Precious advice from Karl Loewenstein, a man who battled fascism in a previous age
“Militant Democracy and Fundamental Rights”
Critical advice from a man who battled fascism in previous age.
Karl Loewenstein
The American Political Science Review
August 1937
The German scholar of constitutional law Karl Lowenstein advanced the concept of “militant democracy.” Militant democracy is the concept that there is a practical and strategic need for a radical defense of democracy and the rule of law when it is under assault by fascistic forces who employ the assets of democracy such as freedom of speech, free elections, and transparent systems of deliberative government as tools to advance totalitarian government and to destroy democracy itself.
The locus classicus for “militant democracy” is Karl Loewenstein’s article “Militant Democracy and Fundamental Rights” that appeared in The American Political Science Review in 1937, the height of the takeover of governments across Europe by fascist political parties. The similarity between the bleak political reality that Loewenstein described, and what we see today as the heads of NATO countries commit to raising defense spending and embracing a radically militarized economy and repressive political system, is clear.
Karl Loewenstein fled Germany in 1933 when he and other defenders of constitutional governance were subject to personal threats by the Nazi Party after it took power. He ended up teaching at Yale and then Amherst College.
Loewenstein studied different forms of democratic governance over decades and developed a new field of comparative constitutional law. That is to say that Loewenstein was keenly aware of the specifics of how a militarized fascist movements took over countries step by step and why they could not be defeated at home through attempts to debate laws, or to contest actions in courts (as the foolish leaders in the Democratic Party are doing now) because fascism depends on emotionalism, not rational thought or logic, and it treats the systems of democratic deliberation as mere soft targets to be taken over by brutal means.
Loewenstein saw remarkable uniformity in fascist movements and he recognized, accurately, that fascism was not an ideology or political philosophy at all, but a technique for the hostile takeover of a government.
Fascism, he noted, is similar in its “hatred towards communism, Marxism, and socialism, antisemitism, hostility to freemasons, pacifists, and similar international organizations; the ‘leadership principle’ and abolition of liberal democracy and its institutions; a hazy sort of corporativism; general house-cleaning under the slogans of ‘regeneration’ and ‘renovation;’ rampant nationalism.”
Little has changed 90 years later.
Loewenstein was unambiguous in his postmortem for Germany and other states overrun by fascism,
“Democracy and democratic tolerance have been used for their own destruction. Under cover of fundamental rights and the rule of law, the anti-democratic machine could be built up and set in motion legally. Calculating adroitly that democracy could not, without self-abnegation, deny to anybody of public opinion the full use of the free institutions of speech, press, assembly, and parliamentary participation, fascist exponents systematically discredit the democratic order and make it unworkable by paralyzing its functions until chaos reigns. They exploit the tolerant confidence of democratic ideology that in the long run truth is stronger than falsehood.”
He suggested that those defending democracy must form a common front and that democratic movements across the world must cooperate with each other as closely as the fascistic movements do. Most importantly, he held, based on his experience in Germany, that democratic forces cannot imitate the emotionalism used by the fascists, but that they must adopt a militant democracy that is organized and that denies democratic rights of expression and political action to those who use those rights to carry out political warfare for the purpose of domination.
Loewenstein stated bluntly what most progressives and conservatives in America are not willing to accept, even at this late date, but that must be taken seriously in light of the moves by the Trump administration, with full cooperation of the Democratic Party, to militarize the state against its own citizens such a way that it will be impossible for states, or courts, to contest the empowerment of multinational IT corporations to use AI for social and economic control.
Loewenstein says,
“Few seriously objected to the temporary suspension of constitutional principles for the sake of national self-defense. ‘During war,’ observes Leon Blum, ‘legality takes a vacation.’ Once more, democracy is at war, although an underground war on the inner front. Constitutional scruples can no longer restrain from restrictions on democratic fundamentals, for the sake of ultimately preserving these very fundamentals.”
Leon Blum, the socialist leader in France of the 1930s was entirely correct in recognizing that full legality cannot be preserved when one is under attack. The time has come to take seriously the possibility that we must become militant, and that being militant will ultimately mean forming a provisional government that will contest the authority of the criminal organizations that pose as government in Washington while overseeing massive state crimes.
Loewenstein made it clear when he wrote,
“Constitutions are dynamic to the extent that they allow for peaceful change by regular methods, but they have to be stiffened and hardened when confronted by movements intent upon their destruction. Where fundamental rights are institutionalized, their temporary suspension is justified. When the ordinary channels of legislation are blocked by obstruction and sabotage, the democratic state uses the emergency powers of enabling legislation which implicitly, if not explicitly, are involved in the very notion of government.”
Below is Lowenstein’s invaluable essay from 1937
The American Political Science Review
June, 1937
“MILITANT DEMOCRACY AND FUNDAMENTAL RIGHTS”
KARL LOEWENSTEIN
Fascism a World Movement
Fascism is no longer an isolated incident in the individual history of a few countries. It has developed into a universal movement which in its seemingly irresistible surge is comparable to the rising of European liberalism against absolutism after the French Revolution. In one form or another, it covers today more areas and peoples in Europe and elsewhere than are still faithful to constitutional government. Fascism’s pattern of political organization presents a variety of shades. One-party-controlled dictatorships rule outright in Italy, Germany, Turkey, and, if Franco wins, also Spain. The so-called “authoritarian” states may be classified as belonging to the one- party or multiple-party type. To the one-party authoritarian group, without genuine representative institutions, adhere at present Austria, Bulgaria, Greece, and Portugal; while Hungary, Rumania, Yugoslavia, Latvia, and Lithuania may be classed together as authoritarian states of the multiple-party type, with a semblance of parliamentary institutions. Poland is at the present time in process of being transformed from a multiple party state into a one-party dictatorship. Without being nominally fascist, all of these states are authoritarian to the extent that the group in power controls public opinion as well as the machinery of government. Moreover, for purposes of the present tabulation it is of slight importance that in some of them the dominating group is, at least supposedly, on the defensive against fascist movements proper, mainly because of the threat “ ôte-toi de là que je m’y mette.”
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Of democratic countries with constitutional government, there remain at present only Great Britain -and the Irish Free State, France, Belgium, the Netherlands, Switzerland, the Scandinavian countries (Sweden, Norway, and Denmark), Finland, Czechoslovakia, and, with some reservations, Estonia.
General characteristics and special features of dictatorial and authoritarian government are too well known to be repeated here. Expressed in an empirical formula, such government is a super- session of constitutional government by emotional government. Constitutional government signifies the rule of law, which guarantees rationality and calculability of administration while pre- serving a definite sphere of private law and fundamental rights. Dictatorship, on the other hand, means the substitution for the rule of law of legalized opportunism in the guise of the raison d’ état. By the fusing of private law completely into public law, no trace of individual rights and of the rule of law is left. Positive law is no longer measured in terms of constitutional legality, but only in terms of unchallengeable command. Since, in the long run, no government can rely only on force or violence, the cohesive strength of the dictatorial and authoritarian state is rooted in emotionalism, which thus has supplanted the element of legal security in the last analysis determining constitutional government.
The technical devices for mobilizing emotionalism are ingenious and of amazing variety and efficacy, although recently becoming more and more standardized. Among them, besides high-pitched nationalist enthusiasm, the most important expedient, perhaps, is permanent psychic coercion, at times amounting to intimidation and terrorization scientifically applied. A pertinent illustration chosen from the experience of a democracy may clarify the vital difference between constitutional and emotional methods of government. The solution of the recent political crisis in England by the cabinet and the Commons was sought through rational means. To have left the issue to the verdict of the people would have been resorting to emotional methods, although general elections are manifestly a perfectly legitimate device of constitutional government.
Fascist International in the Making
In addition to these more or less uniform features of internal organization, a closer transnational alignment or “bloc” of fascist nations, a “Union of Europe’s Regenerated Nations,” a fascist International of the multi-colored shirts, is clearly under way, transcending national borders and cutting deeply across historical diversities of traditionally disjoined nationalisms. The modern crusaders for saving Western civilization from Bolshevik “chaos”-a battle-cry which in all countries gone fascist has proved invaluable-for the time being sink their differences and operate jointly according to a common plan. Under this missionary urge, which is one of the most astounding contradictions of a political system based on the superiority complex of each individual nation, what exists of distinguishing marks in program, ideology, and nationally conditioned premises of Realpolitik shrinks to insignificance. In Spain, a mélange of fascist “volunteers” and mercenaries from many countries wage war against international battalions of anti-fascists.
By the same token, close contact and cooperation between the headquarters of international fascism in Berlin and Rome and the outposts in the various countries still adhering to democracy is established, expert advice is sought and readily given, semi-official calls of the fascist leaders from foreign countries are no longer dis- simulated, and, as reported from reliable sources, the spiritual radiation of techniques and stratagems is intensified by substantial monetary support. A pattern of a specific technique of fascist penetration and conquest has been developed which, after having proved its efficacy in the larger fascist countries, is eagerly adjusted, to national conditions by all fascist movements in the making.
