Policy Responses to the Radical Right in France and Germany: Public Actors, Policy Frames, and Decision-Making [1 ed.] 0367347393, 9780367347390, 9780429327599

Table of contents :
Cover
Half Title
Series
Title
Copyright
Contents
List of figures
List of tables
Acknowledgements
Introduction
1 Responding to right-wing radicalism: a policy matter
2 The radical right and its opponents in France and Germany: contextualisation and evolutions (1950–2017)
3 Towards the identification of national frames of responses to right-wing radicalism
4 Towards the identification of multiple frames among actors responding to the radical right: between ideas, institutions, and interests
5 The decision-making process of policy responses to the radical right
6 Banning right-wing extremist associations in France and Germany: decision-making process and outcomes
Conclusion
Index

Citation preview

Policy Responses to the Radical Right in France and Germany

Based on research fieldwork conducted in France and Germany, this study seeks to explain how public actors have taken part in the regulation of the expression of right-wing radicalism. The author compares these two neighbouring countries which have framed the struggle against right-wing radicalism differently. German political and state actors have constructed a public policy responding to political radicalism, whilst in France, the radical right is primarily handled in the political arena. The text evaluates how these two Western European democracies address the paradox of tolerance (i.e. the fact that liberal democracies may restrain rights they value, such as freedom of speech, in order to repress intolerant forces that threaten democracy). This book is core reading for scholars and students interested in the spread of far-right politics in contemporary democracies. Bénédicte Laumond is a post-doctoral fellow on the French-German Joint Project (ANR-DFG) Penal Cultures in France and Germany and a lecturer at the University of Versailles, France.

Routledge Studies in Extremism and Democracy Series Editors: Roger Eatwell University of Bath

Matthew Goodwin University of Kent.

Founding Series Editors: Roger Eatwell University of Bath

Cas Mudde

University of Antwerp-UFSIA. This new series encompasses academic studies within the broad fields of ‘extremism’ and ‘democracy’. These topics have traditionally been considered largely in isolation by academics. A key focus of the series, therefore, is the (inter-)relation between extremism and democracy. Works will seek to answer questions such as to what extent ‘extremist’ groups pose a major threat to democratic parties, or how democracy can respond to extremism without undermining its own democratic credentials. The books encompass two strands: Routledge Studies in Extremism and Democracy includes books with an introductory and broad focus which are aimed at students and teachers. These books will be available in hardback and paperback. The People and the Nation. Populism and Ethno-Territorial Politics in Europe Edited by Reinhard Heinisch, Emanuele Massetti and Oscar Mazzoleni The Anti-Islamic Movement Far Right and Liberal? Lars Berntzen Routledge Research in Extremism and Democracy offers a forum for innovative new research intended for a more specialist readership. These books will be in hardback only. Populism and Collective Memory Comparing Fascist Legacies in Western Europe Luca Manucci Policy Responses to the Radical Right in France and Germany Public Actors, Policy Frames, and Decision-Making Bénédicte Laumond For more information about this series, please visit: www.routledge.com/politics/ series/ED

Policy Responses to the Radical Right in France and Germany Public Actors, Policy Frames, and Decision-Making Bénédicte Laumond

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 Bénédicte Laumond The right of Bénédicte Laumond to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Laumond, Bénédicte, author. Title: Policy responses to the radical right in France and Germany : public actors, policy frames, and decision-making / Bénédicte Laumond. Description: Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Extremism and democracy | Includes bibliographical references and index. Identifiers: LCCN 2019055304 | ISBN 9780367347390 (hardback) | ISBN 9780429327599 (ebook) Subjects: LCSH: Right-wing extremists—Government policy—France. | Right-wing extremists—Government policy—Germany. | Freedom of speech—France. | Freedom of speech—Germany. Classification: LCC HN440.R3 L36 2020 | DDC 303.48/40944—dc23 LC record available at https://lccn.loc.gov/2019055304 ISBN: 978-0-367-34739-0 (hbk) ISBN: 978-0-429-32759-9 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

