Militant Democracy and Emotional Politics

András Sajó

How does militant democracy regard – and respond to – political emotionalism? In this
regard, fascism is only one extreme form of emotional politics that relies on and abuses
constitutional rights and democratic processes. Militant democracy as understood by Karl
Loewenstein raises important issues related to emotionalism in politics beyond the context
of fascism, and as such it is of particular relevance for extreme political emotionalism.
Militant democracy as it stands is not a general theory and practice of the protection of the
constitution, but it can be perceived as a set of measures directed against radical emotionalism,
a technique that may be relevant in all situations where emotionalism takes over the political
process.
In this paper, except where otherwise stated, I consider militant democracy in a narrow, le-
galistic way as a set of bona fide preventive legal measures that place restrictions on rights and
on the democratic process (at least allegedly) for the sake of democracy/constitutionalism.
The problem with preventive rights restrictions is that notwithstanding their bona fide appli-
cations, they are prone to excesses. In fact, the assumption of bona fide use of the restrictions
is quite generous and borders on naı̈veté. In pre-World War II Hungary, Finland, Romania,
and Estonia, for example, restrictive measures served to protect the authoritarian status quo
against radicals who shared the rulers’ anti-democratic mentality,1 and many uses of the
concept in post-war constitutional states remain contested.

1. The Problem of Emotional Politics

Premodern politics was to a great extent a matter of psychology, and this is how it was
perceived in “political science” from Machiavelli to Montesquieu. For James Madison,
for instance, the fundamental puzzle was to find an institutional arrangement capable of
withstanding the caprice of human passions. It was only after the success of the con-
stitutional state and government under the rule of law that emotions were more or less
contained by police and other bureaucratic methods; it was only then that they became
forgotten.2 However, they took their revenge in the interwar period. Where power is
grabbed by means of “emotional mobilization” and where emotion-driven politics deter-
mines the political participation of citizens in legitimate processes of democracy, emo-
tional politics runs the risk of irreversibly destroying democracy through the very means
of democratic politics. Karl Loewenstein perceived fascism as the ultimate form of emo-
tional politics and therefore placed the problem of emotional politics at the center of his
considerations.
Fascism relied on a specific set of emotions, and the use of specific emotions that mobilize
destructive political action are, as such, problematic. Fascist emotional politics relied on
techniques of frightening all those who did not endorse the movement or the regime and
to some extent even the movement’s supporters. Most of Loewenstein’s examples relate
to Machtergreifung-related emotions, mainly the generation of fear and hatred.3 However,
other emotions – namely enthusiasm and identification with the leader – also played a role.
The staple of democracy is very often conformism and acquiescence; at least in Weimar
Germany, the people (or masses) could not resist such intense emotions.

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 Militant Democracy and Emotional Politics: András Sajó 563

One could argue that the place of emotionalism in the politics of the Machtergreifung
(the center of Loewenstein’s preventive interests) and its place in the operation of a political
dictatorship after the grabbing of power (what he calls “emotional government”) are some-
what different. This is secondary here. In both instances – in obtaining power through a legal
and formally democratic electoral process and in the command rule of a fascist (totalitarian)
dictator – emotions provide the necessary social and political cohesion. As unpleasant as it
is, both Hitler and Stalin were emotionally supported by their respective crowds, and uncon-
ditional identification was widespread. Even late Soviet communism commanded emotional
support beyond its demise.
While Loewenstein’s concept of militant democracy as a set of anti-fascist legal tech-
niques might be narrow and one-sided, he also intended it as an answer to a broader problem
of democracy beyond the challenge of fascist politics. Loewenstein’s concerns about emo-
tionalism pertain to a fundamental contradiction of democracy, a problem that has prominent
practical importance in the contemporary world: emotionalism is inherent in democracy,
but democracy, especially in the form of representative government, was designed as a
characteristically non-emotional institution.
While there indeed are important differences among various forms of emotional politics –
among others in the sense that different emotional sets with different potentials to destroy
democracy may prevail in politics – they all stand in tension with the foundational assump-
tions of democracy: emotionalism poses a legal problem for contemporary rule of law states,
and not only because of the possible resurgence or continuity of totalitarian politics based
on emotional mobilization. Emotionalism in politics generates a fundamental tension in the
constitutional state (and even in authoritarian democracies).
Contrary to emotions and emotionalism in politics, emotional politics refers to a situation
where politics is shaped by emotional manipulation of the masses. It relies on generating
feelings that determine political actions destructive of the polity, feelings that do not fit
into deliberative or aggregative processes characteristic of democratic decision-making.4
Emotional politics often centers on building a new social and political identity of the citizens
that is highly problematic for democracy: in modern terms, emotional politics is identity
politics. Fascism relied on identity politics par excellence. The specificity of fascism as
emotional politics consisted in the imposition of a new collective identity centered around a
mythical entity represented by the leader. However, there are other forms of identity building
that replace democratic competition and cooperation which are equally problematic.
Emotionalism troubled Loewenstein not only because it undermines the basic assumptions
of the operations of democracy and public peace. A government that relies on emotionalism
denies Weber’s legal-rational Herrschaft. It is a shorthand for non-rational Herrschaft or
simply domination5 – identity politics facilitates the replacement of the rule of law and
formal procedures of representation as a technique of democracy with the “verdict of the
people,” for example in the form of a plebiscite.
Emotionalism in politics represents a fundamental problem for democratic politics and the
constitutional order because emotionally driven activities will rely on otherwise legitimate
democratic techniques of obtaining political (state) power. Individual rights, the essence of
liberal constitutionalism, also tend to facilitate emotionalism. Institutionalized legal guar-
antees such as fundamental due process, not to mention freedom of speech, association,
assembly, party formation, and so on, help emotionalism to proliferate and prevail, resulting
in the demise of rational deliberation.
Of course, democratic political structures were not built in disregard of the role of emotions
in human action, even though emotions were generally considered as being repackaged into,