Fascist Movements in Countries Still Democratic
Be it noted that fascist groups or parties openly or secretly exist today in all countries which have remained faithful to the rule of law. In Belgium, the Rexists under L6on Degrelle have become an alarm- ing threat to the democracy; France displays a variety of semi- fascist, authoritarian, or more modestly styled “renovation,” movements, the most notorious of which, the dissolved Croix de Feu, has been resuscitated as the camouflaged Parti Français Social; Switzerland’s public life is marked by various “fronts,” particularly in the cantons of Zurich, Schaffhausen, and Geneva; Norway has the National Socialists of Major Quisling; fascists in the Netherlands follow, among others, Mynheer Mussert; Ireland has her Blueshirts under General O’Duffy; Denmark and Sweden have their local varieties; and in England Sir Oswald Mosley preaches and practices the new gospel.
Without going into details, the political situation of fascism in the various democracies may be summed up as follows: In Sweden, Norway, and Denmark, the “authoritarian” movements have thus far been rather negligible; numerically unimportant, National Socialism has gained access to none of the national parliaments, al- though occasionally representatives are elected to communal bodies. In the Netherlands, the Nazi party in 1935 achieved considerable success in the elections for the provincial legislatures and for the First Chamber of the national parliament, polling about eight per cent of the total vote; although since that time the movement seems to have lost ground. In Belgium, at the general elections of May, 1936, the new Rexist party of Degrelle won a striking victory, mainly at the expense of the Catholic and Liberal parties, polling more than ten per cent of the total vote and sending twenty- one deputies to the House of Representatives. In addition, the Flemish Nationalists, who are equally inclined to authoritarian methods, doubled their previous quota of eight seats. When, how- ever, Degrelle, relying on what he believed to be a growing popularity of the movement, forced a by-election in Brussels in April, 1937, the government parties took up the challenge and Premier van Zeeland inflicted upon him a severe defeat. Some observers interpret this election-perhaps prematurely-as the turning of the fascist tide in Belgium and elsewhere.
In France, the various fascist or authoritarian groups did not compete with the regular parties at the general elections of April- May, 1936. Their strength cannot be measured in terms of votes, but Colonel de la Rocque claims for his new French Social party a following amounting to not less than two million. The other more outspokenly fascist groups have been dissolved, and in any case were numerically and politically of no great importance. In the Irish Free State, the Blueshirts are not represented in the Dail, and in England Mosley’s Union of British Fascists apparently has attracted, by noisy propaganda, much more public attention than its numerical strength justifies; the municipal elections in London in March, 1937, revealed its voting strength as negligible, not a single fascist candidate being returned. Fascist parties are prohibited or under severe legal restrictions in the Baltic states, in Finland, and in Czechoslovakia.
This fact, however, is no evidence of their actual disappearance. In Czechoslovakia, Herr Konrad Henlein has reconstituted the dissolved German National Socialist party in the form of a legal political party, the Sudetendeutsche Partei; and in the general elections of May, 1935, this party polled more votes than any other and obtained forty-four seats in the House of Representatives, i.e., only one seat less than the leading Czech government party. Strong fascist or National Socialist movements exist, although nominally proscribed or suppressed, in Rumania, Hungary, Bulgaria, and Yugoslavia.
The programmatic and ideological ingredients of this widely ramified movement of international fascism are surprisingly uniform: hatred toward communism and its kin, Marxism and socialism; antisemitism, with the notable exception of Italy, although even here, evidently under the influence of the “Berlin-Rome axis,” a change in attitude is noticeable; hostility to freemasons, pacifists, and similar international organizations; the “leadership” principle and abolition of liberal democracy and its institutions; a hazy sort of corporativism; general house-cleaning under the slogans of “regeneration” and “renovation;” rampant nationalism. Recruits are usually drawn from the depressed middle classes, from some sections of the intelligentsia, and most of all from the youth, with a fair sprinkling of retired army officers and disgruntled politicians.
On close observation, a similarity of the personalities of the “leaders” is discernible also. If available, a man from the lower middle class or from the proletarian stratum is preferable to an intellectual, which accounts for the juxtaposition of M. Doriot to Colonel de la Rocque in France. For technical reasons to be shown later, the actual personality of the leader is not of primary importance. In spite of slight national differences, the similarities of the fascist movements in the various democratic countries are so striking as to betoken, at least to a superficial observer, common causations of origin and growth.
Impossibility of Explaining International Fascism by a Common Causation
Surprisingly enough, however, none of the commonly assumed motives of fascism holds good. No longer are only the nationally frustrated nations breeding fascist nationalism. None of the Scandinavian countries, nor yet France, Spain, or Belgium, suffers from thwarted national ambitions. Nor is it true that nations endowed with the experience and tradition of self-government are immune from the fascist virus. France and Belgium, at present most exposed to fascism, prove the contrary. Nor can it be held that economic pressure is alone responsible for driving people to political quacks and spell-binders. The depression is visibly on the wane; very little acute misery exists in Belgium and in the other gold-bloc countries, although postponement of devaluation may have delayed recovery. In short, no common denominator for the emergence of fascism can be discovered among nations differing so widely in national character, historic tradition, and economic structure.
Another common assumption is that private capitalism, threatened by the socialist tide and the attendant loss of privileges, builds up fascism as a protective wall of counter-revolution. Beyond doubt, this theory is justified empirically by events in Germany, Italy, Austria, and recently in Spain. But it would be an undue belief in the self-stultification of the capitalist class to assume that it should not have fully realized the ultimate fate of
private capitalism under fascist domination in a totalitarian regime. Private capitalism cannot have failed to understand that at least in Italy and Germany it has fallen from the frying pan into the fire, and that capital controlling democracy is far preferable to corporative middle-class bureaucracy controlling capitalism. In spite of the risks arising from universal suffrage, capitalism thrives best under democracy with its predictability of the rule of law. In addition, the totalitarian state leads eventually to war; whereas democracy and capitalism need peace and safety of investment more than anything else. Middle-class dictators, at the bifurcation of the road, are bound to turn left. Here appears at least one of the potential checks on fascism.
In view of the present situation, one of two conclusions imposes itself. On the one hand, fascism may be nothing less than one of the ground-swells of the spirit which by their universal nature irresistibly transform a world more closely knit together today than ever before. If this be true, democracy as a pattern of political organization is doomed, as royal absolutism was once doomed when liberal democracy conquered the globe. Resistance against the relentless march of history would be a waste of time and energy, and would only aggravate the disaster of the final surrender. One can never escape the spirit. Fascist propaganda has succeeded in instilling this belief in the masses and, like any belief, it cannot be argued. On the other hand, if fascism is not a spiritual flame shooting across the borders, it is obviously only a technique for gaining and holding power, for the sake of power alone, without that metaphysical justification which can be derived from absolute values only. If this hypothesis is realized, the answer is equally inescapable. If democracy is convinced that it has not yet fulfilled its destination, it must fight on its own plane a technique which serves only the purpose of power. Democracy must become militant.
Fascism is not an Ideology but a Political Technique
The fact that fascism is not an ideology, but only a political technique, is abundantly evidenced by the vast experience of the last decade. Fascism is not a philosophy-not even a realistic constructive program- but the most effective political technique in modern history. Its conceptual barrenness is exposed clearly in connection with the Spanish rebellion. Just as in Italy the march on Rome antedated the formulation of a program-a fact which fascism proudly admits -the conquest of power by General Franco and his mercenaries is the sole objective and needs not even the pretext of a substantiated program. Fascism simply wants to rule. The vagueness of the fascist offerings hardens into concrete invective only if manifest deficiencies of the democratic system are singled out for attack. Leadership, order, and discipline are set over against parliamentary corruption, chaos, and selfishness; while a cryptic corporativism is substituted for political representation.
General discontent is focused on palpable objectives (Jews, freemasons, bankers, chain stores). Colossal propaganda is launched against what appears as the most conspicuously vulnerable targets. A technique of incessant repetition, of over-statements and over-simplifications, is evolved and applied. The different sections of the people are played off against one another. In brief, to arouse, to guide, and to use emotionalism in its crudest and its most refined forms is the essence of the fascist technique for which movement and emotion are not only linguistically identical. It is a peculiar feature of the emotional technique that those who are brought into play as the instruments, i.e., the masses, should not be aware of the rational calculations by which the wire-pullers direct it. Fascism is the true child of the age of technical wonders and of the emotional masses.
This technique could be victorious only under the extraordinary conditions offered by democratic institutions. Its success is based on its perfect adjustment to democracy. Democracy and democratic tolerance have been used for their own destruction. Under cover of fundamental rights and the rule of law, the anti-democratic machine could be built up and set in motion legally. Calculating adroitly that democracy could not, without self-abnegation, deny to any body of public opinion the full use of the free institutions of speech, press, assembly, and parliamentary participation, fascist exponents systematically discredit the democratic order and make it unworkable by paralyzing its functions until chaos reigns.
