The puzzle of "protected" democracy

The explosive rise of AfD in the elections in Germany prompts a reflection on a theme that is not without interest for us too: that of "protected democracy". This formula is usually used to indicate a model, inaugurated precisely in the Federal Republic.

A model that involves the compression of some fundamental freedoms in order to defend democracy. Article 9 of the German Basic Law, for example, prohibits not only "associations whose aims or activities conflict with criminal laws" (like Article 18 of our Constitution), but also those "directed against the constitutional order, or against the principle of understanding between peoples". Article 18 punishes with the loss of fundamental rights anyone who "in order to combat the democratic and liberal constitutional order" abuses the freedoms of expression, press, teaching, assembly, association.

There is also a rule specifically dedicated to "anti-system parties", Article 21, which allows for the declaration of unconstitutionality of all parties that "through their aims or the behaviour of their members aim to attack the democratic and liberal constitutional order, or to subvert it, or to endanger the existence of the Federal Republic of Germany". This set of rules, conceived in the aftermath of the Second World War to build a solid barrier against the resurgence of Nazism, does not seem to have worked, if today Alice Weidel's AfD is the second political formation and is sailing around 20%.

On the other hand, Article 21 has provided the legal basis for dissolving the Communist Party in the past and, in more recent years, also placing numerous members of the Left Party under observation. This was evidently not what JD Vance was thinking of when he denounced Europe's liberticidal drift, nor of the parliamentary resolution that, in 2019, classified the BDS (Boycott, Divestment, Sanctions) movement as "anti-Semitic", effectively outlawing it in Germany, or of the countless cases of censorship of critical voices towards the Israeli government (most recently, Francesca Albanese, UN special rapporteur on the occupied Palestinian territories, banned from the University of Munich). It will be said that all this represents a distortion of the original idea of ​​protected democracy. But the point is that establishing what "attacking the democratic and liberal order, or attempting to subvert it" actually means is not easy.

Nor is it possible to establish the precise boundaries of racist and "hate speech," which in many jurisdictions, including ours, are subject to criminal repression. Moreover, if Vance's defense of freedom of expression is grotesque, as well as instrumental, at least the passage in his Munich speech regarding the annulment of the elections in Romania raises a real problem.

The truly sensational and unprecedented decision by which the Constitutional Court invalidated the first round of the presidential elections, not for having certified the existence of fraud, but for (alleged) foreign interference in the electoral campaign, conveyed by TikTok, was received too lightly. As if the other platforms, owned by Western giants, were neutral spaces immune from any conditioning. To take it to the extreme, the dilemma we are facing today can be summed up in the contrast between the motto of Saint Just ("No freedom for the enemies of freedom") and that of Kelsen ("Whoever is for democracy cannot get caught in the fatal contradiction of resorting to dictatorship to defend democracy").

The dilemma is real. A democracy that is too tolerant of its enemies risks digging its own grave, allowing movements and parties to grow within it that are destined to overwhelm it. On the other hand, the risk of starting by banning racist speech and ending up by outlawing "class hatred" is real. Like the risk of getting used to the existence of a State truth, by virtue of which not only Holocaust denial could be considered a crime (as the law already provides in Italy), but also "denialism" of the foibe.

Then there is the issue of the effectiveness of rules aimed at banning words, gestures, symbols of "anti-system" movements and parties, which prove to be easily circumvented through various forms of mimicry. As the case of the rise of the AfD in Germany shows very well. But, above all, it is a question of not deluding ourselves that law can replace politics, and culture, in the truly immense task of building an alternative to the barbarism that is returning. Today, as yesterday, also through elections.