Liberals testing “militant democracy” against right-wing populists and sovereigntists in Donald Tusk’s Poland

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· When liberal, pro-EU Polish Prime Minister Donald Tusk tossed around the slogan “militant democracy” in early September, many commentators saw it as nothing more than another example of rhetorical exaggeration. This is a big mistake.

· The concept of “militant democracy” (also sometimes known as “defensive democracy”) emerged as a reaction to the experience of Nazism, whose adherents came to power in Germany through democratic processes.

· Limited elements of “militant democracy” are found in many legal systems – this includes the ban on the propagation of totalitarian ideologies.

· Referring to the concept of “militant democracy” is always risky because it lacks clear limits.

· Since “militant democracy” implies potential acquiescence to arbitrary actions, it can easily turn into authoritarianism, even when invoked in the name of liberal ideas.

· It is not clear why it would be applied in Poland, where the threat of totalitarianism does not exist – except maybe from those who precisely want to replace constitutional democracy with militant democracy.

· Perhaps it is a matter of finding new “Nazis,” and labeling as such all those opposing greater centralization of the European Union at the expense of national sovereignty.

Author: Tomasz Rowiński

When liberal, Euro-enthusiastic Polish Prime Minister Donald Tusk tossed around the slogan “militant democracy,” many commentators saw it as nothing more than another example of rhetorical exaggeration. And since we live in a time of coarse rhetorical exaggeration in politics, especially in Poland, it might have seemed like no big deal. Sometimes, however, amid the empty rhetoric of our country’s politicians, some words cannot be ignored. This is precisely the case here. The Polish Prime Minister’s declaration, according to which his government must “act in terms of a militant democracy,” could have serious consequences and should raise a red flag in conservative, right-wing circles in other Western countries in which liberal democracy exists.

Radical rhetoric

But what exactly did Prime Minister Tusk say, and why should his words be taken seriously? Let’s start with a quote:

“If we want to restore the constitutional order, if we want to restore those foundations of liberal democracy, we have a need today to act in these terms of militant democracy.

We will probably make mistakes more than once, or commit acts that, according to some legal authorities, will be incompatible or not fully in accordance with the provisions of the law, but nothing relieves us of the responsibility to act” – said the Polish Prime Minister during a meeting with members of the legal community on September 10 of this year.

It would be more accurate to say that this was a meeting with the part of the legal community that supports the actions of the current left-liberal ruling coalition in further dismantling the system of government in Poland. It would not be an exaggeration to add that, for some in these Polish left-liberal circles, Prime Minister Tusk and Minister of Justice Adam Bodnar are acting too softly and too slowly. For them, Tusk probably intended, on the one hand, “strong words” about militant democracy, and on the other, an almost apologetic sentence about “probable mistakes.” Even if Tusk spoke about “militant democracy” to a specifically radicalized audience, this should not be taken lightly. Since Poland’s prime minister chose to use this kind of rhetoric, it means that groups of his radical supporters influence him and that he fears them to at least some extent.

Against the Nazis

“Militant democracy” (sometimes also called “defensive democracy”) is itself a historical concept, formulated in two articles by the Jewish German Karl Loewenstein as a response to the totalitarian temptation threatening liberal democracy. The concept was developed under specific conditions in 1937, at a time when Adolf Hitler had long been in power in Germany. His political goals were then increasingly understood, and so there ensued an attempt, at least intellectually, to find a remedy for the situation in which a totalitarian dictatorship is born in the heart of democracy. However we look at it, this is what happened in the Weimar Republic. It is worth adding that Loewenstein published his writings not in Germany, but on the pages of the American Political Science Association’s journal The American Political Science Review.

The theory of “militant democracy” advanced by Loewenstein can be reduced to a few points:

• First, democracies are inherently vulnerable to attack by anti-democratic forces, so they must be able to defend themselves.
• Second, defending democracy can justify temporary restrictions on certain rights and freedoms, especially if this serves to protect the fundamental principles of the system.
• Third, anti-democratic activities include seeking to subvert democratic institutions, undermining the legitimacy of elections, or spreading hatred and discrimination.
• Fourth, “militant democracy” implies the application of “anti-extremist legislation,” which may include banning anti-democratic parties and militias, restricting freedom of speech and assembly if they serve to promote anti-democratic content, or even establishing institutions resembling “political police” to monitor and combat anti-democratic activity.

Contemporary applications

The outlawing of Spain’s Batasuna party, which was linked to ETA terrorists, and the removal of a party of a religious character from Turkish politics, to protect the constitutional principle of state secularism, are often cited as contemporary applications of elements of “militant democracy.” The Turkish example must be cause for particular concern, as questions increasingly arise over the political standards prevailing in that country. Moreover, one does not need to gather practical examples to understand the dangers of Loewenstein’s concept.

At least three main objections have been formulated against the theory of “militant democracy”:

• It is controversial, firstly, that “militant democracy” allows restrictions on civil rights and freedoms, even in the name of protecting democracy. This is risky and can lead to abuse.
• Second, it is difficult to define clearly which actions can be considered anti-democratic and which can be considered legitimate criticism of the government.
• Third, there is a high risk that “militant democracy” will turn into authoritarianism, in which the authorities will use their powers to suppress opposition and restrict civil liberties.