They exploit the tolerant confidence of democratic ideology that in the long run truth is stronger than falsehood, that the spirit asserts itself against force. Democracy was unable to forbid the enemies of its very existence the use of democratic instrumentalities. Until very recently, democratic fundamentalism and legalistic blindness were unwilling to realize that the mechanism of democracy is the Trojan horse by which the enemy enters the city. To fascism in the guise of a legally recognized political party were accorded all the opportunities of democratic institutions.
The main principle of democracy is the notion of legality. Fascism therefore officially annexed legality. Since experience acquired in other countries does not commend the coup d’ etat for the immediate conquest of the state, power is sought on the basis of studious legality. If possible, access is obtained to national and communal representative bodies. This purpose is facilitated by that gravest mistake of the democratic ideology, proportional representation. Democracies are legally bound to allow the emergence and rise of anti-parliamentarian and anti-democratic parties under the condition that they conform outwardly to the principles of legality and free play of public opinion. It is the exaggerated formalism of the rule of law which under the enchantment of formal equality does not see fit to exclude from the game parties that deny the very existence of its rules.
Concomitantly, the movement organizes itself in the form of a semi-military corps, the party militia or private army of the party. Under the pretense of self-protection, the original nucleus of the personal bodyguard of the leaders, and of the stewards for the maintenance of order in meetings, is developed into a large fighting body of high efficiency equipped with the fullest outfit of military paraphernalia, such as military hierarchy, uniforms and other symbols, and if possible, arms. Again, this technique has strong emotional values and purposes. In the first place, mere demonstration of military force, even without actual violence, does not fail deeply to impress the peaceful and law-abiding bourgeois. Its manifestation, so alien to the normal expressions of party life, is, as such, a source of intimidation and of emotional strain for the citizens.
On the other hand, while democratic parties are characterized by the looseness of their spiritual allegiance, the military organization of the fascist parties emphasizes the irrevocable nature of the political bond. It creates and maintains that sense of mystical comradeship of all for each and each for all, that exclusiveness of political obsession in comparison to which the usual party allegiance is only one among many pluralistic loyalties. When party allegiance finally transcends allegiance to the state, the dangerous atmosphere of double legality is created. 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. In addition, the movement is, within its own confines, genuinely democratic. A successful roughneck forthwith rises to distinction in its hierarchy. The uniform has a mystical attraction also in avowedly non-militaristic countries. The effect of military display on the “soft” bourgeois is all the more lasting because he contrasts the firmness of purpose of accumulated force in fascism with the uncontrolled fluctuations of normal political life. In politics, the only criterion of success is success. Fascism has been irresistibly successful in other countries; thus far, it has never met with a reverse. In any democratic country, be it traditionally ever so sober and balanced, the existence of a political movement organized as military force makes the average citizen uneasy and creates the feeling of restiveness which emotional politics needs.
Last, but not least, the party army develops into a potential competition with the regular armed forces in the case of a coup d’ état which invariably follows when the period of pretended legality has reached its aim of undermining the forces of resistance. Repressive counteraction of the threatened state usually comes too late and is paralyzed by fear of civil war.
In former ages, revolutionary movements operated cautiously and in secrecy. They were dangerous because of their underground nature. They could strike without warning. In most states, legislation was passed against secret societies. In the age of the emotional masses, the situation is reversed. Revolutionary fascism needs the spotlight of the utmost publicity. It could never unfold itself in the dark.
Thus, fascism forces itself into the foreground, where its emotional spell can be cast upon the masses. Its technique is relentless self-advertisement and propaganda. Democracy could not reckon with the effects of open propaganda. While vigilance was focused, in fatal misunderstanding of the changed technique of revolutionary movements, on secret actions, no legislative devices existed for offsetting revolutionary emotionalism in the garb of legality, propaganda, and military symbolism. Fascism shrewdly capitalized this situation and won its most notable victories by boring into the weakness of the democratic system.
The German Illustration
The causes for the failure of the democratic experiment in Germany are by far too complex to be measured in terms of a single denominator. But the lack of militancy of the Weimar Republic against subversive movements, even though clearly recognized as such, stands out in the post-war predicament of democracy both as an illustration and as a warning. It is common knowledge that the actual hardships and the spiritual humiliations of the folly of Versailles, so stubbornly enforced by mediocre lawyers acting as French statesmen, in the long run served only the purpose of helping Hitler into the saddle. But the deeper guilt of the mediocre bureaucrats acting as German states- men should by no means be minimized, as has become the habit of one-sided historiographers.
When the paramilitary patriotic movements of the early twenties were driven underground by dictation from Paris, Hitler rose to power by deliberately exploiting the national predilection for military forms of community life for which no lawful outlet existed. Caught by this tragic dilemma, no German government could bring itself to take a strong stand against movements whose professedly patriotic aims appealed even to those who disapproved of the political methods applied. Laden with the heritage of the Treaty, the Republic was powerless against a party which by promoting its own interests fought for redress of the national grievances. The bourgeoisie, after recovering from the first shock of being exposed to the immature schemes of socialist doctrinaires, sided wholeheartedly with the Reichswehr and big business, which secretly connived at National Socialism.
Thus, socialist and democratic cabinets of the center found themselves fighting against the two fronts of the radicalized masses and the patriotically inflamed saboteurs of democracy. In addition, the law-abiding mind of the German people developed the new-fangled ideologies of democratic equality and fair play for all into a self-destroying legalism of which the decisions of the Supreme Constitutional Tribunal are a pertinent illustration.
A survey of the legislative defenses of the Republic against the enemies of the democratic order reveals an almost tragicomical picture of half-hearted, laggard, and thoroughly ineffective methods of dealing with the subversive technique. The law for the protection of the Republic, sprung from popular indignation over the assassination of Herr Rathenau in June, 1922, was openly defied by Bavaria and secretly made blunt by hyper-legalistic, or even mutinous, courts from the beginning; and when renewed in 1930, the statute emerged from Parliament insipid and feeble. The elections in September, 1930, resulted in a political deadlock by which any constitutional amendment was dependent on the support of those against whom it was directed; that atmosphere of illegality and high treason was created which ultimately killed the Republic.
No government would dare to seize arms unlawfully possessed by militarized parties, since secreting of arms was a patriotic manifestation against the Treaty. How could legislation for the protection of democratic institutions and symbols be enforced when the German bourgeoisie branded democracy with the stigma of Versailles? Measures aimed at curbing political excesses were futile when every radical deputy could, under the protection of sacrosanct parliamentary immunities, employ the platform to undermine the Republic. For less than two months, in the spring of 1932, the wearing of political uniforms in public was unlawful under an emergency decree of the Reich. But it was impossible to enforce the ordinance because of the diversities in the political composition of the governments of the Lander entrusted with such enforcement. In the light of later events, the decree of the cabinet of von Papen in June, 1932, by which associations “whose members habitually appear in public in closed formation” were required to submit their by-laws to the Minister of the Interior, reads like a travesty of law.
The German Republic foundered on its own concepts of constitutional legality, which opened the way to power for Hitler. Democracy had surrendered to National Socialism long before Hitler was “legally” appointed Chancellor of the Reich. On the other hand, it must be admitted frankly that National Socialism knew how to benefit from the calamitous experience of the Weimar Republic. The one-party system was the logical answer to the democratic tolerance of the crushed Republic.
Impossibility of Democratic Emotionalism
Once the character of revolutionary fascism as a technique for destroying democracy emotionally is recognized, much of its spell is broken. The inductive object lesson offered by the experience of the last decade was not entirely lost upon the countries still adhering to democracy. At long last, democracies became conscious of the threat, and they are now organizing defense. On the whole, the outlook for democracy has improved considerably, both psychologically and materially. The tide of fascism seems to be turning, although in several countries, e.g., Belgium and France, there is still imminent danger.
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, people do not want to die for liberty. The heroic defenders of Spain against Franco and his fascist auxiliaries do not fight for liberty as such, but for a new social ideal, or perhaps only for their lives.
As a rational system, democracy can prove its superiority only by its achievements, which are obfuscated by economic distress and discredited by social shortcomings. The values of liberty seem secure, with the result that to many they appear worn out by routine, faded, pale, and glamourless. Democracy could not devise emotional formulas capable of competing with the fascist Pied Pipers. Democracy a’ la recherche d’une nouvelle mystique seems hopeless, if not ridiculous. Democratic romanticism is of itself a contradiction.
The Common Front Idea
Realistically, the defense of democracy can be projected only on political and legislative lines. The two methods are clearly distinct, although if political presuppositions are lacking, legislative action cannot be taken. Spiritually, both arise from the same will of self-protection and self-preservation. But while the political attitude aims at establishing a united and uniform action among the democratically-minded sections of the people against the common enemy, the anti-fascist legislation in democratic states is directly pointed at the fascist technique; it can be passed even if a formal political understanding among the various anti-fascist parties does not exist. On the other hand, political union alone, without the technical legislation, fails to achieve its purpose.
