Democracy and Counter-Extremism

The course begins with an introduction to its theoretical foundations. Besides reviewing democratic models and their justifications, important distinctions are drawn between positive, negative, and republican freedom and their significance for democratic theorizing. Such distinctions raise interesting issues for counter-extremism. Differing conceptions of liberty help to clarify how limitations on obstructive or incendiary speech might bolster collective self-realization. Similarly, notions of deliberative and participatory democracy explain how counter-extremism measures protecting truthful information or prohibiting certain groups and associations can be sensibly understood as ‘democratic’. Evaluating the legitimacy and effectiveness of counter-extremism measures requires that we first be precise about core political and legal concepts.

These concerns are given a practical footing by investigating Germany’s domestic counter-extremism practices. To protect its freiheitliche demokratische Grundordnung (‘free democratic basic order’), the German constitution and its domestic laws sanction a wide range of restrictive measures, including banning political associations and parties, mandating loyalty obligations from civil servants, prohibiting defamatory speech against the German state, and using its security intelligence agencies to monitor extremist activity. Among other concerns, these practices presume it is ‘democratic’ to restrict the free exchange of ideas—an assumption that has been often criticized as contradictory. At the very least, these expanding measures are susceptible to abuse—a risk intensified by the vagueness of the basic values of the German constitution. Efforts will be made to clarify the justifications for such provisions and how far they should go. Elaborating on the course’s foundational concepts, key issues include delimiting the core democratic elements to be ‘protected’, the relationship of these defensive measures to limits on constitutional amendment, and the threat levels required to prompt them.

This applied approach is reinforced by three post-9/11 developments in international governance. First, so-called ‘smart sanctions’ have been imposed on terrorism suspects to freeze their (legal) assets and financial means. Originally developed by the UN as a symbolic political action against states and state representatives, smart sanctions have devastating effects as a personalized counter-extremism measure. Besides being publicly registered, those affected are effectively immobilized and prevented from using their financial assets. Proving anything but ‘smart’ in practice, they arguably violate democratic due process and procedural justice guarantees widely protected in domestic and international human rights instruments.

Second, global efforts to identify terrorists and individuals involved in serious crime were intensified by the EU Passenger Name Record (PNR) Directive, which requires systematic collection, use, and retention of PNR data on airline passengers. By employing a preventive, risk-based approach, PNR arguably departs from established legal concepts that humans direct their behaviour in accordance with intelligible, reliable, and predictable norms, and conflicts with the principle of autonomy central to our understanding of democratic rule and legitimacy.

Third, the rise of ‘citizenship-security measures’—state counter-terrorism laws curtailing movement and reducing rights access through passport withdrawals or citizenship cancellation—present exceptional challenges to the constitutional foundations of our democracies. They have vast effects on individual rights, operate under diffused mechanisms of accountability, and affect the core of state legitimacy. It is thus crucial to understand how these measures arose, how they operate in practice (including their key challenges), and how they fit within state regulatory frameworks.

Finally, the course highlights two overlooked, but increasingly important, democratic rationales. The first relates to the evolving role of trust in facilitating collaboration involving state and institutional actors on international and supranational levels. For instance, while the notion of ‘mutual trust’ has established itself as the key integration standard in the current EU extradition scheme (ie the European Arrest Warrant), recent lessons from international cooperation on criminal matters suggest it is time to reassess the concept’s meaning and efficacy. At the same time, the dynamic interplay between trust and mistrust in interstate and interorganisational relationships in the area of EU intelligence sharing and oversight must be re-examined. The insights gained from trust theory in the social sciences will be helpful in interpreting EU law and assessing the impact of counter-terrorism measures on effective and continuous cooperation in this context.

The second marginalized rationale is democratic accountability, which despite its central importance for modern constitutionalism, has been slow to develop its own tradition of academic analysis. Though accountability does not necessarily infer democratic governance, democracy could not be conceived, let alone practised, without vast and complex webs of accountabilities between citizens and their representatives. Recent advances in public accountability scholarship have improved mapping and evaluation of state accountability dynamics, thereby exposing dysfunctional deficits or overloads of accountability regimes. This systems-inspired framework not only enhances our ability to interpret the significance of differing political and constitutional structures when evaluating counter-extremism measures, but optimizes jurisdictional fidelity to separation of powers and our capability to effectively hold to account growing manifestations of executive power.

Taken together, this course aims to help us better assess modern-day counter-extremism measures by tabling a comprehensive and more nuanced understanding of democratic interests, rights, and values.