Analysis
The riddle of the ‘protected democracy’
Germany’s set of rules designed in the aftermath of World War II to build a solid barrier against the resurgence of Nazism seems to have failed, since today Alice Weidel's AfD is the second largest political party and has a support of around 20 percent.
The explosive rise of the AfD in the German elections leads us to reflect on a topic of significant interest for Italy as well: that of “protected democracy.” This formula usually designates a model that was inaugurated in the German Federal Republic.
The model provides for the narrowing of certain fundamental freedoms in service of the defense of democracy. For instance, Article 9 of the German Basic Law prohibits not only “associations whose aims or activities contravene the criminal laws” (like Article 18 of the Italian Constitution), but also those “directed against the constitutional order or the concept of international understanding.” Article 18 punishes with the forfeiture of basic rights anyone who abuses the freedoms of expression, press, teaching, assembly or association “to combat the free democratic basic order.”
Then there is a provision specifically dedicated to “anti-system parties”: Article 21, which deems unconstitutional all parties that “by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany.” This set of rules, designed in the aftermath of World War II to build a solid barrier against the resurgence of Nazism, seems to have failed, since today Alice Weidel's AfD is the second largest political party and has a support of around 20 percent.
On the other hand, Article 21 has provided the legal basis to dissolve the Communist Party in the past and, in more recent years, also led to several Left Party deputies being put “under observation.” Obviously, this is not what J.D. Vance had in mind when he denounced Europe's supposed anti-freedom drift; and he was also not thinking about the 2019 parliamentary resolution that qualified the BDS (Boycott, Divestment, Sanctions) movement as “anti-Semitic,” effectively outlawing it in Germany, or the countless cases of censorship of voices critical of the Israeli government (most recently, Francesca Albanese, UN special rapporteur on the occupied Palestinian territories, who was forbidden from speaking at the University of Munich). One may reply that all this represents a distortion of the original idea of protected democracy. But the point is that determining what it actually means to attack or undermine “the constitutional order” is not an easy task.
Nor is it easy to establish the precise boundaries of racist speech and “incitement to hatred,” which in many jurisdictions, including Italy, are subject to criminal punishment. And while Vance's defense of freedom of expression is grotesque, as well as cynically self-interested, at the very least, the passage in his Munich speech about the cancellation of the elections in Romania does raise a real issue.
The truly shocking and unprecedented decision by which the Romanian Constitutional Court invalidated the first round of the presidential elections, not as a result of ascertaining the existence of fraud, but on account of (alleged) foreign interference in the election campaign, conducted via TikTok, was received far too uncritically. As if the other platforms, owned by Western giants, were neutral spaces immune to any influence. Put it in the starkest possible form, the dilemma we face today can be summed up by the contrast between the positions expressed by Saint Just's motto (“No freedom to the enemies of freedom”) and Kelsen (“He who is in favor if democracy must not allow himself to be drawn into a fatal contradiction and reach for the method of dictatorship in order to save democracy”).
The dilemma is a genuine one. A democracy that is too tolerant of its enemies runs the risk of digging its own grave, causing movements and parties to grow within it that are destined to overturn it. On the other hand, there is a real risk that one will start by banning racist speech and end up outlawing “class hatred.” And there is also a real risk to becoming accustomed to the existence of a “state truth,” by virtue of which not only Holocaust denial is outlawed (as per current law in Italy), but also “denialism” of the Foibe massacres [translator’s note: i.e. seeing them as acts of political violence as opposed to ethnic cleansing or genocide] could be considered a crime.
Then there is the issue of the effectiveness of regulations aimed at banning words, gestures, and symbols of “anti-system” movements and parties, which have been shown to be easy to circumvent through various forms of camouflage. The rise of the AfD in Germany is a case in point. But most of all, it is a matter of not deluding ourselves that law can replace politics, and culture, in the truly immense task of building an alternative to the return of barbarism. Which is also happening by way of elections, now as in the past.
Originally published at https://ilmanifesto.it/il-rompicapo-della-democrazia-protetta on 2025-02-26