In many states, democratic parties have become aware that the very existence of democracy is at stake. The war of doctrines is at last in full swing. It is true that fascism, in the present stage, pre- tends to crusade mainly against Marxism. But its spokesmen denounce liberalism and democracy, the germ carriers and hotbeds of socialism and communism, as the gateway to bolshevism. The logical result has been the rise of the Common Front idea in several countries. Originating in Spain, it was followed up in France with, at least for the time being, unmistakable success. In France, as in other countries, the main difficulty in uniting the anti-fascist parties is the strong aversion of large sections of the bourgeois middle-classes and of the farmers towards the Left; the Communist partner’s devotion to constitutional government and to the principles of private property are justly mistrusted. The Common Front idea, new and untried as it is, has proved a two-edged weapon, and the ambiguity of the political alliance is widely exploited by fascist propaganda. Thus, it cannot be regarded as the final determinant for the solution of the problem of political union against fascism.
Furthermore, for various reasons, in most countries, e.g., England and Switzerland, the Common Front plan has little chance of realization. In some cases, communism has been subjected to severe restrictions; in others, it is almost non-existent. The absence of the disturbing element of communism has facilitated a closer drawing together of the bourgeois liberal and moderate socialist parties for common defense without the precarious device of a political alliance in the form of a common front. This accounts for the fact that in most democratic countries, with the exception of France, the defense of the moderate parties is directed equally against communism and fascism, with the result that anti-extremist legislation can be coordinated without flagrant violation of democratic principles. As A. P. Herbert, M. P., humorously remarks: “A plague on both your blouses.”
Thus, the Catholic parties have been able to combat the anti-religious propaganda of communism, while the liberal center parties, which are usually the first losers to fascism, could concentrate their activities against- that enemy. In all democratic countries except France, a concurrent attitude of the constitutional parties against both fascism and communism has been established and anti-extremist legislation has been carried by parliamentary vote and public opinion at large.
Lack of Cooperation Among Democracies
On the other hand, while the Fascist International seemingly operates according to a strategic plan on trans-national lines, very little has been accomplished toward establishing a closer cooperation of democracies internationally. Democracies still adhere to the belief that a war of doctrines must be avoided at all costs. The existence of a common danger is not fully recognized. International fascism benefits again. In every country where fascism seized power, it was helped most by the disunity of its opponents. International fascism is obviously confident that the same strategy can be applied to Europe as a whole. The currency agreement in the autumn of 1936 among the gold-bloc countries, the sterling bloc, and the United States was purely opportunistic and one of the many lost opportunities for concerted action.
Even the remarkable experiment of establishing regional solidarity on this side of the ocean by the Pan-American Conference seems less auspicious in view of the disintegrating tendencies of local fascist movements. Efforts at mutual economic understanding are at least under way between the Netherlands and the Scandinavian countries and among the members of the Baltic group. More esprit de corps is shown in Spain, where international anti-fascists rally behind the Spanish republic. This first instance of vigorous defense is at the same time a clear indication that the war of doctrines can no longer be ignored. At any rate, the Spanish example helps to convince fascism as well as democracies that in any particular country a fascist coup d’ état means civil war.
Democracy Becomes Militant
The most important step has been taken in a different direction. More and more, it has been realized that a political technique can be defeated only on its own plane and by its own devices, that mere acquiescence and optimistic belief in the ultimate victory of the spirit over force only encourages fascism without stabilizing democracy. Since fascism is a technique bolstered up ex post facto by ideas, it can be checked only by a similar technique. It took years to break through the democratic misconception that the principal obstacle to defense against fascism is democratic fundamentalism itself. Democracy stands for fundamental rights, for fair play for all opinions, for free speech, assembly, press.
How could it address itself to curtailing these without destroying the very basis of its existence and justification? At last, however, legalistic self-complacency and suicidal lethargy gave way to a better grasp of realities. A closer study of fascist technique led to discovery of the vulnerable spots in the democratic system, and of how to protect them. An elaborate body of anti- fascist legislation was enacted in all democratic countries. The provisions were drafted precisely for checking the particular emotional tactics of fascism. Step by step, each device on which the success of fascism is grounded was met by a legislative provision which crippled it. Furthermore, fascism as a technique went the way of all purely technical contrivances. It became stereotyped.
Thus, precaution could be taken against repetition of formulas and patterns of action which were successful in other countries. Seen from the angle of its international application, fascist technique appears now rather conventional and standardized; variations of its schematic mechanism are comparatively rare in spite of its ingenuity in adjusting itself to the particular national situation. Thus, the legislative counteraction could definitely match the emotional technique. It is a clear indication of the growing unwilling- ness of democracies to lend parliamentary institutions to the fascist technique of exploiting them for their selfish ends that the Belgian parliament in March, 1937, passed a bill seeking to prevent resignations from parliamentary seats merely for the sake of facilitating propaganda at the ensuing by-elections. Although democratic countries could not bring themselves to concerted action on an international basis, the prophylactic measures adopted in each individual country are surprisingly similar.
After much hesitancy and legalistic inhibition, efficient measures against fascism reached the statute books. In spite of the electoral successes of fascist movements in several countries, such as Czechoslovakia, Belgium, and the Netherlands, the movements are kept by legislation within the bounds of normal political parties, and if fascism did not get beyond control in any democratic country which adopted anti- fascist legislation, it is because democracy finally became militant.
Can an Idea be Suppressed?
At this juncture, a serious objection may be raised. No spiritual movement can, in the long run, be suppressed merely by legislative and administrative measures. At most, it may be only slowed up. Liberalism survived the reaction of the Holy Alliance, and in the second half of the nineteenth century it conquered the world. The German statute proscribing socialism during the period 1878-90 did not prevent the resuscitation of the Social Democrats after repeal. Russian communism, outlawed before and after 1905, today rules the empire of the Czar. Always the spirit breaks its chains. But socialism was an idea, perhaps the strongest idea since 1789; and history teaches the deathlessness of ideas. The same argument, however, does not operate in favor of fascism, because it is not an ideological movement but only a political technique under ideological pretenses. There is no historical evidence that a political technique is irresistible if recognized and fought as such.
Democracies withstood the ordeal of the World War much better than did autocratic states-by adopting autocratic methods. Few seriously objected to the temporary suspension of constitutional principles for the sake of national self-defense. During war, ob- serves Leon Blum, legality takes a vacation. Once more, democracy is at war, although an underground war on the inner front. Constitutional scruples can no longer restrain from restrictions on democratic fundamentals, for the sake of ultimately preserving these very fundamentals. The liberal-democratic order reckons with normal times. The guarantee of individual and collective rights serves as a legal basis for compromise between interests which, to be sure, may fall into conflict, but which nevertheless are animated by common loyalty toward the fundamentals of government.
Constitutions are dynamic to the extent that they allow for peaceful change by regular methods, but they have to be stiffened and hardened when confronted by movements intent upon their destruction. Where fundamental rights are institutionalized, their temporary suspension is justified. When the ordinary channels of legislation are blocked by obstruction and sabotage, the democratic state uses the emergency powers of enabling legislation which implicitly, if not explicitly, are involved in the very notion of government. Government is intended for governing. Fascism has declared war on democracy. A virtual state of siege confronts European democracies. State of siege means, even under democratic constitutions, concentration of powers in the hands of the government and suspension of fundamental rights. If democracy believes in the superiority of its absolute values over the opportunistic platitudes of fascism, it must live up to the demands of the hour, and every possible effort must be made to rescue it, even at the risk and cost of violating fundamental principles.
Some Illustrations of Militant Democracy
Before a more systematic -account of anti-fascist legislation in Europe is undertaken, recent developments in several countries may be reviewed as illustrating what militant democracy can achieve against subversive extremism when the will to survive is coupled with appropriate measures for combatting fascist techniques.
- Finland:
From the start, the Finnish Republic was particularly exposed to radicalism both from left and right. The newly established state was wholly devoid of previous experience in self- government, shaken by violent nationalism, bordered by bolshevik Russia, yet within the orbit of German imperialism; no other country seemed more predestined to go fascist. Yet Finland staved off fascism as well as bolshevism. At first, the political situation was not unlike that of the Weimar Republic in the years of dis- integration. The Communist party, declared illegal by the High Tribunal as early as 1925, reconstituted itself and, in 1929, obtained a large representation in the Riksdag, thereby blocking any constitutional reform. Under the decidedly extra-constitutional pressure of the nationalist and semi-fascist movement of the Lapuans, the Communists were so intimidated that nationalists, and progressives (bourgeois liberals), against the opposition of the social Democrats, were able to carry the constitutional reforms which not only strengthened the position of the government but also eventually barred subversive parties-meaning, at that time, the Communists-from national and communal representation.
The Communist party finally disappeared from political life. Concomitantly, the fundamental rights of association, free speech and press, and freedom to combine were severely curtailed. In particular, the statute of November 28, 1930, proscribed the formation, activities, and support of all parties aiming at forceful change of the political and social order. When, however, after the elimination of the Red danger, the Lapuan movement became increasingly over- bearing, and also resorted to lawlessness and terrorism against the constitutional government, the acting cabinet, under the presidency of the “liberator” of Finland, Svinhufvud, invoked against the Lapuans the same laws by which Communism had been crushed. In December, 1931, the Lapuans, in the Mantsilli uprising, tried to seize power by armed rebellion, but the movement collapsed immediately, when it encountered, in March, 1932, militant application of the extraordinary powers. The Finnish democracy was saved also from fascism.