Donald Tusk’s words can be interpreted in a variety of ways, but each of them must be considered a threat to the sustainability of Polish democracy. First, a conscious – rather than, shall we say, propagandistic – use of the term “militant democracy” would mean that Poland’s Brussels-backed left-liberal ruling coalition actually considers the current opposition to be extremist forces that should be outlawed. In the Polish context, this would mean outlawing at least the largest parliamentary opposition party and excluding millions of citizens from representation. Perhaps such a move would save the liberal establishment, but democracy would certainly be lost.

Second, the use of the term “militant democracy” could mean that Prime Minister Tusk is granting himself the prerogative to suspend Poland’s existing laws and introduce some new interpretation according to his own arbitrary assumptions. The Prime Minister’s declaration can indeed be seen as a self-authorization to introduce in Poland a system of government that would nominally pursue a liberal agenda but would be at least partially authoritarian in political and legal terms.  

“The broad Right in Poland (‘enemies of liberal democracy’) should be stripped of their civil rights, according to supporters of the concept of ‘militant democracy’ openly announced by the Prime Minister,” wrote attorney Bartosz Lewandowski of the Ordo Iuris Center for Litigation Intervention on September 11 of this year, after the Prime Minister’s statement.

During the eight years of rule by the United Right, led by Law and Justice (PiS), the Polish left-liberal opposition, backed by the institutions of the European Union, accused conservatives of violating the principles of democracy and the rule of law. However, their demand for “militant democracy” is not so much about “restoring the rule of law” as, rather, its de facto mutilation according to their arbitrary expectations. It also means directing state policy toward the introduction of “limited pluralism” and “guided democracy,” in which only those who have received a sort of liberal-left certificate of legitimacy can participate in public life.

The calls to outlaw the Law and Justice and Sovereign Poland parties, or to ban the Independence March that takes place every year in Warsaw, are indeed among the demands of radical supporters of the ruling coalition.

Historical context is important

Karl Loewenstein’s concept cannot be completely isolated from its historical context. It was a response to the Nazi Enabling Act, which allowed Adolf Hitler’s government to pass laws irrespective of the Weimar constitution and independent of the Reichstag. Although “militant democracy” is not a mirror image of Nazi law, it contains an analogous spirit of arbitrary voluntarism: he who holds power also has the power to interpret and apply the “spirit of the constitution.” In the same way as this entitlement law, “militant democracy” replaces both the practice of jurisprudence and interpretive traditions with an ideological package.

Façade democracy

Although liberals like to emphasize – erroneously – the rationality of their ideology, justification for the superiority of liberal democracy over standard democracy simply relies on arbitrariness or a tribal sense of superiority of one’s own position. So the Polish liberals themselves apply, to a much broader extent, the policy of sovereign will that they criticized when Law and Justice was in power. But when they want to emphasize some less-arbitrary criterion for the application of “militant democracy,” they inevitably have to resort to Loewenstein’s theory for an analogy. There is no other reason to suggest the need to outlaw other political parties in Poland today. So, one must conclude that there are seeds of a new Nazism in the Law and Justice Party, the nationalist-libertarian Confederation Party (Konfederacja), the Independence March, or even the Ordo Iuris conservative legal think tank. This is absurd, but one can deduce that years of liberal propaganda have led many to believe that this is the present reality.

When Law and Justice was in government, the man who is now Donald Tusk’s minister for justice, Adam Bodnar, called for “transitional justice” in Poland after the elections, if the liberals and the left were to win. The very appeal for a concept of “transitional justice” in a Polish context raises objections. This concept was created and developed in the context of countries where basic human rights were violated and entire population groups suffered oppression or even fell victim to mass extermination. The restoration of legal order in these countries required extraordinary measures, including the overturning of constitutional norms introduced by criminal regimes to perpetuate the lawlessness that persisted under their rule. 

The concept of “transitional justice” applied particularly to post-Hitler Germany, which had to be rebuilt from scratch, and one can hardly see any justification for it in today’s Poland, unless it is just meant to suppress the democratic opposition.

“Militant democracy” and the centralization project of the European Union

Finally, it is worth noting that the political framework for executing “militant democracy” in the Polish context is probably linked to the centralization project of the European Union, and thus to the end of the history of sovereign nations across most of the Old Continent. The sudden need to defend liberal democracy with “militant democracy” happens to coincide with efforts to create a European superstate, which, as expected, will be a directed “façade democracy” characterized by limited pluralism. The use of “militant democracy” for that purpose is being tested in Poland right now, and those who oppose these plans for a European superstate are the new Nazis.

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About the author:

Tomasz Rowiński is a senior research fellow of the project ‘Ordo Iuris: Civilization’ by the Ordo Iuris Institute, as well as an editor at Christianitas and the website Afirmacja.info. He is also a historian of ideas, a columnist, and an author of books, among them: Bękarty Dantego. Szkice o zanikaniu i odradzaniu się widzialnego chrześcijaństwa, Królestwo nie z tego świata. O zasadach Polski katolickiej na podstawie wydarzeń nowszych i dawniejszych, Turbopapiestwo. O dynamice pewnego kryzysu, and Anachroniczna nowoczesność. Eseje o cywilizacji przemocy. He lives in Książenice, near Grodzisk Mazowiecki, in Poland.