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and contained by, interest. This in a way accommodated a departure from rational deliberation
in democratic theory. Hans Kelsen considered democracy as a form that aggregates differing
interests, and it was in this context that he (innovatively) found a positive role for political
parties, a function that was clearly beyond the goals of totalitarian movement-parties:
Given the empirical and unavoidable opposition of interests, the common will, if it is not to
express unilaterally the interests of one group alone, can only be a resultant, a compromise
among opposing interests. Organization of the people into political parties means, in reality,
creating the organizational conditions for such compromises, the possibility of moving the
common will toward a median.6
But Loewenstein’s concerns with emotional politics apply to situations that go beyond the
departure envisioned by Kelsen, which simply set deliberation aside in a way that threatens
democracy. Emotional politics is not an exclusively fascism-related scenario. There are trends
in contemporary politics both in established and more so in illiberal democracies that are
based on emotionalism, especially of the religious and often ethnic (nationalist) sort.
In particular, some versions of strong religion7 – from fundamentalist Catholicism, evan-
gelical Christianity, and Orthodox Judaism to fundamentalist Islam and Hinduism/Hindutva –
have been making serious democratic, electoral attempts to sustain and/or regain control over
the public sphere, including the political and legal one. Relying on a quintessentially emo-
tional belief and practice system, strong religions8 challenge constitutionalism and democ-
racy as a value system (as well as all sorts of non-theocratic state orders) in many ways. This
challenge goes beyond the obvious problem of religiously motivated violence and terrorism
related to religious fundamentalism.
The impact of strong religion on the basic value structure of constitutional democracy is
recognized in all branches of power. As to the judiciary, the European Court of Human Rights
(ECtHR), for example, considered religious fundamentalism more than a simple threat to
democracy and found that past experiences justify restrictions on rights:
The Court must not lose sight of the fact that in the past political movements based on
religious fundamentalism have been able to seize political power in certain States and have
had the opportunity to set up the model of society which they had in mind. It considers that,
in accordance with the Convention’s provisions, each Contracting State may oppose such
political movements in the light of its historical experience.9
The ECtHR endorsed the concern of the German Federal Constitutional Court, which
“stressed the general interest of society in avoiding the emergence of parallel societies
based on separate philosophical convictions and the importance of integrating minorities
into society.”10 In other words, religion-based parallel societies are a threat to democracy,
and preventive interference with party activities might therefore be justified. Because of
concerns about the political ambitions of fundamentalist religious movements, many gov-
ernment members in various German Laender are ready to deny the status of religion and
religious organization to certain movements, to Scientology especially, relying partly on
militant democracy considerations and claiming that the organization’s operation is contrary
to the constitutional order.

2. Restrictive Answers and Normative Concerns about Militant Restrictions

Given the tensions and potential public order risks, it is not surprising that preventive restric-
tions were found, in line with the militant democracy toolkit, to be applicable to denomina-
tional religion and ethnicity-based political parties and their attempts to incite emotionally


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charged political actions. In democracies, where competing religions or ethnicities cause

social division, political activities (party formation, electoral participation, etc.) along reli-
gious or ethnic lines are often prohibited,11 and many other restrictions common to militant
democracy have been found applicable.
Although the concept of militant democracy became part of the post-World War II consti-
tutional landscape and was relied upon, especially in Germany, most notoriously in the form
of Radikalenerlasses against those considered to be political extremists, controversies sur-
rounding the system forced respected commentators to conclude that militant democracy was
used to enforce political orthodoxy: “The difficulty with the concept of militant democracy
. . . has been with its potentially expansive reach: ‘unfortunately, a “militant democracy” can
easily become an illiberal democracy, more concerned with its own stability than with po-
litical developments.’”12 In fact, militant democracy was poorly articulated, which enabled
certain shifts that than made the whole concept somewhat irrelevant. Restrictions, which
once were held to fit into a system of prevention against an identifiable opponent that treats
democracy and democrats as enemies, are replaced with ad-hockery. Such isolated restrictive
measures fit into contemporary constitutionalism as bricolage.
Many countries, even Germany, have demonstrated a certain reluctance to rely on the
concept of militant democracy despite retaining rights restrictions that are part of it, albeit
on different – and sometimes without specific – grounds: the Spanish legislature and courts
have avoided it in the Batasuna context,13 and the ECtHR has accepted that approach without
using its own equivalent of militant democracy, the abuse of rights formula (Art. 17).14 Of
course, it is not only the poverty of the concept that is to be blamed; countries are reluctant
to admit the vulnerability of the state, and officials may believe that a formal recognition of
danger may send the wrong message.