After that, President Svinhufvud was able to steer a middle course and to stabilize the country as a genuine democracy. The government passed the necessary legislation against the recurrence of fascist plots by the bills of 1933 for- bidding the formation of private armies within political parties, and of 1934 prohibiting the ostentatious wearing of political uni- forms and other symbols of political allegiance. Although a fascist party was permitted to participate in political life, enforcement of the anti-extremist legislation effectively crippled its aggressiveness, and, deprived of its military regalia, it became only one among other ordinary political parties of scant importance. Thus, Fin- land’s political status was changed from that of a Baltic state of the authoritarian type to that of a member of the Scandinavian family of democracies. The result of this evolution was confirmed by the election, in February, 1937, of Mr. Kallio, the Agrarian leader, in succession to Mr. Svinhufvud as president of the Republic.
- Estonia
Another striking illustration of militant democracy is offered by Estonia. Here again, a country of political and economic instability, located precariously between Red and Brown, successfully withstood both communism and fascism. After Hitler’s seizure of power in Germany, the menacing pressure of fascist groups increased also in Estonia. The problem took once more the post-war turn of constitutional reform usually resorted to when it becomes necessary to strengthen the executive against parliamentary disintegration. By the reform of 1933-34, the president became nothing less than an authoritarian leader. The reform movement was sponsored and carried through by the “liberators,” a true replica of the National Socialist party in Germany. When, in January, 1934, the new constitution came into force, the “liberators” hoped to utilize the increased powers of the executive
over the legislative for their own plans and prepared for a forceful overthrow of the government by a coup d’ état, the so-called Larka plot of March, 1934. But President Pats used against fascism exactly the same extraordinary powers that the reform had conferred upon him. Not only the local fascist organizations which the former Baltic landowners of German extraction had built up were dissolved, but also the “liberators” were proscribed by martial law. Emergency powers were widely applied to maintain order and peace through the vigilance of the President, a second attempt of the fascists to seize power by force was nipped in the bud (the so- called Larka plot of December, 1935). It is true that since 1934 Estonia’s political system more or less reflects the authoritarian type of government, with almost unlimited powers vested in the President on the basis of the one-party system, the government’s Fatherland party. But the suspension of constitutional government was clearly meant to be of transitional character. In February, 1936, an honest plebiscite went in favor of a full restoration of democracy and of a constituent assembly. At the general elections for the constituent assembly, in December, 1936, both communists and fascists were excluded from the ticket, and a democratic constitution of the new authoritarian type may be expected. The Estonian example demonstrates the preservation of democracy by undemocratic methods and typifies the situation of democracy at war against fascism.
- Austria
For a short while, between March, 1933, and February, 1934, the Austrian Republic seemed to take a similar course. The government of Dollfuss was at first intent on avoiding fascism as well as communism, and in May, 1933, it outlawed subversive movements of all kinds impartially. In February, 1934, however, Dollfuss ruthlessly crushed the Socialist party, which was intensely loyal to constitutional government, and established a one-party state, thus openly flouting the rule of law and turning Austria into a fascist country without even the pretext of constitutional government. The attempt of the dominating minority group to keep out national socialism by a pitiful imitation of its emotional propaganda seems doomed to failure. After the conclusion of the German-Austrian agreement of July, 1936, the transformation of Austria into a National Socialist vassal state is only a matter of time and tactics, which even successful monarchical restoration may temporarily delay yet not ultimately prevent.
- Czechoslovakia
No doubt the most conspicuous example of a democratic country maintaining its fundamental structure against overwhelming odds is Czechoslovakia. Here, on this solitary island in the surrounding sea of dictatorial and authoritarian states, the internal situation is distressingly complicated by the existence of a strong minority of Sudetic Germans, who, once the dominating class, could never quite reconcile themselves to cooperation with the Czech majority controlling the government. Among the Sudetic Germans, whose masses live close to the German border, more and more a dangerous spirit of irredentism grew up, duly fostered by the rising power of National Socialist Germany. In addition, the parliamentary administration, otherwise admirably handled, proved, as everywhere, too slow and cumbersome for the exigencies of the economic crisis which weighed heavily on the highly industrialized country.
That the democratic structure and the national integrity were none the less maintained is due to two causes. In the first place, the successive coalition governments, acting under sweeping enabling laws, ruled more and more by de- crees under the ultimate control of the parliament. Thus Czechoslovakia bowed to the new version of parliamentary democracy after 1929. Although this course was certainly open to grave constitutional objections, the highest courts and the parliamentary bodies, which alone can raise the issue of the constitutionality of these far-reaching measures before the Supreme Constitutional Tribunal, wisely refrained from being over-legalistic.
Slowly, the Czechoslovakian political system was transformed into the authoritarian, or “disciplined,” democracy which the emergency situation in the national and international sphere demanded. On the other hand, the government reacted vigorously against the fascist technique of undermining the constitutional system and the democratic spirit of the institutions. In the report of the committee of the House of Representatives on constitutional and legal questions, introducing the law of October, 1933, concerning the suspension and dissolution of subversive parties, we read the following sentences, which aptly describe the existing emergency situation: “It is evident that all constructive and politically responsible factors are confronted by the necessity of making provisions for the defense of the most cherished possessions of the Republic and of the citizens, in order to check the activities inimical to the state “…In politics also the defense is shaped according to the fighting methods of the assailant.”
In accordance with these policies, the Czechoslovakian Republic enacted the most comprehensive and intelligent legislation against fascism now in existence in any modern state, and, what is more, the authorities used the powers conferred upon them with un- daunted energy. As early as 1923, an act for the “protection of the Republic” shielded the integrity of the Republic and of republican-democratic institutions. In view of the more subtle methods of the fascists, who shrank back from open defiance of the law and pursued their aims under cover of the exercise of fundamental constitutional rights, more appropriate measures had to be devised. In October, 1933, shortly after the avowedly National Socialist German parties had been prohibited by a mere administrative order, a statute was passed which empowered the government to suspend and dissolve any subversive party, group, movement, or association whose activity, in the opinion of the government, was “apt to endanger the constitutional unity, the integrity, the republican-democratic form of the state or the safety of the Czechoslovakian Republic.” Membership in an association with subversive aims was deemed sufficient evidence of guilt.
Reconstitution of a dissolved party under another name or form (tarning) is unlawful; members of the outlawed party are ineligible for parliamentary or public office; active members forfeit their parliamentary or official functions; property of an outlawed association is to be confiscated; uniforms and all symbols indicating sympathy for the proscribed movement are prohibited; freedom of speech, press, assembly, and movement within the state for all involved in or suspected of subversive activities is heavily curtailed. In addition, members of and sympathizers with such parties may be subjected to close surveillance and control by the police. In conformity with the rule-of-law principle, the final decision on the legality of an order suspending or dissolving an allegedly subversive party lies with the Supreme Administrative Tribunal. Thereafter, no subversive extremist or revolutionary movement could raise its head, although a Czech fascist party was permitted to continue as an ordinary political party. Communism had previously adjusted its program and tactics to the democratic environment.
In view of the determination of the government to defend democracy, the parties fundamentally opposed to the present form of the state had to conform to the laws. Avoiding any open defiance, and also refraining from unlawful or militaristic propaganda, the formerly subversive forces of the German opposition organized themselves into a normal political party. At the general elections of May, 1935, the “Sudetendeutsche Heimatpartei” of Herr Konrad Henlein emerged suddenly as the second strongest party in Parliament, rallying almost seventy per cent of the German population under its banner. It was evident that even the most foresighted legislation could not prevent the forces of the opposition from organizing themselves efficiently. But under threat of the act of 1933 and the determination of the government to enforce it, the Henlein party acted scrupulously in accordance with the law, the constitution, and the rules of the parliamentary game. In addition, the act had proved an effective device for preventing the opposition from becoming a military organization. Yet the government anticipated the potential danger arising from an inimical population strongly organized in political cadres and bordering on an unfriendly neighbor. A new and far more drastic statute was passed in May, 1936, styled an “Act for the Defense of the State.”
Again no heed was paid to well-substantiated objections which constitutional legalism did not fail to raise. In normal times, this piece of legislation —which in fact is a new constitution — would have been legally impossible unless passed as a constitutional amendment. But it was justified by the emergency situation.
The statute moulds the entire state, and particularly the border districts, into a fighting unit in preparation for the impending war by abolishing, to a large extent, under wide discretionary powers of the government, constitutional guarantees and constitutional rights. It provides, should need arise, for martial law in peace time, and it anticipates the totalitarian war by the totalitarian peace. At present, only an open rebellion, presumably supported by intervention from abroad, could overturn the existing system of government. In Czechoslovakia, the postulate of democracy at war is fulfilled to the letter.
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. Within the limits of the possible, it immunized the state against fascist techniques and pre- pared the country for defense if and when a final clash of doctrines can no longer be avoided. Manifestly, this anti-fascist legislation has rendered an invaluable service to the peace of Europe.
