Rosenblum on Banning Parties

by Henry on January 14, 2009

I mentioned last week that I’m reading Nancy Rosenblum’s On the Side of the Angels: An Appreciation of Parties and Partisanship (Powells, Amazon). The final chapter, “Banning Parties,” has a valuable discussion of the normative implications of party bans, which speaks extensively to the Israeli example.

First, contra arguments such as those contained in this typically disingenuous post by Jamie Kirchik, it draws a clear distinction between banning hate parties (which Rosenblum argues is, within certain limits, a reasonable form of democratic self-defence) and banning parties that are threats to national identity (which Rosenblum argues is not a form of democratic self-defense). Rosenblum speaks to the rationale for Israel’s ban on the Kach party, which called for the forced ‘transfer’ of Arab ‘cockroaches’ from Israel, and sought to ban Arab-Jewish intermarriage.

Rosenblum argues (p.436) that:

“Inciting hate” can be compassed within the parameters of democratic self-defense by connecting it to violence, to policies that deny civil and political rights to hated groups, or to the corruption of democratic dispositions. But when partisan appeals to religion and ethnicity do not entail hate speech, when proscription extends to any electoral appeal for or against parties on the basis of ascriptive characteristics, militant democracy fails to capture the stakes or the justification for banning.

In contrast, Rosenblum argues that the threat of existential danger to the state’s identity is not sufficient to ban a party under theories of democratic self-defence. Again, she draws heavily on the Israel example, examining previous bans on Arab parties that espoused pan-Arab nationalism and hence implicitly threatened the Jewish character of Israel, and the Arab-Jewish ‘Progressive List For Peace’ which escaped being banned by the Israeli supreme court under a 3-2 decision, because its arguments that Israel should become a binational ‘state of all its citizens’ didn’t amount to an unambiguous program and hence was not as threatening. As Rosenblum puts it (p.447):

My point is that existential justifications for banning parties are an independent standard and cannot be assimilated to democratic self-protection. Attempts to justify banning parties by arguing that a majority group has a right to self-determination do not hold up. It may be that a democratic majority or coalition elects to protect essentialist characteristics such as Israel’s identity as a Jewish state. But it does so democratically only when it is the result of democratic decisions and not by banning parties that challenge it. There may be good moral and political reasons to defend the Jewish character of Israel even at the expense of the fundamental right to political participation by parties whose goal is a multinational or purely secular state. The preservation of national identity may take priority over liberal or democratic elements. But to cast defense of identity or integrity as democratic self-defense regardless of its costs to democratic participation is sheer confusion. (my italics)

As best as I can interpret her (I may be mistaken), Rosenblum is herself deeply skeptical about the proposition that state identity should trump democracy. She argues earlier (p.440) that

Defending the identity of the state against parties that would alter it is an invitation to discrimination and exclusion. For one thing, the status quo is the baseline, precisely what parties organize to contest publicly. Preservation conflicts with interpretation and reinterpretation of political identity as part of the business of democracy.

But even if one interprets her conclusions as generously (to those who would like to ban parties that advocate for changes in the identity of the state) as possible, they’re pretty unambigous (and in my view hard to argue with). There is a genuine difference between parties that are directly promoting hate and denial of civil rights, and parties that are advocating for major changes in the character of the state. Banning the former may, under certain conditions and assumptions, strengthen democracy. Banning the latter weakens it, potentially in very serious ways.

[As an experiment, I’m opening this up to comments – but comments that don’t in my (doubtless partial view) seek to persuade and convince but instead to reiterate set positions about the evils or awesomeness of Israel/Israeli Arabs/Palestinians will be deleted, and if the discussion seems to me to be getting out of hand, I’ll close it]

{ 37 comments }

1

Adam Kotsko 01.14.09 at 7:07 pm

What would Rosenblum say about the possibility of banning the Republican Party in the US?

2

Doctor Science 01.14.09 at 7:14 pm

Adam, by the time a party has the loyalty of 40% of the voters, it’s too late to ban it. In practice, you can only ban parties that have well under 20% of the voters. Fortunately, nascent parties tend to have few articulated principles but strong ones, so it’s easier to identify the truly toxic ones.

