Herman Heller on Democratic Self-defence: Militant Democracy Revisited

Abstract

The debate on militant democracy is very much focused on whether legal restrictions against antidemocratic parties are justified. By contrast, this paper moves beyond the legal exclusion dilemma, and gestures towards a social conception of democratic self-defence. It does so by examining Hermann Heller’s ideas on the origins and solutions to antidemocratic threats. Arguing against Schmitt’s ‘authoritarian liberalism’, Heller pointed at the autocratic and decisionistic logic of restricting participation rights in the name of liberty. Not only did this programme negate rather than defend constitutionalism and democracy, he said, it also promoted a liberalisation of the economy at the expense of social welfare. In pretending to make social concessions when in reality it subordinated all economic life to the state, authoritarian liberalism was comparable to Italian fascism. The antidote for Heller was a social state based on the rule of law (sozialer Rechtsstaat). Such a state would be governed by laws, which would draw their validity from the representation of all social classes in law-making. It would also produce loyal citizens through an economy that catered for the needs of the many. But above all, a social Rechtsstaat would create a genuine sense of community by integrating all members of society into a common political culture.