Germany

The principle of a ‘militant democracy’ is a fundamental element of German Constitutional Law. At least in the contentious jurisdiction of the Bundesverfassungsgericht (the Federal Constitutional Court) militancy is acknowledged as a significant feature of the German Constitution, the Grundgesetz (Basic Law) and of the political system. Conscious of the Weimar Republic’s failure to protect itself from destruction and thus against the backdrop of the ‘bitter experience of the doomed Weimar Republic’ (Klamt 2007: 138), the creators of the Basic Law installed, according to the prevailing opinion among constitutional law and political sciences scholars, the new democracy as a system ‘bound to values’ (wertgebunden, Tillmanns 2003); ‘vigilant’ (wachsam, Scheuner 1951: 140); ‘ready to defend itself’ (abwehrbereit, Schmitt Glaeser 1968: 31, 38); ‘ready to fight’, ‘well-fortified’, ‘battlesome’ (wehrhaft, Jahrreiß 1950: 88 et seq.); or even ‘militant’ (Dreier 1994: 751). Astonishingly, none of these attributes are to be found in the constitution’s text. The means available for an interpretation of the constitution according to the textual canons for literal exegesis therefore are meagre. Furthermore, the scope of denominations, ranging from the passivedefensive ‘vigilant’ to the offensive ‘battlesome’ or ‘militant’, clarifies the problem of giving shape to the principle of a militant democracy and of incorporating it into the ‘constitutional reality’. Nevertheless, Germany is ‘known to have implemented a fairly explicit conception’ of militant democracy ‘in its constitution’, and ‘the German case is appropriate to exemplify the concept as a current constitutional crystallization’ (Klamt 2007: 135). Therefore, the ‘militant democracy’ issue occasionally has been characterized as a ‘German tradition’ or even a ‘German problem’.1