Religious and Ethnic Political Emotionalism & Preventive Remedies

Recall that militant democracy offers certain restrictive techniques in the service of emo-
tion management,15 and we have inherited these techniques without even being aware of
their roots. However, the circumstances of the introduction of these measures are crucial.
Without proper reflection on the reasons for and circumstances surrounding the adoption
of these restrictions, we could easily extend their application beyond where legitimating
conditions are present.16 Institutional leftovers often turn limitations into unprincipled and
arbitrary restrictions. Consider the example of disparaging state symbols (typically flag des-
ecration) in Germany. Disparagement of the colors of the republic was criminalized in 1922
in the [Erstes] Gesetz zum Schutze der Republik (Art. 8.1). Such protection was perfectly
understandable and probably even necessary in the early days of the Weimar Republic, in
the shadow of the Rathenau murder, where large segments of the society and civil service
remained emotionally committed to the defunct Reich.17 Today the provision is part of the
Criminal Code, on the formal ground that the flag is mentioned in the Grundgesetz.18 The
BVerfGE did not see a problem in the criminalization of flag disparagement, while it took
the same court considerable effort to grant protection to a disparaging magazine cover by
classifying the collage representing urination on the flag as art. In light of Texas v. Johnson,19
it is clear that a freedom of expression issue is present in all acts of national symbol dis-
paragement and that disparagement is undeniably a form of symbolic speech. However, the
dissenters in Texas v. Johnson found flag burning emotionally shocking and argued that it
should be denied constitutional protection as it undermined American traditions by offend-
ing patriotic emotions. Showing signs of disrespect for national identity remains a political


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issue, and emotional disturbance and feelings of loss of direction it incites trigger the reflex
of criminalization. The emotional reaction to political emotionalism and emotional politics
remains an instinctively repressive one; hence the need for skepticism and suspicion when
it comes to the application of preventive rights restriction dictated by militant democracy
vis-à-vis religious and fundamentalist politics.
While strong religions represent a special emotional challenge of their own, contempo-
rary emotional politics in Europe is also shaped by political actors (not necessarily only far
right parties) who bring national (ethnic or group) identity into political discourse. Naturally,
political communities cannot exist without a collective identity, and identity-boosting serves
positive functions when a society faces anomie and depression. But this is also true where
diffuse fear and prejudice against immigrants or ethnic minorities come into play; “identity”
enters the political agenda as an important mobilizing factor. Once identity politics becomes
the game in town, even more pragmatic, economic interest-driven actors have difficulty stay-
ing out of the powerful new language game. Offended emotions (ressentiment), if properly
organized politically, will cry for the punishment of “offensive” emotions and those who
expressed them. A similar emotional politics, with a strong transnational religious identity
element, emerged in the context of the Danish Muhammad cartoons.20
To the extent that religiously motivated action takes the form of a politically organized
collective action, its effects often overlap with traditional militant democracy problems, i.e.,
obtaining political power via the democratic route. Emotional politics reinforces both the
beliefs of the religious (and their loyalty to their radical leaders) and the paralyzing impact of
the threat on others. This is certainly comparable to the impact of radical political movements
in the 1920s and ‘30s. In the context of contemporary Indian religious-nationalist politics
(Hindutva), Martha Nussbaum observed that RSS, the movement behind Hindutva politics
and the Bharatiya Janata Party, “is possibly the most successful fascist movement in any
contemporary democracy. [ . . . ] All they have . . . is ‘affection for each other and empathy
for the nation’s problems.’”21 The parallels with the problems that triggered militant democ-
racy are remarkable, even if the religious manifestations are not always intent on grabbing
political power. Consider for example religious meetings and teachings (“propaganda”):
These are protected for the sake of freedom of religion. Under “normal” circumstances, the
state’s ability to learn about the ongoing political agitation at a religious meeting is rather
limited; religious agitation remains little known and hence under the threshold of “prose-
cutability.” Also, religious opinions are beyond ordinary standards of incitement because of
the constitutionally privileged position of religion.
But what to do with a religious organization if it indoctrinates its members in a way that
makes the mind impenetrable to values of democracy, even if it doesn’t necessarily advocate
violent action? What to do, if the leaders of a theocratic religion, following the path of fascist
strategy, encourage participation in democratic politics with the aim of getting sufficient
votes that will enable the dictates of the religion to prevail through legislation? A milder and
more widespread form of these trends is the direct endorsement a church gives to a political
party or candidate during election season, typically over a sermon. The simple answer to this
dilemma is that there is only one limit to be observed by the authorities: The endorsed politics
shall not cross the lines of democracy. It shall not aim or run the risk of barring future free
elections or the constitutional fundamental rights structure. But simple answers may disregard
situational complexities. Instead, one should perhaps look at the religious position involved.
Some religion-based regimes might be incompatible with the order of constitutional
democracy. In the Refah Party22 case decided by the ECtHR, the possible introduction of legal
pluralism (where religious prescripts prevail in the community of a religious group) and a