Contents

List of figures List of tables Acknowledgements

Introduction

vi vii viii 1

1 Responding to right-wing radicalism: a policy matter

16

2 The radical right and its opponents in France and Germany: contextualisation and evolutions (1950–2017)

51

3 Towards the identification of national frames of responses to right-wing radicalism

82

4 Towards the identification of multiple frames among actors responding to the radical right: between ideas, institutions, and interests

109

5 The decision-making process of policy responses to the radical right

152

6 Banning right-wing extremist associations in France and Germany: decision-making process and outcomes

185



Conclusion

214

Index

225

Figures

1.1 Illustration of the basic explanatory framework of actor-centred institutionalism 1.2 Analytical framework combining the actor-centred institutional approach and a frame analysis 4.1 Constellation of public actors without repressive powers and third-sector actors involved in the formulation of responses to the radical right in Germany 4.2 Constellation of public actors without repressive powers and third-sector actors involved in the formulation of responses to the radical right in France

21 22 121 122

Tables

0.1 Arbitration between French and German academic features (in bold) 0.2 French-German structural differences 1.1 Terms used by respondents to refer to (part of) right-wing radicalism 1.2 Matrix of the radical right in France (F) and Germany (D) 1.3 Conceptual reconstruction of “Defence of Democracy” 1.4 Repressive measures against the radical right in France and Germany since 1945 1.5 Preventive responses to the radical right 1.6 Summary table 1.7 Interviews conducted in France and Germany 2.1 Actions taken against the radical right since 1950 in France 2.2 Actions taken against the radical right since 1950 in Germany 3.1 Constitutional provisions protecting the democratic order 3.2 Prevention measures in Germany per type 4.1 Influence of the factors in forging policy frames on (non-)state actors responding to right-wing radicalism 4.2 Distribution of the actors responding to the radical right in France and Germany 4.3 Results 5.1 Factors influencing the decisions of policy actors in France and Germany 6.1 French-German case study 6.2 Interviews conducted in France and Germany on associations’ bans 6.3 Central factors in decision-making of political actors 6.4 Factors explaining the outcomes of bans in France and Germany 7.1 Policy frames identified in France and Germany 7.2 Factors influencing the decision-making of policy actors in France and Germany

7 8 25 27 33 36 38 39 42 62 75 84 95 110 111 147 180 186 188 208 210 215 216

Acknowledgements

This book is the product of a doctoral research that I have developed, from 2013 to 2017, at the Europa-Universität Viadrina and at the Université de Versailles. This project has required plenty of support, endurance, and mostly patience. The huge support that I have received from many sides will remain invisible in the course of this book. I intend to make visible the persons and institutions that accompanied me along this rewarding journey. First of all, I would like to address my special thanks to my two supervisors, Fabien Jobard and Michael Minkenberg. Fabien Jobard’s expertise and connections among security authorities were invaluable in helping me enter and understand the French fieldwork better. Many thanks for the encouragement, unfailing support, and constant availability – before and after the PhD. This kind of supervision is truly rare. The strength and relevance of German right-wing radical studies is probably one of the most determining reasons that convinced me to first settle my PhD project in Germany. My integration into German but also international radical studies has been greatly facilitated by Michael Minkenberg’s support and advice. His expertise on right-wing radicalism and his high scientific expectations pushed me to strengthen the arguments made in the different chapters of this book. These four years as a PhD candidate would surely not have been as rich as they have been without the support that I obtained from the following institutions: Centre Marc Bloch, Centre de Recherche sur le Droit et les Institutions Pénales (CESDIP), and the Europa-Universität Viadrina. These three academic institutions have given me the possibility to conduct scientific research and to integrate the French and German academic environments with good material conditions. I am all the more grateful that such support is relatively unusual for PhD candidates. I am grateful to all those who read my prose, even some rough chapter versions: members of the Frankfurter Forschungskolloquium who commented on segments of my chapters; the centristes; and the members of the French-German research project Saisir l’Europe who showed great support in helping me combine French and German academic expectations. Many thanks as well to all my colleagues and friends, especially in Centre Marc Bloch, where I spent the last three years, for having been supportive at all times, including in periods of stress and uncertainty. I also would like to express my thanks to the CESDIP’s team for their support during and after the PhD.