III Summary of Anti-Fascist Legislation
The following survey tries to summarize the contents and purposes of anti-fascist legislation in Europe. The principal democratic countries included are France, Belgium, the Netherlands, England, the Irish Free State, Sweden, Norway, Denmark, Finland, Switzerland, and Czechoslovakia. Reference is made occasionally also to Lithuania, notwithstanding that this state clearly belongs to the new type of “authoritarian,” or “disciplined,” democracy of the Baltic pattern. Space forbids any detailed or exhaustive description, and no juridical evaluation is intended. Although the comprehensiveness of the measures adopted varies from country to country, it will be seen that, with- out exception, all democracies have resorted to statutory precautions and legislative defense of one kind or another.
As to the political effect of the measures for keeping incipient fascism under control, it may be said that although local conditions are widely different, behind national diversities considerable uniformity is clearly visible, corresponding to the uniformity of the fascist technique in undermining the democratic state. Naturally, the chances of ultimate success in holding the various local fascist movements at bay are proportional to the time of the enactment of restraining measures (whether early or late), the elaborateness of the measures and the skill with which they have been drafted, the prevailing legal traditions and techniques, and, above all, the zeal and determination in enforcement displayed by the administrative and judicial authorities. The appropriate time for enactment was certainly shortly after Germany went National Socialist. Countries which unduly delayed legislation found it increasingly difficult to quell movements that had already cast their spell and taken root in the public attention.
Legislation is usually directed also against subversive movements or groups other than fascist or National Socialist if they are considered detrimental to the democratic state. In the main, however, the laws are drafted in order to match the particular kind of technique applied by fascism. It should be noted that in democratic countries, with the exception of France, there is, on the whole, no conspicuous permeation of the people by communism. This is true not only because the comparatively high standard of living in democratic countries and the social environment do not encourage it, but also because where radicalism exists it is more or less merged with and absorbed by official moderate socialism, and thus neutralized.
The various legislative measures may be grouped along the following lines:
(1) To deal with open rebellion, insurrection, armed uprising, sedition, extended riots, conspiracy against the state-in short, with every overt act bordering on or falling in the category of high treason-the ordinary criminal codes of all countries are adequately equipped. Unless a state has reached the stage of actual political disintegration, the regular forces of the police or the army are amply sufficient to suppress high treason of individuals or rebellion undertaken by larger groups. As fascism and communism had ample opportunity to learn from experience, a determined government backed by a loyal army is invariably capable of quelling a putsch or coup d’ état, or even an extended insurrection from left or right-for example, the Kapp putsch (1920) and the Hitler putsch (1923) in Germany; the Gayda putsch in Czechoslovakia (1926); the Larka uprising in Estonia (1935); the Mhntsilli uprising in Finland (1931-32); rebellions in Austria (1934), Spain (1934), Greece (1935), Ireland (1935); the military revolt on board the De Zeven Provincien in the Dutch East Indies (1933). Hence, the fascist strategists have grown particularly careful not to commit any overt act of rebellion until the subtler and studiously lawful methods of undermining the state and establishing the atmosphere of double legality warrant the ultimate seizure of power by coup d’ eat. Nevertheless, several democracies have deemed it advisable to strengthen their criminal codes or to introduce special legislation against high treason (Czechoslovakia in 1923 and after, Belgium in 1934). Similar provisions were proposed in Switzerland (1934 and 1936). In addition, most states are prepared to make full use of martial law, and of extraordinary powers for state of siege, in case of a rebellion spreading over their territories.
(2) The most comprehensive and effective measure against fascism consists in proscribing subversive movements altogether. Only in isolated instances is legislation drafted so as to prohibit specifically named parties. This was the case when, in 1933, Austria proscribed both National Socialism and communism, together with their affiliated organizations. As a rule, however, such legislation is formulated very carefully in order to avoid open discrimination against any particular political movement, thereby maintaining, at least nominally, the democratic principles of equality before the law and due process under the rule of law. Thus not even the anti- communist statutes in Finland, Latvia, and Lithuania singled out left extremism for prohibition, although the communists were the obvious target. To have sinned glaringly against the fundamental democratic tenet of political equality is the doubtful distinction of the oldest and most venerable democracy, i.e., Switzerland. The federal Public Order Bill, proposed by the Federal Council in December, 1936, tried to outlaw the Communist party alone by naming it explicitly as dangerous to the state-a wholly unjustified discrimination which so stirred public opinion that the bill had to be changed, during the parliamentary debates in the Ständerat, into a general ban of all subversive movements. While public resentment against such crude violations of democratic traditions had not yet subsided, the cantons of Neuchatel and Geneva out- lawed, by cantonal acts of 1937, the Communist party within their borders. Although in an ultra-bourgeois country like Switzerland communism has perhaps less chance than in any other Euro- pean democracy, the anti-communist law was accepted by referendum by a large majority in Neuchatel, and a similar result may be expected in Geneva. A statute which openly discriminated against communism was passed in March, 1937, in the Canadian province of Quebec (the so-called “Padlock Bill”), and also one in Luxemburg in April, 1937.
With these exceptions, anti-extremist legislation in all democratic states applies the ban indiscriminately to all political groupings which fall under the general category of a subversive party, an unlawful association, or an organization inimical to the state. Specific legal definitions of what constitutes a subversive party or organization are usually avoided. The fact, however, that a group, by its organization or aims, intends or is prepared unlawfully to usurp functions ordinarily belonging to the regular state authorities is as a rule sufficiently indicative of its subversive character. The decision as to whether a group is to be declared illegal lies with the discretionary power of the government, subject, in some countries, to an appeal to a court of the last instance. “Guilt by association” is generally deemed sufficient, even if malicious intent or knowledge of the subversive aims of the association cannot be proved against the individual member. Groupements de fait are treated as regularly constituted political parties or organizations-a provision which strikes a blow at the ominous notion of the “movement” as distinguished from an ordinary political party. Reconstituting a proscribed party under any pretense whatsoever is a crime. This measure has not proved sufficient, however, to prevent outlawed parties from experiencing rebirth as officially constituted, and therefore legally recognized, parties. Illustrations are furnished by the reappearance in Czechoslovakia of the German National Socialists as “Sudetendeutsche Partei,” of the French Croix de Feu as the French Social party (at present under judicial investigation), and of the Iron Guard in Rumania as an “All-For-The-Country party.” At any rate, if the prohibition of a party is coupled with the outlawing of military party activities, the actual danger of creating a double legality is alleviated to a considerable extent. Consequences of the dissolution of a party are eventually confiscation and liquidation of its property (Czechoslovakia (1933), France (1936), Great Britain (1936)).
In this connection, the situation in Switzerland again deserves attention. In March, 1934, a federal Public Order Bill-on the whole moderate and dealing only with actual gaps in existing federal legislation-was rejected by referendum. The proposal was aimed at subversive associations only in so far as they frustrated or impeded measures of the authorities by unlawful means or arrogated to themselves official powers, and it did not interfere with political parties proper. A similarly restricted cantonal measure failed in 1934 in Zurich, while in the canton of Ticino, obviously more exposed to fascist propaganda from neighboring Italy, an appropriate statute was carried in the same year.
In December, 1936, the Federal Council submitted to the federal parliament a new and far more sweeping draft of a resolution styled “For the Protection of Public Order and Safety,” which, if adopted, will provide Switzerland with an elaborate and comprehensive system of legislative and administrative defense against subversive activities, second in Europe only to the armory of defense existing in Czechoslovakia. The proposal was characterized as “urgent,” which, according to the Swiss constitution, implies that the bill, after acceptance by both houses of the federal parliament, should not be submitted to the referendum otherwise prescribed for federal bills. Conspicuous features of the draft proposal are the out- spoken and admitted discrimination against the Communist party which has been mentioned, and, in addition, the fact that it couples sound legislative devices for the protection of democracy against subversive movements with far-reaching provisions in- tended to prevent incitement to disaffection among the armed forces. Even reasoned criticism of the army can be punished severely. Public opinion, including large sections of the Right bourgeoisie, is strongly opposed to the measure, which manifestly goes far beyond the scope of protecting the legally constituted government against subversive methods and cuts deeply into Swiss liberal traditions.
In view of this widespread resentment, the fate of the proposal is at the time of writing doubtful. The National Council shelved discussion until the spring session of 1937, thereby denying the “urgent” character of the bill which the government, evidently shying from a popular vote, seems unwilling to waive. Although even during the debates in the Ständerat drastic modifications were adopted, separating partisan intentions from general protective measures, the bill might scarcely fare better than its predecessors if submitted to the people. In the meantime, it is evident that the Swiss democracy is not protected adequately against infiltration by the fascist technique of propaganda. It may be added to the record here that the present Federal Council is itself by no means beyond suspicion of pro-fascist leanings, and that the “Red-menace” scare has driven large sections of the Swiss bourgeoisie into an almost hysterical blindness toward the danger from fascism.