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general threat to secularism were deemed sufficient to justify a party ban. On both grounds we
find non-rational – e.g., religious-belief-dictated – behavior to be threatening to democracy
and therefore impermissible; where religious motivations animate politics, emotional politics
might prevail and pose a threat to democracy. In this equation, it is unlikely that arguments
for tolerance will temper the absolutist dictates of emotional fanaticism. The enemy of reason
is not emotion, but fanaticism, and there can be little democracy without reason. Democracy
of irrationality therefore seems to merit militant democracy considerations.
When a strong religion makes its presence felt in democratic politics, we face some of
the emotional impacts that were so troubling for the legislators of the 1930s. Emotional
provocations, both then and now, call for specific bans on the techniques that can be abused
by those pursuing emotional politics. Consider the wearing of religious garb in public.23 This
may have the same impact that paramilitary uniforms had in the 1930s. Religious insignia
(garbs) set in motion the same emotional mechanisms that quasi-military uniforms have on
observers and followers. Bans on the headscarf and other elements of the vest are often found
to be legitimate in Western democracies.24
Although the quasi-military threat is absent in the concerned countries, contemporary
forms (and sources) of emotional politics we have covered thus far evince the import and
originality of Loewenstein’s interest in emotionalism. The obvious practical question is to
what extent the techniques of militant democracy are applicable here, first and foremost in
terms of their efficacy, but also in terms of their legitimacy. After all, if the restrictions fit into
the logic of militant democracy, they will be endowed with a prima facie legitimacy. However,
ambivalences remain in the context of contemporary emotional politics. Consider the political
demands of some religious sects, namely for the respect of their local communities. This
looks like an attempt to obtain local political power that is then exempt from public control
in the name of religious autonomy. Elements of this trend, most notably the demand for local
exemption from the rules of secular democracy made through democratic means, are present
in “respectable,” non-violent forms of religious fundamentalism, beginning with Wisconsin
v. Yoder.25 More recently, in Kyrias Joel,26 Satmar Jews were perceived as overtaking power
at the local level, undermining the republican form of government. For the Supreme Court,
however, the fundamental source of constitutional concern was that “the legislature itself [in
carving out a school district for the Satmar] may fail to exercise governmental authority in a
religiously neutral way.”27 According to this reasoning, the state is not to support religious
self-segregation given the indirect threat that segregation poses to democracy even if the
democratic decision-making in its formal sense is not precluded within the boundaries of the
district.
Militant democracy type preventive restrictions are typically aimed at specific, well iden-
tifiable groups and movements. The primary basis for identification of the “enemy” is
adherence to a specific ideology. This in fact enables discrimination of content as certain
views are deemed too dangerous and unworthy of protection. Singling out a religious group
or sect on similar grounds is more problematic than content-based discrimination; it entails
discrimination not only among ideas (a matter of lesser concern outside the United States),
but also among groups of believers. There are practical problems too: a political party with
an identifiable (“bad”) program can be easily targeted, but the task and basis of identification
cannot be the same when it comes to diffuse and obscure religious teachings dating back
centuries. The matter is further complicated when the target is a diffuse, hidden group. Very
often preventive measures imply that the restrictions apply to all members of sometimes large,
politically influential groups because of the stronger likelihood that enemies of democracy
will be among them. To avoid discrimination, however, the restriction is extended to all


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members of the political community, as is allegedly done at airport screenings, where we are
told that the security check is undertaken on a random basis, perhaps in conjunction with
flight destinations, instead of concentrating on, e.g., “Middle Eastern looking” persons.28
Neutral legal techniques rely on the generality of the rule, which successfully hides their
militant intent. Militant democracy measures that affect the whole of the population (the
“good guys like us”) will be, however, unattractive, contrary to those that apply to an emerg-
ing and growing, ideally easily identifiable, minority and mostly to non-everyday activities.
The easing of search and seizure standards for a small, identifiable group that might hold
weapons is generally acceptable to the majority, while a general incursion into the private
life of all is not.
Preventive rights restrictions aside, the electoral system itself is sometimes capable of
hampering the success of party-oriented extremism.29 The introduction of a first-past-the-
post electoral system (and more sublime measures that disfavor new entrants such as requiring
a threshold number of candidates from a certain party to run in a general election in order
for that party to be registered30 ) or restrictions on referendum are less cumbersome to the
general public than invading the privacy of all travelers at the airport. Once again, such
neutral solutions come with the price of excluding important voices and sizeable minorities.

The Normative Problem

Notwithstanding the reluctance to rely on a concept of militant democracy, preventive rights
restriction is commonly used to confront political extremism and political emotionalism
that underlies such extremism, as well as other forms of emotional public behavior. Such
restrictions pose a constitutional (normative) problem, especially in regard to fundamentalist
religious politics. Non-violent, strong religion-motivated activities are prima facie protected
by the constitutional system, even more than other non-violent extremist political movements,
which makes preventive restrictions on religiously motivated political and public action
particularly problematic. In the case of political parties and movements, one could argue
that their constitutional protection is instrumental, that they are protected as instruments of
democratic politics.31 The rights of political movements differ from those of individuals and
are less compelling. The rights of a political movement/party are derivative, contingent upon
its goals, functions, and values, and might be subject to some kind of purposive control.32 In
the case of religious movements, even when they venture into the domain of what some claim
is public politics, the individual human right of free exercise and manifestation of religion
might be at stake. Political action might simply be the genuine manifestation of religion or
may be intended to enable the free manifestation of religion. The relation between individual
and collective religious manifestations is more intimate than the one between the political
rights of a citizen and that of a party. Activities of a religious group are based on a value
or right per se, namely, freedom of religion. But the alleged difference is far from clear-cut.
Even more than political parties, all religions (and therefore religious organizations) enjoy
specific rights, including organizational ones. To give a banal example of the privileged
exceptions granted to religious manifestations, religious processions (i.e., demonstrations)
are exempt from the general rules applicable to assemblies, not to speak of the protections
granted to collective activities within the “sanctuary” of a building dedicated to worship.
Rights-related concerns emerge even outside the exercise of freedom of religion. In the
past, extremist movements were particularly dangerous because they managed to infiltrate the
public administration that was supposed to counter them. This was legally possible because
of the right of individuals to seek public employment and to exercise public function without


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discrimination. It would be a blatant example of religious discrimination to deny a public

service position on grounds of religious affiliation. Nevertheless, at least in some countries,
the threat of religious and authoritarian infiltration into government bodies may justify the
use of employment restrictions for civil servants and especially for members of the armed
forces. Standard justifications for such restrictions include secularism and state neutrality;
for example, secularist prohibitions in the Turkish Army prohibit certain religious practices
as violating the officers’ code of conduct. Loyalty requirements represent an obvious overlap
with traditional militant democracy, where the loyalty concern is based on the assumption
that non-democratic, organized forces will use the right to civil service positions as part of
their takeover strategy.33
The specific and necessary exceptions provided for the exercise of freedom of religion
are subject to abuse. Historically, they have been abused since the days when monasteries
trained regicide monks. Claims concerning the privilege of religious organizations may not
be much stronger than those concerning the privilege of political parties – both may simply
be derivatives of individual rights. After all, it is emotional politics in the guise of religious
teaching that is at stake, not to speak of criminal conspiracy. The religious inspiration
of a political movement does not change the predominantly political character of such a
movement.