3

Righteous Bubba 01.14.09 at 7:27 pm

There is a genuine difference between parties that are directly promoting hate and denial of civil rights, and parties that are advocating for major changes in the character of the state.

Might the former not be dealt with as a matter law dealing with individuals rather than party bans? Uttering a threat is a criminal offense in most places, and if so-and-so of such-and-such party wants to destroy cockroaches of whatever race perhaps he should be arrested.

4

Evan 01.14.09 at 7:53 pm

So even if the political party in question was inciting racism/violence/hatred/dissolution-of-the-state, why, from a public relations standpoint, should the party be banned? Questions of Israel’s right to exist as a Jewish state and proportionate/disproportionate military responses seem to be made without taking into account the public relations angle.

It is not a question of right or wrong, truly democratic or illiberal. It is a question of stated (or unstated goals). What are they? Will stated actions achieve desired goals? Even if Hamas fires rockets at Sderot, and even if Bishara went to Hafez al-Assad’s funeral, would attacking Gaza ruthlessly and banning an Arab-Israeli party that doesn’t completely toe the Israel-is-a-Jewish-state-line be worth it in light of actually achieving goals?

Now, if coexistence and peace are not your stated goals, then that is one thing. But if it is to the safe future where you look, then I don’t see how these means, even if justified, will meet your desired ends.

5

OneEyedMan 01.14.09 at 7:58 pm

Banning parties is a difficult policy to evaluate. You can’t see the counter-factual and you can’t design an experiment. Further, as others have pointed out, you can only pretty much only ban weak parties, so you would have a hard time making the case that crisis was averted when only powerful parties can have a large policy impact.

6

Ben Saunders 01.14.09 at 7:59 pm

I missed your early comment on Rosenblaum; I’d be interested to know what you think of her book generally, because it’s one I’d like to read (not that I’ve thought much about the topic).
FYI, there’s a chapter on political parties in Bob Goodin’s latest book (Innovating Democracy).

7

Matt 01.14.09 at 8:08 pm

While I don’t, in principle, disagree with the line on “hate” parties put forward by Rosenblum, it’s a fine and dangerous line and one open to a lot of abuse. It seems to me, for example, that the banning of the National Bolshevik Party in Russia, supposedly on the grounds of it being an “extremist” group, goes over the line. Now, the NBP has a lot of unsavory members, many of whom are or were nationalists and zenophobs of the sort who have been very dangerous in Russia. But it also seems clear that the reason it was banned was that government officials were pretty scared of it politically. (Rosenblum’s work on political association in her earlier book _Membership and Morals_ is also pretty good on this sort of thing, though it’s a small part of the subject matter of that book.)

8

Righteous Bubba 01.14.09 at 8:14 pm

The Magyar Garda in Hungary swears in another 600 concerned about gypsy crime:

http://english-hungary.blogspot.com/2007/10/made-in-hungary-600-new-guards.html

According to the same blog hate-speech legislation is coming into effect:

http://english-hungary.blogspot.com/2007/10/so-sued-new-hatred-act-granted.html

Presumably the legislation can be used against the Magyar Garda and its backers in the Jobbik party.

9

Righteous Bubba 01.14.09 at 8:15 pm

I see my moderated comment contains fairly old links, so grain of salt etc.

10

Hidari 01.14.09 at 8:16 pm

OK I’ll put my position on the table, if only as a debating point (and, hopefully, an attempt to distract attention away from Israel’s hateful ban on the Arab parties in the forthcoming elections).

My position is that I do not think it is ever justified to ban any political party under any circumstances and that this is the only position that is compatible with genuine democracy.

My first argument for this proposition (and believe me I have many but life is short) is simple: the differences between ‘hate’ parties and ‘national identity’ parties is simply too subjective to produce coherent, replicable ,’objective’ decisions.

Or to put it another way (and again, in a probably vain attempt to move away from the Israel issue) my position is: almost any argument that could be created in favour of the proposition that the Nazi party (of any country) should be banned could also be used against the existence of the Communist party (in a democracy), and has been.

Given that (I hope!) no one will argue that the various communist parties should be banned (and also given that Communists actually run various countries normally termed ‘democratic’ e.g. Cyprus and Nepal) therefore national socialist parties (or the equivalent) should also not be banned.

