologies are diametrically opposed to fundamental democratic principles and the rule of law. In a case study of Dutch militant democracy, two issues are explored: how can banning an antidemocratic party be justified and what is the present legal regime regarding the banning of parties in the Netherlands? It is argued that Gustav Radbruch’s legal philosophy may provide a convincing political-philosophical justification for a party ban. Subsequently, it is defended that, on the basis of current Dutch law, not only antidemocratic parties may be banned, but also those which oppose the rule of law. In that respect, the Dutch legal order is, contrary to how it is often characterized, based on a conception of a substantive, and not so much a procedural, democracy.