The Problem for Constitutional and Democratic Theory

The constitutionality of restrictions placed on certain forms of emotional politics remains
a problem in contemporary democracies. However, emotionalism in politics raises an even
more fundamental problem of democratic politics as was famously identified in the militant
democracy context:

One method of overcoming fascist emotionalism would certainly be that of offsetting or

outdoing it by similar emotional devices. Clearly, the democratic state cannot embark on
this venture. Democracy is utterly incapable of meeting an emotional attack by an emotional
counter-attack. Constitutional government, by its very nature, can appeal only to reason; it
never could successfully mobilize emotionalism; even its emotional ingredients are only a
prelude to reason. The emotional past of early liberalism and democracy cannot be revived.
Nowadays [1937], people do not want to die for liberty.34

Emotionalism hardly fits into a vision of constitutional democracy: at least the Weberian
understanding of democracy, followed by Loewenstein, assumes that democratic constitu-
tionalism has to operate within the limits of reason, while emotionalism that seems to prevail
in politics is always ready to undermine rational decision-making. Again, it is somewhat
immaterial that reason-bounded politics and decision-making make little sense in psychol-
ogy because emotions cannot be separated from reason. Even in the presence of passions,
decisions can be reasonably evaluated according to standards offered by reason and ratio-
nal morality. What does matter is the question of which emotions are at play. Preventive
techniques related to militant democracy seem relevant in the context of a politics based on
specific emotions. But is there a democratic answer to democracy’s rationality deficit, other
than along the lines of some kind of militant anti-emotionalism? Is there an effective answer
to emotionalism once humans and their personal interactions are emotional, even passionate?
Is there an alternative normative theory of democracy, one that does not use an assumption of
rationality in the process of justification, one that considers rationality irrelevant?35 How can
one justify a democracy of passions? How credible are theories of democracy that disregard


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the requirement of reason, where all decisions are acceptable as long as they come from the
genuine expression of people’s (the majority’s) will?
Constitutional theories are often satisfied with the recognition of any “democratically
expressed” will (which can be very emotional) as long as it is subject to legal, bureaucratic,
and political control that allegedly infuses adequate rationality and thereby denies the “unac-
ceptable” dictates of emotions. In a militant democracy perspective, such ex post control is
too risky or inefficient. At least as far as Loewenstein was concerned, furthermore, this very
political decision-making should have been limited to situations where reason prevails. This
is what militant democracy intended to safeguard. Of course, militant democracy emerged
in a political situation where many alternative techniques of the constitutional control of
emotionalism that exist today were unknown.36
Loewenstein’s analysis of emotionalist politics is limited to fascism. But emotionalism
is not privy to ideological extremism; it is part of ordinary democratic politics, where it is
de facto more or less accepted that the electorate is emotionally manipulated. Moreover,
emotions play a decisive role in human judgment and decision-making. The classic assump-
tion of democracy as a representative system is that decisions (including laws and legal
judgments) are made in a rational deliberative process. It was this rational nature that has
conferred legitimacy on government in the classic doctrines developed in the 18th century.
Indeed, constitutional government (with its modern efforts of de-ideologization, neutrality,
etc.) is intended to be an arrangement that filters out the passions.
The emotionalism problem is, of course, well known in democratic theory, particularly in
discussions concerning the subject of democracy. Both Arnold Brecht and Loewenstein (in
a different manner) complained about the lack of democrats, that is, people with democratic
sentiments and commitment in Weimar. The prevailing sentiments of the majority were
against the Republic. Loewenstein thought it impossible to mobilize democracy-enhancing
emotions against emotionalism; there cannot be such emotions, and constitutional democracy
has to be rational (rule of law) by definition and therefore without emotional appeal and
support. Its features do not generate emotional mobilization to protect the democratic system,
and one cannot hope for a passion leading to democratic heroism. The enemies of democracy
might generate fear, but the resulting emotional mobilization (the desire to survive) is not
related to emotional commitment towards the republic.
The foundational concern of Loewenstein is that democratic politics is inherently in
need of some institutional militancy because of the inherent emotionalism of the masses.
A broader concern for institutional safeguards against emotionalism was already voiced by
Madison, who advocated a separation of powers-based constitutional design for normal times
to counter the passions of the majority, i.e., (among others) the emotionalism of the masses.
Arguably, Loewenstein, in defense of a Weberian rationalism in government and politics, is
only trying to find an equivalent means for extraordinary times.
Loewenstein’s theory of militant democracy is elitist. It is concerned primarily with mass
behavior and the psychology of the masses. He considers the mass to be eminently emotional
(i.e., subject to emotional manipulation that leads to passionate action): “Perhaps the time
has come when it is no longer wise to close one’s eyes to the fact that liberal democracy,
suitable, in the last analysis, only for the political aristocrats among the nations, is beginning
to lose the day to the awakened masses.”37
Sociological studies of modern social movements and egalitarian concepts of democracy
find this assumption unacceptable, partly on normative, partly on empirical grounds. Modern
masses are believed to be eminently rational, while assumptions about the mob are described
as reflecting class prejudice and racism, as well as being influenced by biased reports of police