Jut to be precise, and, unfortunately, to bring the discussion back to Israel, I’m not arguing about whether or not Hamas ‘are’ or ‘are not’ Nazis, let alone whether any of the Israeli Arab parties ‘are’ or ‘are not’ Nazi or fascists parties. What I am claiming is that even if they were that would be no reason to ban them.

Discus.

11

Doctor Science 01.14.09 at 8:50 pm

Hidari:
almost any argument that could be created in favour of the proposition that the Nazi party (of any country) should be banned could also be used against the existence of the Communist party (in a democracy)

Not true, IMHO. The Nazi Party — or the KKK, which at times in the US past has essentially been a political party — could be banned on the grounds that their party platforms advocated the physical removal of certain groups of citizens from the polity. Both groups *said* they were more interested in getting the target groups to leave, but in practice they advocated violent removal “as a lesson”.

As long as the Communist Party in question didn’t have the policy that certain people should be “cleansed” out of the population, it could not rightly be banned.

12

lemuel pitkin 01.14.09 at 8:59 pm

Rosenblum is herself deeply skeptical about the proposition that state identity should trump democracy

I’m not exactly sure what “trump” is doing here, but it seems to me that state identity must be prior to democracy. After all, democracy presupposes a demos, a given political community. So the boundaries of that community have to be drawn based on some other principle, and in that sense, state identity always trumps democray, no?

13

Hidari 01.14.09 at 9:40 pm

‘As long as the Communist Party in question didn’t have the policy that certain people should be “cleansed” out of the population, it could not rightly be banned.’

Did Stalin’s Communist Party not have a de facto policyy that the Kulaks were to be effectively ‘cleansed’ out of the Russian population? And the definition of ‘Kulak’ turned out to be extremely fluid, in practice.

My understanding is also that the Khmer Rouge in Cambodia , as well as having Stalinist policies towards ‘class enemies’, was also racist (against the Vietnamese?) although I could be wrong about this. But if Stalin had lived, it’s possible that after the Doctor’s Plot, the Communist party could have moved toward straightforward anti-semitism. But I would NOT consider this to be a good reason to have banned the Communist Party in 1917 (others might disagree of course).

14

Zack 01.14.09 at 9:55 pm

Doctor Science @11: it seems to me that organizations that regularly commit crimes of violence can and should be dealt with as plain old organized crime rings, whether or not they also engage in political advocacy. (If memory serves this is in fact what was done to suppress the KKK.)

As for whether advocating violence should itself be a crime, the traditional “only if actual violence resulted” and/or “only if a direct incitement to commit a concrete crime right now” rules seem sound enough to me, and I don’t think it should matter whether the advocate is a political party.

15

whomever1 01.14.09 at 11:28 pm

If a party is banned, but you don’t disenfranchise anyone who would have voted for it, then you are just radicalizing the next acceptable party up. Better, in my opinion, to have all the party stances clearly on the table.

16

Bloix 01.14.09 at 11:32 pm

It’s standard for a country to require its elected officials to swear an oath of allegiance. In the UK, MP’s are required to swear an oath of allegiance to the Queen. This means that members of the Sinn Fein party elected to Parliament from Northern Ireland are not seated. In effect, Sinn Fein is banned. The refusal to seat a duly elected Sinn Fein MP who refused the oath was upheld by the European Court of Human Rights. Members of the Scottish National Party who sit in the Scottish Parliament are required to swear the oath of allegiance to the Queen and they grit their teeth and do it.

You can certainly argue thatthe British insistence on the oath of allegiance to the Queen is anti-democratic. I think I would. But do note that you are arguing against the accepted practice of one of the world’s leading democracies as sustained by the world’s premier court of human rights.

17

rb 01.14.09 at 11:36 pm

Nobody dreams of banning the Parti Quebecois in Canada, though their (nominal, traditional) raison d’etre is to be an existential threat. I take it that that’s because we all understand that the only appropriate place for a democracy to draw the line is at threats of violence, not threats to the national essence or identity. If you want your nation to have an immutable essence, best give up on that messy democracy business.

