Regulating Parties by Constitutional Rules in Liberal Democracies

Abstract

When establishing constitutional rules that regulate political parties, liberal democracies struggle between civil liberties—thus tolerating anti-democratic parties—and potential threats of democratic breakdown, which can be reduced by prosecuting and prohibiting anti-democratic parties. We suggest that liberal democracies must balance false positives and false negatives by combining ex ante and ex post regulatory mechanisms. By making use of a unique dataset of thirty-seven liberal democracies collected by the authors, we find empirical results consistent with our positive theory. An extensive review of the normative debate and case law provides additional qualitative support.

Keywords

• Political parties
• civil liberties
• democracy
• empirical legal reasoning
• false positives and false negatives
• normative debate
• case law
• militant democracy
• democratic backsliding