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informants. Although there is rigorous scholarship that partly contradicts this picture of the
masses – e.g., that of Serge Moscovici – the empirical issue is secondary.38 The fundamental
problem is normative and is related to the theory of democracy. It is argued that one cannot
confuse masses and the people, which is a normative concept. But the concept must relate to
some empirical realities. Once faced with that reality, we find that mass behavior, strategic
or justified as it may be, constitutes one of the most important expressions of emotionalism
in democracy, although irrationality is also present in mediated forms in public opinion.
Recall Loewenstein’s doubts concerning the democratic commitment of the citizenry. He
is against the use of the plebiscite,39 which implies his view that constitutional democracy
cannot be sustained if the empirical people are allowed to decide issues directly in an
emotionally charged environment. The plebiscite is not welcome in militant democracy; it
is not accepted at the federal level in the US, and even the referendum has a negligible
role in the German Grundgesetz.40 This brings us to the heart of the problem: it looks
as if the empirical people should not have an unmediated decision-making role because
it is passionate, is easily manipulated to follow identity agendas, or is prone to fear –
because it is emotionally conditioned. This is particularly relevant in the case of non-
structured interactions such as rallies and plebiscites and under “constitutionally abnormal”
conditions of extremist stress. Perhaps we should accept that emotions can be decisive and
that exceptional situations are more common than theories of constitutionalism would like to
assume. In the democratic process, emotionally driven majority preferences, even in the most
“normal” situations (i.e., in the absence of “extremism”) may produce deeply prejudicial,
repressive, and intolerant decisions. As such, democracy (majoritarianism) needs counter-
strategies, including, exceptionally, restrictions, and a kind of militant anti-majoritarianism
(constitutional militancy) might be justified. Political participation might very well be in
need of most participation restrictions associated with militant democracy, e.g., first past the
poll, decertification of extremist parties, etc.
However, a number of objections may be raised against the view that special circumstance-
dependent restrictions are needed to protect democracy from the emotionalism of citizens
constituting the masses. First, one could rightly argue that Loewenstein’s criticism of emo-
tional politics relates to specific emotions. He was responding to a situation were hatred, fear,
and the desire for identification with the leader prevailed. Unfortunately, political movements
inspired by strong religion and radical nationalism/racism rely on partly similar emotions.
Moreover, even “noble” or less destructive and violent emotions can be detrimental to ratio-
nal decision-making. Today, identity has become decisive in the politics of many a country;
electoral campaigns waged via commercial advertisements reinforce identity-based choices.
Participatory politics is about symbols too (some of which were to be banned in militant
democracy). Demonstrations only rarely engender public intimidation, but that does not per
se turn them into a forum for the exchange of ideas: they affirm commitment to ideas and
affirm and shape identities. Speech may have lasting effects, contributing to the formation
of antidemocratic (anti-equality) prejudice, and, at least in some countries, there are efforts
to curtail it for that reason. It can be argued that there can be no rational discourse without
such restrictions.
Is constitutional democracy capable of sustaining itself without a committed people, with-
out reflection on the emotionally burdened, prejudice-dictated, and identity-based aspirations
of some/many of the people? The logic of militant democracy urges that its techniques be
employed (with lesser intensity) even in normal times: rational laws and supportive rational
legal institutions (depoliticized public administration, courts, etc.) shall protect the rational
character of the system, screening out emotionalism.


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Loewenstein is often perceived to have believed that institutional arrangements, when

properly applied, can be a substitute for the lack of popular support: “In weighing the anti-
fascist legislation of Czechoslovakia, it may safely be argued that, against all expectation,
it has preserved the internal peace of the state, the stability of the Republic, and, with due
reservations, also the rule of law, even though it could not inspire loyalty in the hearts of
those sections of the population which are still averse to the state.”41 While such institutional
arrangement was sanctioned in the Grundgesetz (but less so in other post-totalitarian consti-
tutions, e.g., in post-communist Europe), this institutionalism was felt to be quite shallow.
Dolf Steinberger argued that there is need for patriotic sentiment in the constitutional state.
Much later (1979), this led to the notion of Verfassungspatriotismus and to the idea of “pas-
sionate rationality,”42 an attractive normative concept but a psychological oxymoron. While
“passionate rationality” has the appearance of a democratic emotional answer to emotional-
ism, the only possible answer to emotionalism, psychologically speaking, is emotionalism –
emotions can be changed by emotions only. Loewenstein was aware of this: “[B]elief . . .
cannot be argued.”43 In principle, however, the institutional environment may trigger such
counter-emotions. However, critics of Verfassungspatriotismus44 are eager to point out that
this patriotic feeling is non-existent or insufficient and that the state ought to reflect a genuine
pre-existing community based on a cultural identity that mobilizes emotions.
Emotionalism is inherent to politics, and it will continue to challenge democratic con-
stitutionalism as a rational legal venture in the Weberian sense. Preventive restrictions, the
potential dangers of militant democracy notwithstanding, provide an institutional answer to
the emotionalism of human interaction in politics. Preventive institutions center on emotional
cascades and resulting passions with the intent to prevent or break them. As relevant and
effective as they may be, however, one could not overstress the need for proper guidance –
an appropriate constitutional theory that provides identifiable facts for the jurisprudential
application of militancy – when it comes to their application.