18

Doctor Science 01.14.09 at 11:39 pm

Hidari:

Yes, that’s why I said “the Communist Party in question.” The CP in different countries had — and has — different policies, regardless of what the CP in the Soviet Union (or China) claimed to be the case.

Zack:

I don’t think it should matter whether the advocate is a political party.

The real question is, to what extent do political parties get a “pass” for this kind of talk? In practice, they do.

lemuel:
After all, democracy presupposes a demos, a given political community. So the boundaries of that community have to be drawn based on some other principle, and in that sense, state identity always trumps democray, no?

Only in the sense that “you’re no longer (or never were) a truly democratic state.” Unlike most of the other -cracies, democracy is a theoretical maximum, not a fixed set. Not to mention that the boundaries of most demes are not drawn based on principle at all, but on geography and birth.

19

novakant 01.14.09 at 11:55 pm

There is a genuine difference between parties that are directly promoting hate and denial of civil rights, and parties that are advocating for major changes in the character of the state. (…) Banning the latter weakens it, potentially in very serious ways.

I don’t see how banning for instance the NPD would weaken German democracy (the attempt to do so in 2003 was incompetent and the case was thrown out, but that’s another matter). They certainly are proposing major changes in the character of the German state, e.g. going back to the national boundaries of 1937, kicking all non-Germans out, seceding from NATO and the EU, subordinating the constitution to the “will of the people”, reinstating the death penalty. How exactly would German democracy be weaker if these idiots were deprived of a public platform?

20

Henry 01.15.09 at 12:26 am

novakant – I think that the NPD would indisputably fall under Rosenblum’s advocates of hate who want to deny rights to hated groups etc – “Kein Wahlrecht fur Auslander” and all that.

21

Doctor Science 01.15.09 at 12:39 am

To hone what Henry said, novakant:

The problem with the NPD is not that it wants to change something about “the state”. The problem is eliminationism:

– It is focused on an enemy within, people who constitute entire blocs of the citizen populace, and

–It advocates the excision and extermination, by violent means or civil, of those entire blocs.

I don’t know if Zack thinks eliminationism is within the pale of permissible speech, but I don’t. Its only use IMHO is as a diagnostic warning, not unlike the rattle of the rattlesnake: democracies cannot afford to turn their backs on the eliminationists in their midst.

22

Bloix 01.15.09 at 1:04 am

Canada is an interesting case – it is an extraordinarily weak union for a modern federal state. Parliamentarians are obliged to take an oath of allegiance to “Elizabeth II, Queen of Canada,” not to Canada itself. Because constitutionally the Queen is held to be queen of each province separately, members of the Parti Quebecois can legitimately take the oath even while supporting separation as long as they do not seek to depose the Queen as queen of Quebec. (Presumably once Quebec separated they would be entitled to change their minds and become republicans.)

23

john c. halasz 01.15.09 at 1:15 am

But Hadash wasn’t banned, (bi-national anti- Zionist party rooted in and dominated by the old CP)? At any rate, whatever sort of reactionary political frenzy Israel is in now, ( a sign of the decay of its position, to my mind, however “sucessfully” they manage to impose their regional domination), the obvious effect of such a ban on Arab-based parties is good old-fashioned gerrymandering/ voter suppression, as Arab voters are little likely to vote for any of the remaining parties, as expressing their interests and perspectives, (assuming Hadash already is at the limit of its appeal/vote share), but rather will abstain from and boycott the vote. Just as with increasingly misconceived resorts to violent force, suppression of any expression of opposing perspectives is a sign of waning legitimacy and a corresponding exhaustion of any ability for flexible responses. Perhaps Israel is at long last becoming integrated into the Middle East!

24

christian h. 01.15.09 at 2:16 am

The NPD is an interesting case also because a ban would be utterly pointless. The party would simply be replaced either by itself with a different name (as happened when Germany banned the KPD and SRP in the fifties), or by any other of the numerous Neo-Nazi parties out there.