Acknowledgements ix These years dedicated almost entirely to research would not have been thinkable without the financial and ideational support of the Heinrich Böll Foundation between October 2013 and September 2016. This opportunity enabled me to articulate academic interests with my political and social commitment. Similarly, the scholarships obtained from the Europa-Universität Viadrina and from the Centre Marc Bloch during the fourth year of my PhD truly helped me to carry out my endeavour in good conditions. I also warmly thank the CESDIP and the Centre Marc Bloch for covering the costs of the proofreading. Bi-national and international research projects are incredibly enriching, but the linguistic challenges exist and will remain. That is why I want to address sincere thanks to Riley Ertel for his professional English-language proofreading. Any remaining omission or error is mine. Funding a PhD in comparative political science that relies on fieldwork has an additional financial cost. Thus, I want to thank the Université Franco-Allemande, the DAAD, Centre Marc Bloch, and the CESDIP for funding my research and conference trips over the last four years. This financial support enabled me to conduct truly empirical research and to discover what academic life looks like; Small World, after all, is not only a novel! I shall not forget to express my gratitude to the respondents in both countries. It was a challenge to reach some of them and organise meetings, but all of them provided me with precious information that was needed for the elaboration of this study. I finally want to thank my family – especially my parents, Francis and Françoise – for being invariably present and for making this achievement possible. My thanks also go to all of my dear friends who stayed supportive by my side even when I was away. I especially think of Léa and Solène, who witnessed the critical moments in the revision of this manuscript and who kindly helped me in the fine-tuning work. Last but definitely not least, thank you so much, Hugues, for your genuine support and your infinite belief in me. My work is naturally dedicated to you all.

Introduction

[Interviewer] How did you come up against the issue of right-wing radicalism when you became general prosecutor? [Respondent] I  began dealing with this issue in December  1993 as soon as I  became the head of the prosecution department in Neuruppin. The former concentration camps Sachsenhausen and Ravensbrück are in this jurisdiction. There had already been incidents of this nature. It was very important for me to prosecute offences with a right-wing extremist motivation. And I put in much effort in developing a coherent enforcement strategy against rightwing extremism, with lists of persons who had repeatedly committed criminal offences so when they committed another offence, we reacted with harsher penalties. . . . And when I became general prosecutor in 1996, I thought, now we need to intensify the prosecution against right-wing extremists state-wide. (Interview conducted with a German prosecutor, Germany) [Interviewer] I am interested in knowing more about how the French and German states respond to what I call the radical right, what police officers often call the ultra-right and what prosecutors— [Respondent] Do not call [anything]. (Interview conducted with a French prosecutor, France) Actually, we [administrative judges] do not put a label on political cases. Therefore, one cannot say that we adjudicate cases concerning one particular political ideology. . . . If you look in the table of contents of the Lebon volumes [selected decisions of administrative courts], there is no section called ‘extreme right’. (Interview conducted with a French administrative judge of the highest administrative jurisdiction, France) These statements by three respondents interviewed for this book show two contrasting ways of addressing right-wing radicalism. Whereas the German prosecutor expressly names ‘right-wing extremism’ as an issue that he addresses, the two French magistrates, in contrast, do not apply a label to the central issue of this book. In fact, the French respondents unknowingly refer to a dilemma that