(3) All democratic states have enacted legislation against the formation of private paramilitary armies of political parties and against the wearing of political uniforms or parts thereof (badges, armlets) and the bearing of any other symbols (flags, banners, emblems, streamers, and pennants) which serve to denote the political opinion of the person in public. These provisions — too lightheartedly and facetiously called “bills against indoctrinary haberdashery” — strike at the roots of the fascist technique of propaganda, namely, self-advertisement and intimidation of others. The military garb symbolizes and crystallizes the mystical comradeship of arms so essential to the emotional needs of fascism. More or less identical “blouse-laws” were passed in Sweden (1933), Norway (1933), Denmark (1933), Finland (1934), the Netherlands (1934), Czechoslovakia (1933 and 1936), Switzerland (1933), Austria (1933), Belgium (1934), and, very belatedly and only under the provocation of deliberate disturbances of the peace caused by Mosley’s Blackshirts, in England (1936). For the sake of com- parison, it may be mentioned that prior to 1933 no stronghanded action was taken in Germany against political uniforms and the formation of private armies, partly because of political weakness and actual connivance of the authorities of the Reich, unwilling to discriminate against a “national” movement, partly because of constitutional jealousies arising from the police power of the states. A federal ordinance of the Reich-president, finally enacted in the spring of 1932, was repealed after less than two months. No action at all was taken in Spain; and in the Irish Free State, an anti- uniform bill was rejected by the Senate (1934), which led ultimately to the abolition of that body.
(4) While uniforms are usually the manifest sign of an organization operating on military lines, it is even more important for democratic states to forestall the formation of military bands or private party militias. Created originally as “stewards” for the protection of party rallies from undesirable interruptions and as bodyguards for the “leaders,” they have a tendency to grow into private armies for offensive purposes and to prepare for the ultimate seizure of power. Thus they constitute intolerable competitors of the state’s own armed forces. Many states, therefore, have prohibited the formation of private armies, party militias, and bands for any purpose whatsoever, as stewards or as assault troops or as bodyguards, as in Sweden (1934), Denmark (1934), Belgium (1934), the Irish Free State (1934), the canton of Zutrich (1934), France (1936), Holland (1936)-proposed also in Switzerland (1936). Equally detrimental to public authority are military exercises and military training not controlled and supervised by the state, even when practiced by men without uniforms. Consequently, the prohibition of party uniforms should generally be accompanied and supplemented by making military training by unauthorized persons illegal. Such statutes were passed in Belgium (1934), the canton of Zulrich (1934), Great Britain (1936), and France (1936).
(5) All democracies have taken legislative precaution against illicit manufacture, transport, wearing, possession, and use of fire- arms or of other offensive weapons of any kind, or they have strengthened already existing prohibitions (Czechoslovakia [1923], Belgium [1934], France [1936], Great Britain [1937]). In Switzerland, after provisions included in a federal statute had been rejected by the referendum of 1935, some of the cantons, e.g., Ztirich, Fribourg, St. Gall, and Basle City, stepped into the gap. The ultimate efficacy of such measures, however, continues rather dubious, even if police and army remain loyal to the state, because during these turbulent years of political strife in Europe large quantities of arms have changed hands in countries through smuggling, hiding, and secret storage. Complete internal and private disarmament is at best difficult when a general and official armament race is on; but a vigilant police force should be in a position to prevent at least any large-scale accumulation of arms in private hands.
(6) A series of new statutes deal with the abuse of parliamentary institutions by political extremism. Taken together, these measures constitute the first and, as yet, rather timid effort for safeguarding the parliamentary technique from being utilized for purposes of subversive propaganda and extremist action. When the Rexist “leader,” L6on Degrelle, in March, 1937, forced the resignation not only of the acting member of the Rexist party for the arrondissement of Brussels, but also of the substitute nominees on the Rexist party ticket, solely for the purpose of causing a by-election in which he could advertise as a legitimate party candidate the aims of the fascist party, the Belgian Parliament passed a law by which such frivolous by-elections are prohibited in the future.
A constitutional amendment in the Netherlands, adopted in April, 1937, by overwhelming majorities in both chambers, permits the exclusion from representation in political bodies (national, provincial, and communal) of adherents of subversive parties who advocate alteration of the existing form of government by unlawful means. Extremist groups may thus be deprived of their official spokesmen, the edge thereby being taken off subversive propaganda, particularly since another constitutional amendment, enacted simultaneously, restricts also the parliamentary immunity, which no longer can be used for treasonable activities. Although these amendments are still subject to acceptance by two-thirds of the new chamber, there is no doubt that this sound reform will reach the statute-book in due course.
Similarly, the new French press law, at present under consideration in the Senate, makes it impossible for legally responsible editors to escape prosecution for seditious propaganda or other unlawful activities under cover of parliamentary immunity. As in the Netherlands, the Czechoslovakian statute of 1933 declares the mandates of representatives of subversive parties forfeited, and in both countries such vacancies are not filled until the next election, in which, in Czechoslovakia, parties dissolved because of their subversive aims cannot participate.
(7) Other recently passed measures of democratic states aim at curbing excesses of political strife. The ordinary criminal codes or the common law of most countries (Sweden, Norway, Finland, the Netherlands, Great Britain, also Germany before 1933) contain provisions dealing with incitement to violence or hatred against other sections of the population. In addition, it became necessary to alleviate political acrimony when it was directed against per- sons or classes of persons or institutions usually singled out for attack by fascism. Many states have provided remedies by for- bidding incitement and agitation against and baiting of particular sections of the people because of their race, political attitude, or religious creed-in particular, because of their allegiance to the existing republican and democratic form of government (Czechoslovakia [1933], the Netherlands [1934], also the Canadian province of Manitoba [1934]).
While statutory protection was thus given, in the main, to religions exposed to the anti-religious propaganda of communists, such measures are intended also to prevent or mitigate the violent campaigning against Jews and Marxists. In this connection, it should be remembered that under the Weimar Republic, owing to the ill-advised yet inveterate attitude of the courts in interpreting the criminal code, Jews and Marxists as members of a group were left entirely without protection if they could not prove that the attack was directed personally against the complainant.
(8) Political strife carried by the fascists to the extreme of organized hooliganism made the fundamental right of assembly more or less a sham. Creating disturbances in or wrecking meetings of opposing or constitutional parties not only proved a favorite test
of the fighting spirit of militarized parties (“meeting-hall-bat — “Saalschlacht”), but also deterred peaceable citizens from at- tending meetings of their own selection. The task of the police to keep peace and order at meetings and public processions became increasingly difficult. The ordinary criminal codes being wholly insufficient to curb the deliberate tactics of extremist parties, more stringent legislation was introduced in Czechoslovakia (1923), Great Britain (1936), and proposed in Switzerland (1936). Many democratic countries, however, are still lagging behind.
A different problem arose when it became obvious that fascist demonstrations, processions, and meetings were held in districts where they could be considered only as a deliberate provocation because of the hostility of the bulk of the people living in these quarters. If, in such cases, disturbances occurred, they were actually created by the opponents. Exploiting this situation was one of the favorite methods of rising fascist movements whereby they could stand on the constitutional right of free processions and assembly. It was only reasonable that new legislation should, in various states, as in Great Britain (1936), and as proposed in Switzerland (1936), subject freedom of assembly to severe restrictions by the police or, as the case might be, by the political authority, in order to avoid provocation and subsequent clash between political opponents.
(9) Perhaps the thorniest problem of democratic states still up- holding fundamental rights is that of curbing the freedom of public opinion, speech, and press in order to check the unlawful use thereof by revolutionary and subversive propaganda, when attack presents itself in the guise of lawful political criticism of existing institutions. Overt acts of incitement to armed sedition can easily be squashed, but the vast armory of fascist technique includes the more subtle weapons of vilifying, defaming, slandering, and last but not least, ridiculing, the democratic state itself, its political institutions and leading personalities. For a long time, in the Action Frangaise, the finesse of noted authors like Daudet and Maurras developed political invective into both an art and a science.
Democratic fundamentalism acquiesced, because freedom of public opinion evidently included also freedom of political abuse, and even malignant criticism was sheltered. Redress had to be sought by the person affected through the ordinary procedure of libel, thereby affording a welcome opportunity for advertising the political intentions of the offender. Democracies which have gone fascist have gravely sinned by their leniency, or by too legalistic concepts of the freedom of public opinion. Slowly, the remaining democracies are remedying the defect. In some instances, the criminal codes are reformed in order to cope with the misuse of the press and of free speech to foster subversive propaganda or recriminations which affect the dignity of the republican and democratic institutions. New statutes were enacted in Finland (1931) and in the Nether- lands (1934). Some countries went so far as to enact laws forbidding the circulation of false rumors; illustrations are Czechoslovakia (1923), Finland (1934), Switzerland (1936), and the new French press law which at the time of writing is under consideration in the Senate. It was made an offense to disparage the existing political institutions, and to offend the dignity of the acting authorities and public organs, in Czechoslovakia (1923), Finland (1930 and 1934), Spain (1932), the Netherlands (1934); also proposed in Switzerland (1936). Especially the republican-democratic institutions and symbols were shielded against defamatory denunciation. All such restrictions on the use of free speech and free press were greeted by fascists with the outcry that the democratic state was violating the very essence of its principles of freedom. But the measures proved effective in curbing the public propaganda of subversive movements and in maintaining the prestige of democratic institutions.