The value of any ban would be purely symbolic – in essence, a cheap way for the German state to show toughness against the very real dangers of fascist violence. (I’m ignoring the fact that another attempt at a ban would likely lead to a repeat of past performance, revealing that most leading members are, in fact, working for one of the numerous intelligence services…)

25

Doctor Science 01.15.09 at 2:42 am

christian h:

I can see how the whack-a-mole factor would make it seem pointless, but the real purpose is to keep the NPD from consolidating and getting too big. As I said above, once a party gets up well above 10% in support, banning it will do no good and will probably backfire — you’ve already got a dangerously large part of the population that is willing to work against democracy.

My understanding of Israeli party politics is poor, but Hadash sounds to me as though it is *more* democratic and less eliminationist than the mean for Israel. Its problems expose the contradiction between “a Jewish state” and “a democracy” — you can’t have *any* equation between *any* identity (ethnic, gender, linguistic, religious, “racial”) and the state and be a democracy long-term. “You build a democracy with the people you’ve got, not the people you’d let into your club”.

26

Moz 01.15.09 at 3:08 am

Hmm, quick list of anti-democratic problems… rank to your taste. To me, banning a party is both ineffectual and a poor approach. Use bans on hate speech and threats of violence instead, they’re more effective and more justifiable.

- partial franchise (most countries don’t let non-citizen residents vote, and have age-linked restrictions rather than performace-based ones). Israel claims and occupies territory where the residents don’t get to vote, as well as refusing to recognise the elected government of Gaza. Both are bigger problems than banning minor parties.

- gerrymandering, including the UK with 3x the electors in some electorates compared to others. This amounts to a partial franchise – even if you can technically vote, your vote is worth less than your countryman’s because of it.

- lack of proportional representation, including thresholds designed purely to keep minor parties out. No need to ban them, just jigger the system so they can never be elected (UK and US both do this dramatically, Germany and New Zealand less so).

- unelected rulers. The queen less so than the house of lords.

- the cabinet system, and whipping, both of which serve to amplify small minorities into majorities. A cabinet majority inflicts its will on the party which does the same to parliament. Result is 5-6 people “democratically” carrying the country.

- states where the parliament is not the highest power. Thailand, Iraq and Fiji, for example, where “democracy” is imposed at the point of a gun and “wrong” votes are ignored.

- countries where people are banned from office for having wrong views. Or being born in the wrong place. Or having been convicted of a crime.

- countries where any of the above (or other arbitrary items) prevent voting

- countries where parties are banned for having “wrong” views

- criminalising any of the above, or support for (changing) any of them.

That list is not meant to be exhaustive, just to put into perspective the problem with banning parties.

27

Zack 01.15.09 at 3:16 am

I don’t know if Zack thinks eliminationism is within the pale of permissible speech, but I don’t.

It would depend on whether that “advocating the excision and extermination” was the direct cause of actual violence. If it’s all so much hot air, let them go on; that way it’s out in the open where sensible folk can keep an eye on it.

28

Tom T. 01.15.09 at 3:26 am

The Nazi Party—or the KKK, which at times in the US past has essentially been a political party—could be banned on the grounds that their party platforms advocated the physical removal of certain groups of citizens from the polity.

Note that this was Abraham Lincoln’s preferred policy for quite some time, vis-a-vis freed slaves and Liberia.

29

Joe S. 01.15.09 at 3:34 am

I think that too much of this thread assumes a kind of American Constitutionalism, dominated by legal reasoning and the kinds of categorizations that hold up to legal (or political theoretical) analysis. The US is a First Amendment country (both speech and religion): few others are. But this doesn’t mean that free speech or free exercise fare better in the US than in other countries.

I would rather have a polity that instinctively flinches from certain kinds of piggishness and meanness than any principles for banning parties. The principles (unless absolutist) rely on facts; facts are manipulable; courts know this. And even absolutist principles don’t mean all that much. The US First Amendment speech jurisprudence is tolerably absolutist, but Al Jazeera, despite having boatloads of money, has no speech in America.

30

Keir 01.15.09 at 3:46 am

In effect, Sinn Fein is banned.

That’s wrong — Sinn Fein isn’t banned at all; Sinn Fein has a policy of not taking their seats or the oath.

The oath has no actual power, so the point for SF is political. SF still function as a political party elsewhere, as at Stormont.

Labour’s got a bunch of republicans, and they swear the oath; it’s meaningless.

