States of Emergency - Centre for Policy Alternatives

absolute superiority of the values of democracy, the protection of
which involved, “…the application of disciplined authority, by
liberal‐minded men, for the ultimate ends of liberal government:
Human dignity and freedom.” 175 He further argued, “Where
fundamental rights are institutionalized, their temporary
suspension is justiLied. When the ordinary channels of legislation
are blocked by obstruction and sabotage, the democratic state
uses the emergency powers of enabling legislation which if
implicitly, if not explicitly, are involved in the very notion of
government. Government is intended for governing…If democracy
believes in the superiority of it superior values over the
opportunistic platitudes of fascism…every possible effort must be
made to rescue it, even at the risk and cost of violating
fundamental principles.” 176
After the war, the principle of militant democracy (Streitbare
Demokratie) became one of the cornerstones of the new German
Basic Law and stands for the defence of the core values of the
German polity and its ‘free democratic basic order.’ As Kommers
observes, “…the Basic Law joins the protection of the Rechtsstaat
to the principle that the democracy is not helpless in defending
itself against parties or political movements bent on using the
Constitution to undermine or destroy it.” 177 Thus Article 18 of the
German Basic Law allows the forfeiture of rights from persons
175
Karl Loewenstein (1937) ‘Militant
Democracy
and
Fundamental
Rights’
31 American
Political
Science
Review
417 and 638 at p.658; see also
Karl Loewenstein (1938) ‘Legislative
Control
of
Political
Extremism
in
European
Democracies’ 38 Columbia
Law
Review
591 and 725
176
Loewenstein (1937), op cit., at p.432
177
Donald P. Kommers (1997) The
Constitutional
Jurisprudence
of
the
Federal
Republic
of
Germany
(Durham: Duke UP): pp.37‐38; see also
Currie (1994), op cit., p.213
103