Furthermore, vilifying campaigns against leading personalities of the existing regime had to be checked. In several states, it was made unlawful to indulge in defamatory utterances concerning the president of the republic (Czechoslovakia, 1923) or to detract from the dignity of the republican-democratic symbols (Czechoslovakia [1923 and 1936], Lithuania [1936]). In France, after the shameless campaign against M. Salengro had resulted in the suicide of the victim, the new press law, under parliamentary consideration in 1937, protects leading figures in public life-not only of the existing regime-against slander and libel. Evidence of truth is admitted, but even if a statement is proved, its malignant character makes the author liable to damages. If Belgium had a more stringent political libel law, M. Degrelle could scarcely have boasted that at one time more than two hundred libel suits were pending against him. As happens frequently in anti-fascist legislation, the border-line between unlawful slander and justified criticism as lawful exercise of political rights is exceedingly dim,
and the courts of democratic states are called upon to decide on legal grounds what in fact is a political problem for which a new ratio decidendi is yet to be discovered.
(10) More patently subversive is fascism’s habit of publicly exalting political criminals and offenders against the existing laws -a practice which serves the twofold purpose of building up the revolutionary symbolism of martyrs and heroes and of defying, with impunity, the existing order. It is still remembered that Herr Hitler, in August, 1933, when the rowdies of his party murdered, under particularly revolting circumstances, a political adversary in Potempa and were sentenced to death by the court, proclaimed his “spiritual unity” with them. Only Czechoslovakia (1923) and Finland (1934) have provided against this practice of morally aiding and abetting the political criminal.
(11) Experience offers ample proof that even a well-prepared armed rebellion of extremists from right or left is hopeless if the regular forces of the police and the army remain loyal to the legally constituted government. Therefore, one of the most important tasks of any self-respecting state is that of protecting its armed forces against infiltration by subversive propaganda. In many countries, political activity is altogether prohibited to members of the armed forces. The officers are usually less accessible to communist influence than the rank and file, while they are more inclined to sympathize with fascism because of its attendant nationalism. Thus, fascism is, on the whole, not unfavorably received by the officers of the armed forces. Although most countries possess criminal and military codes designed to curb incitement to dis- affection among the armed forces, or have introduced new legislation of this kind (e.g., Czechoslovakia [1923], Belgium [1934], Great Britain [1934], Holland after the revolt on the De Zeven Provincien [1933-34]), such enactments aim manifestly at communism alone, and very little has been done to restrain penetration of the military system by fascist indoctrination.
(12) The best preventive statutes are ineffective if the public officials in general, who, by controlling the key-positions in the administration and by guiding the execution of the laws, are responsible for law enforcement, are not thoroughly loyal to the state from which they draw their livelihood. Whether public officials should be allowed the same freedom of political association and activity as other citizens (as provided for in Article 130 of the constitution of the deceased Weimar Republic), is a debatable problem. To permit public officials, however, to endorse anti- democratic parties, or actively to support them, would be an un- due demand on the generosity of democratic fundamentalism. In a number of states, precautions have been taken against the participation of public officials and employees in any political party, as in Denmark (1932) and Finland (1926 and 1934), or in particular parties considered inconsistent with the democratic and constitutional structure of the state (Switzerland, federal statute [1932] and proposal of 1936, canton of Basle [1936], Lithuania [1934], Holland [1934]). The most drastic provisions designed to curb anti-constitutional activities of public officials of all kinds- including university and school teachers and persons drawing pensions from the state-are again found in Czechoslovakia (1933), where even the compulsory transfer of a judge to another service- position, if not dismissal, is permissible if he is convicted of participating in anti-democratic activities. From this viewpoint, the much-debated American statutes prescribing the teacher’s oath may win some favor among those who are duly alarmed by their possible anti-democratic implications.
(13) Finally, a specially selected and trained political police for the discovery, repression, supervision, and control of anti-democratic and anti-constitutional activities and movements should be established in any democratic state at war against fascism. By setting up special departments of the police, the Scandinavian countries and Switzerland, possibly also other states, herein followed the example of the dictatorial and authoritarian states. Moreover, in several states, collaboration of all citizens with the authorities in maintaining public order and safety is enjoined by making it an offense not to report to the competent authorities information concerning unlawful or subversive activities.
(14) In recent years of tension between the different doctrines, wide experience has been accumulated to the effect that fascist propaganda is pouring into democratic states from foreign countries with the deliberate purpose of undermining existing constitutional systems. International comity never was more flagrantly violated than by the missionary efforts of the fascist International in carrying political propaganda into other nations. Parrying of subversive activities directed against the state from outside is one of the fundamental, and at the same time most subtle, functions of the democratic states. It demands both delicacy and determination in order to avoid political and economic retaliation. Apparently, nothing can be done against radio propaganda from foreign transmitters which, in dictatorial countries, are of course agencies of the government. More available to the jurisdiction of the state under fire are police and administrative regulations prohibiting the political activities of foreigners or alien emissaries on the national territory (e.g., as speakers at meetings), the importation or circulation of foreign newspapers of anti-democratic character, the wearing of fascist symbols by foreign visitors or residents, and the prohibition of foreign party organizations within the borders. Neglect of such precautions led to the assassination of the National Socialist Swiss Landesfithrer in Davos in 1936. Appropriate provisions have been enacted in Switzerland, Czechoslovakia, Lithuania, in South West Africa (against Nazi propaganda), and in Cyprus and Malta (against Italian fascism). Switzerland, in 1935, after the kidnapping of the journalist Jacob by agents of the German Gestapo, passed a federal statute by which foreign officials are forbidden to arrogate to themselves, on Swiss territory, activities which are reserved to the national or cantonal authorities. In some instances, anti-espionage laws were passed (Czechoslovakia, 1923 and 1936, and Switzerland, 1935). In this connection, mention should be made of the financial support which, to all appearances, flows freely from the headquarters of the fascist International to fascist movements in democratic countries. Even if an effective control of anti-constitutional movements should be found possible, it seems beyond the power of the state to cut off the secret sources of financial contributions through the mediation of private individuals. In continental Europe, public accounting of political parties is completely unknown.
IV
Conclusion
As shown by this survey, democracy in self-defense against extremism has by no means remained inactive. At last, the terrifying spell of fascism’s basilisk glance has been broken; European democracy has overstepped democratic fundamentalism and risen to militancy. The fascist technique has been discerned and is being met by effective counteraction. Fire is fought with fire. Much has been done; still more remains to be done. Not even the maximum of defense measures in democracies is equal to the minimum of self-protection which the most lenient authoritarian state deems indispensable. Furthermore, democracy should be on its guard against too much optimism. To over-estimate the ultimate efficiency of legislative provisions against fascist emotional technique would be a dangerous self-deception. The statute-book is only a subsidiary expedient of the militant will for self-preservation. The most perfectly drafted and devised statutes are not worth the paper on which they are written unless supported by indomitable will to survive. Whether successful defense is ultimately possible depends on too many factors to be discussed here. National traditions, economic considerations, the social stratification, the sociological pattern, and the specific juridical technique of each individual country, as well as the trend of world politics, come into play. 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.
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. Salvation of
the absolute values of democracy is not to be expected from abdication in favor of emotionalism, utilized for wanton or selfish purposes by self-appointed leaders, but by deliberate transformation of obsolete forms and rigid concepts into the new instrumentalities of “disciplined,” or even-let us not shy from the word-“authoritarian,” democracy. Whether this goal is reached by transubstantiation of the traditional parliamentary techniques as in Belgium, Czechoslovakia, and, last but not least,
Great Britain, or by the straightforward devices of constitutional reform as in the Irish Free State or in Estonia, is perhaps of secondary importance when compared with the immediate end, namely, that those who control the emotionalism of the masses should be made, by constitutional processes, ultimately and irrevocably responsible to the people.
In this sense, democracy has to be redefined. It should be-at — least for the transitional stage until a better social adjustment to the conditions of the technological age has been accomplished — the application of disciplined authority, by liberal-minded men, for the ultimate ends of liberal government: human dignity and freedom.
In the meantime, since a majority of the people in all democracies under observation is still averse to the fascist mentality, the least that ought to be expected is that the governments in charge of the constitutional processes should be willing to meet and de- feat the fascist technique on its own battle-ground. The first step toward the much-needed democratic International is awareness of the common danger, coupled with recognition of what has been done in the way of defense by other nations in similar predicaments. To neglect the experience of democracies deceased would be tantamount to surrender for democracies living.
Obviously, no country whatever is immunized from fascism as a world movement. Once this incontrovertible fact is recognized, the question suggests itself as to whether legislative measures against incipient fascism are perhaps required in the United States. To investigate possibilities in this direction would be beyond the limits of the present study. If, however, the question be answered in the affirmative, a second problem becomes that of devising federal or state anti-extremist legislation in conformity with the elaborate fundamentalism of constitutional rights enshrined in the American constitution.