(This is quite important, because some Republican organisations are actually banned in the UK; SF is not one of them.)

31

Dave 01.15.09 at 9:30 am

In a reasonably free society, leaving those terms commonsensical for the moment, banning a specified political organisation is surely fairly futile. Unless you suppress the membership in some fashion – only possible under ‘reasonable freedom’ if you can convict them of actual crimes – there is nothing to stop them re-forming under a different label, changing the wording of their manifesto slightly, and carrying on. Until the next ban, and the next, ad infinitum – at which point it is little more than political theatre at one level, and a deliberate and persistent effort to antagonise the supporters of the parties in question at another – which second element cannot be good for ‘democracy’ per se. Yes, you stop them getting parliamentary representation, which I can understand in the Israeli case, with its absolutist PR system, is important for the advocates of banning, but you build hostility without offering conciliation. Not that that seems to bother many people in that neck of the woods.

32

Ciarán 01.15.09 at 10:08 am

I’m with Keir on Sinn Féin: it’s a bit much to call not taking your seat on this principle an effective ban. But there may be something else important about Sinn Féin. That is, that the long negotiations prior to their signing up to the Mitchell Principles involved in part a two-way negotiation on the limits of acceptability in the UK/NI democratic system.

Maybe bans can sometimes work in the same way. I’m stretching here, and am a total ignoramus so am happy to be told so, but Turkey’s AK Party might have undergone the same journey with the Turkish state’s blockholders, with a party banned then resurrected under a more moderate guise.

I’m not saying it’s a good thing and am certainly not suggesting that that’s what’s going on in Israel, but maybe these are instances of the nutter element in a particular circumstance figuring out, along with the non-nutters, where the bounds of acceptability lie in a particular circumstance. In which case, banning may in some circumstances not be about absolute disenfranchisement.

33

JoB 01.15.09 at 11:31 am

Dave-31,

there is nothing to stop them re-forming under a different label, changing the wording of their manifesto slightly, and carrying on

Nothing unless ‘they’ (as persons) have committed crimes and lost their political rights .

But, more importantly, your nothing is not quite nothing: their wording is the evidence against them so changing it is changing a vital component. This is what in actual fact happened here in Belgium with the extreme right Vlaams Blok &, whatever the merits of the case: the verdict has had real consequences.

Obviously changing the wording is ‘nothing’ in the context of an organization going for violence, but in such cases other elements of the law will kick in (& back to my opening statement).

Thus my question: what else should they change if not their wording?

34

mpowell 01.15.09 at 3:50 pm

I think people are wrong to say that banning a party will have no effect. Membership recruitment will obviously be negatively effected. It’s not as if the population is endowed with a fixed set of unchangeable beliefs. In fact, many members of the population are incredibly uniformed and can potentially be dramatically influenced in their opinion one way or another. You might argue that banning a party may have a reverse impact on it’s popularity, but this is where the need to nip things in the bud comes from. I think that once they get to a certain size, you risk a certain amount of backlash by doing so. When they are just a sliver (5% say), you might do better by shutting down their opportunities for persuasive political speech.

35

Dave 01.16.09 at 8:46 am

@34: Defending democracy, whether the people likes it or not, eh? I mean, what’s the disenfranchisement of one-in-twenty of the voting population compared to the risk of a party with 5% support sullying our perfect public sphere? A small price to pay…

36

Geoff Robinson 01.17.09 at 5:06 am

The Democrats were allowed to contest the 1864 US elections during the Civil War. Perhaps Lincoln would’t have read Carl Schmitt even if he could have

37

Brett Bellmore 01.17.09 at 6:36 pm

I’m opposed to banning parties, as much out of the belief that if it’s permitted, it will be abused, (The choice of which parties to ban will be made by members of other parties; It’s like letting any business decide which of it’s competitors will be shut down.) as from the notion that it’s a bad thing to do even if done right.

However, I think the notion that Communist parties are in any signicant sense less offensive than Nazi parties says more about the Pollyannish attitude of Western liberals towards communism, than it does about those parties, which are harmless under the exact same circumstances as Nazi parties are: Only when they’re powerless.

Communists have murdered hellishly more people than Nazis ever did.

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