NOTES
1. For an excellent overview of inter-war anti-extremism policies, see Giovanni Capoccia, Defending
Democracy: Reactions to Extremism in Interwar Europe (Baltimore: John Hopkins University Press, 2007).
2. András Sajó, Constitutional Sentiments (New Haven: Yale University Press, 2011).
3. “The military routine, because it is directed against despised democracy, is ethically glorified as part
of party symbolism which in turn is part of the emotional domination. Disobedience towards the constituted
authorities naturally grows into violence, and violence becomes a new source of disciplined emotionalism.
The conflicts with the state – unavoidable when this phase of active aggressiveness is reached – increase
the common sentiment of persecution, martyrdom, heroism, and dangerous life so closely akin to legalized
violence during war.” Karl Loewenstein, “Militant Democracy and Fundamental Rights, I,” The American
Political Science Review, 31, no. 3 (1937): 417–432, 425.
Needless to say, Loewenstein was concerned with fascism not only because of its emotionalism (even
if it were a technique of power) that enables power-grabbing and rule. He mentions other, more traditional
techniques of power-grabbing that were also used by the fascists, related to conspiratorial subversion and
violence directed against the established political power, with the intention to replace the power holders
with the new leader(s). This power grabbing might take the form of a coup d’état (not necessarily violent
but leading to oppression).
4. According to the aggregative concept of democracy, democracy does not require specific rationality
in decision-making. In consequence, emotionalism may result in the imposition of exclusive totalitarian
communal feelings on all.
5. This is related to Loewenstein’s concerns about the destruction of the rule of law and foreseeability.
Given the personal relationship between Loewenstein and Max Weber, the above relation is quite likely.
See Karl Loewenstein, Max Weber’s Political Ideas in the Perspective of Our Time (Amherst: University of
Massachusetts Press, 1966).


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 Militant Democracy and Emotional Politics: András Sajó 573

6. Hans Kelsen, Vom Wesen und Wert der Demokratie (Tübingen: Mohr, 1929); Hans Kelsen, “On
the Essence and Value of Democracy,” in Weimar: A Jurisprudence of Crises, eds. Arthur J. Jacobson and
Bernhard Schlink, trans. Belinda Cooper (Berkeley: University of California Press, 2000), 84–109, 93.
7. “Strong religion” refers to religions moving toward fundamentalism that challenge the secu-
lar political order. See Gabriel A. Almond, R. Scott Appleby, and Emmanuel Sivan, Strong Religion:
The Rise of Fundamentalism Around the World (Chicago: Chicago University Press, 2003). See also
András Sajó, “Preliminaries to a Concept of Constitutional Secularism,” International Journal of Constitu-
tional Law 6 (2008): 605–629, 605 (discussing constitutional secularism which is not to be confused with
atheism).
8. The appeal of strong religions is in some instances related to democracy fatigue. Immigrants in
France who were communist (PCF) supporters (and people who earlier would have been supporters) move
towards Islam, which, contrary to the democratic regime, offers them identity. Chantal Mouffe, “The Limits
of Liberal Pluralism: Towards an Agonistic Multipolar World Order,” in Militant Democracy, ed. András
Sajó (Utrecht: Eleven International Publishing, 2004), 69–79, 73.
9. Refah Partisi (the Welfare Party) and others v. Turkey, ECtHR, application nos. 41340/98, 41342/98,
41343/98, and 41344/98, judgment of February 13 2003, para 124.
10. Konrad and others v. Germany, ECtHR, application no. 35504/03, decision of September 11,
2006.
11. See for example, the Pakistani Constitution (1973, as amended) on freedom of association (Art.
[14](1)); The Representation of the People Act, India, 1951 (Art. 8. disqualifying from election persons
convicted for an offence of promoting enmity between different groups on ground of religion).
12. John E. Finn, Constitutions in Crisis: Political Violence and the Rule of Law (Oxford: Oxford
University Press, 1991), 217.
13. The post-authoritarian Constitution of Spain did not openly endorse the concept, perhaps because
it was too threatening for the Communist Party, which in the late 1970s was a major political force in
post-Franco Spain.
14. Abuse of rights in public law is an even less developed concept than militant democracy. See
András Sajó, “Abuse of Fundamental Rights or the Difficulties of Purposiveness,” in Abuse: The Dark Side
of Fundamental Rights, ed. András Sajó (Utrecht: Eleven International Publishing, 2006), 29–98.
15. A concept of militant democracy may justify, for example, militant state intervention in public
education, prescribing and proscribing curricular contents, which in ordinary situations would be suspect
from the neutrality perspective. But a mandated teaching of democratic virtue may raise constitutional
issues. Militant democracy techniques alone cannot handle a fundamental social problem.
It should be added that law confronts already preformed mentalities, or at least mentalities that are
in emotional formation. Adult education might be late to change “the mental structure of this age.” See
Loewenstein’s remark in this regard: “In order definitely to overcome the danger of Europe’s going wholly
fascist, it would be necessary to remove the causes, that is, to change the mental structure of this age of
the masses and of rationalized emotion. No human effort can force such a course upon history. Emotional
government in one form or another must have its way until mastered by new psycho-technical methods which
regularize the fluctuations between rationalism and mysticism” (Karl Loewenstein, “Militant Democracy
and Fundamental Rights, II,” The American Political Science Review, 31, no. 4 [1937]: 638–658, 657).
Where mysticism, etc., is not ridiculed by the public or in education, it is hard to imagine a successful stand
against mysticism-based-extremism on a purely intellectual, non-coercive level.
16. In France, a 1936 decree was used to dissolve unconstitutional associations. See Pierre Esplugas,
“L’interdiction des Partis Politiques,” Revue Francaise de Droit Constitutionnel 36 (1999): 675–710; Pascal
Mbongo, “Actualité et Renouveau de la Loi du 10 Janvier 1936 sur les Groupes de Combat et les Milices
Privées,” Revue de Droit Public et de la Science Politique en France et a l’Etranger (1998): 715–744.
17. A similar law was enacted in 1923 in Czechoslovakia after the murder of the Finance Minister.
See Capoccia, Defending Democracy, 256–57.
18. The emotional concerns may have a long history. Flags and similar insignia were since time
immemorial symbols of sovereignty.
19. Texas v. Johnson, 491 U.S. 397 (1989).
20. See András Sajó, “Countervailing Duties as Applied to Danish Cheese and Danish Cartoons,” in
Censorial Sensitivities: Free Speech and Religion in a Fundamentalist World, ed. András Sajó, (Utrecht:
Eleven International Publishing, 2007), 273–308.
21. Martha C. Nussbaum, The Clash Within: Democracy, Religious Violence, and India’s Future
(Cambridge, Mass.: Belknap Press of Harvard University Press, 2008), 155.
22. Refah Partisi (the Welfare Party) and others v. Turkey, ECtHR, application nos. 41340/98,
41342/98, 41343/98 and 41344/98, judgment of 13 February 2003.


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23. The 1917 Mexican Constitution emerged to consolidate the victory over the Catholic Church,
which endorsed the anti-revolutionary political forces. It contained extremely restrictive provisions on
priest’s robes. This, however, was less related to the emotional impacts of such robe on the audience and
more to the deliberate harassment of the Church.
24. It seems to me that in their struggle against what they consider religious fundamentalism, non-
European illiberal democracies follow to some extent the same pattern that emerged in authoritarian European
regimes in the thirties in their fight against fascism, perhaps with more reliance of secret police methods.
25. Wisconsin v. Yoder, 406 U.S. 205 (1972).
26. Board of Education of Kiryas Joel Village School District v. Grumet et al., 512 U.S. 687 (1994).
27. Ibid., Justice Souter’s opinion.
28. This is also related to the general problems of racial profiling in security operations.
29. In a plurality system with a single member district, success is remote for any third party. See
Samuel Issacharoff, Pamela S. Kallan and Richard H. Pildes, The Law of Democracy: Legal Structure of
the Political Process (New York: Foundation Press, 2002), 1091–92.
30. See the case of the Canadian Communist Party; Figueroa v. Canada (Attorney General), [2003]
1 S.C.R. 912, 2003 SCC 37.
31. Once again, such instrumentalist approach opens the door to slippery slope, a typical concern
with content-based restrictions.
32. However, some constitutions grant “original” rights to parties, because of their vital role in
democracy.
33. Loyalty requirements of civil servants in Germany were interpreted to authorize entry restrictions
into the civil service and were upheld by the BVerfGE, at least at times of stress.
34. Loewenstein, “Militant Democracy, I,” 428. Loewenstein may have underestimated the willing-
ness of citizens to stand up for democracy. During World War II, once this was an issue of the survival of
the life form of the nation, many people risked their life for their democratic country. Today, in most liberal
democracies, even if people are not ready to die for liberty, they would stand up to the extent necessary in
the present conditions.
35. Schumpeter seems to accept the futility of individual rationality when he offers a vision of
democratic politics where parties (even leaders) offer programs (or their sex-appeal) for a choice, where
preferences are not deemed to be rational (at least this is not a requirement for preferences).
36. Loewenstein did not trust constitutional legalism. He found it a blessing that the measures applied
in Czechoslovakia were not brought to the Constitutional Tribunal thanks to the political wisdom of those
politicians who had the power to submit a complaint.
37. Loewenstein, “Militant Democracy, II,” 657.
38. Dieter Groh, “Collective Behavior from the 17th to the 20th Century: Change of Phenomena,
Change of Perception, or no Change at All? Some Preliminary Reflections,” in Changing Conceptions
of Crowd, Mind and Behavior, eds. Carl F. Graumann and Serge Moscovici (New York: Springer-Verlag,
1985), 143–162, 148; Eric J. Hobsbawm, Primitive Rebels; Studies in Archaic Forms of Social Movement in
the 19th and 20th Centuries (Manchester: Manchester University Press, 1971). The best treatment remains
Serge Moscovici, The Age of the Crowd: A Historical Treatise on Mass Psychology, trans. J. C. Whitehouse
(New York: Cambridge University Press, 1985).
39. Loewenstein castigates the Swiss for using the plebiscite against the introduction of measures of
militant democracy.
40. Consider the refusal of a referendum for the adoption of the Grundgesetz. Moreover, all this
comes up in a foundational document that claims that the people can take responsible decisions only where
it is free to participate, and where democracy cannot be furthered without the people being able of self-
determination. Antwortnote der westdeutschen Ministerpr(ae)sidenten an die Milit(ae)rgouverneure vom
10. Juli 1948.
41. Loewenstein, “Militant Democracy, II,” 657. (Emphasis added.)
42. See Jan-Werner Mueller, “A ‘Thick’ Constitutional Patriotism for Europe? On Morality, Memory
and Militancy,” in Law, Democracy, and Solidarity in Europe’s Post-National Constellation, eds. Erik O.
Eriksen, Christian Joerges, and Florian Rödl (London: Routledge, 2008), 195.
43. Loewenstein, “Militant Democracy, I,” 422.
44. The difference between Habermas and Steinberger is secondary here. Empirically, citizens are
not post-conventional moral beings in the sense of Kohlberg’s (much criticized) theory. Even universalist
claims are often fragments of a conventional (religious, ethnic, etc.) identity. Such communal conventional
identity is deeply emotional, in the sense that it easily precludes critical reflection.

András Sajó is a Member of the Hungarian Academy of Sciences.


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