2  Introduction has interested scholars of a variety of disciplines from philosophy to public law. Addressing state responses to right-wing radicalism is an issue that underpins one central problem: how can states characterised by a liberal and democratic system develop responses, including repressive ones, to a political phenomenon? This dilemma, the paradox of tolerance, was clarified by Popper (1945),1 but the question of whether or not to tolerate the intolerant (Rawls, 1971) remains a sensitive and fiercely discussed issue in current policy-making. For instance, the discovery of the right-wing terror network “Nationalsozialistischer Untergrund” (NSU) in 2011 propelled the issue of right-wing terrorism to the centre of public and political interest in Germany. A thin connection with the right-wing extremist party “Nationaldemokratische Partei” (NPD) appeared, which triggered a large political discussion around the possibility of a second application to ban the party.2 Whereas popular parties such as the Christian Democrats and the Social Democrats largely approved the application of the ban, other governing parties such as the Liberals and the Greens did not, either for pragmatic reasons or out of liberal considerations (Backes, 2018). In France, “Bastion Social”, a right-wing extremist social movement founded in 2017, made itself famous for squatting in abandoned buildings and for opening businesses (bars, tattoo shops, and so on) to establish a structured right-wing subculture in urban areas. Due to the violence of some of its activists, the movement was soon monitored by the intelligence service, and the question of whether Bastion Social should be proscribed arose. The movement was prosecuted for various criminal offences and eventually banned by the government in 2019. Although this event indicates that liberal democracies do formulate responses to various forms of political radicalism, their delimitation and limits are still debated. The most salient discussions in public discourse are often centred around militant measures, such as bans and prosecution, even though a variety of responses to political radicalism exists. The discussion that I present in this book is theoretically grounded in the idea that liberal democracies deal with this phenomenon in different ways (Pedahzur, 2001; Malkopoulou and Norman, 2018). Among the different kinds of political radicalism that may be targeted by liberal democracies, this study focuses on right-wing radicalism. Minkenberg provides a minimal definition of the radical right as a “political ideology revolving around the myth of a homogenous nation – a romantic and populist ultra-nationalism hostile to liberal, pluralistic democracy, with its underlying principles of individualism and universalism” (2013, p. 11). As the previous examples show, radical right actors may be divided into different organisational forms, political parties, social movements, and a subcultural milieu (Ibid.).3

Policy measures against right-wing radicalism In the French and German contexts, responses to the radical right encompass a myriad of public reactions emanating from different state and non-state actors. In both countries, trials of Holocaust deniers involve both the police and criminal justice and are widely covered by the media. A recent example in France is the

Introduction  3 highly publicised prosecution of the stand-up comedian Dieudonné for repeated anti-Semitic statements. Similarly publicised are the bans on right-wing associations which are issued by the government but also involve administrative law judges in both France and Germany. Responses to the radical right also entail programmes developed jointly by public authorities and non-state organisations dedicated to preventing the spread of right-wing radical ideology. In short, there is a great variety of responses formulated and implemented by different policy actors: administrative or criminal judges, security authorities, political actors, non-governmental organisations, and non-repressive ministries. In many cases, each response requires the involvement of a range of actors before it can effectively be implemented. Given the diversity of responses and the various constellations of policy-makers, how do states use the different policy instruments at their disposal to establish a political order in liberal democracies? This is an old question that has been rediscovered recently. The issue of policy responses to political radicalism was first addressed by the seminal work of German scholars who introduced and discussed the concept of militant democracy (Loewenstein, 1937; Mannheim, 1943), which was conceived as a means of preventing liberal democracies from anti-democratic attacks. Early research on militant democracy was developed in the context of European fascism and therefore aimed to produce democratic models that could be enforced during the reconstruction of European societies after the war. There is a renewed academic interest in militant democracy and more generally in responses to political radicalism (Capoccia, 2013) in the present context, which is characterised by the electoral success of radical right-wing parties that are still perceived by most Europeans as hostile to the liberal democratic order. This illustrates the acute tension between political tolerance and democratic self-defence. The question of how Western European states address the paradox of tolerance is of scientific interest, as finding answers to it can help illuminate the dynamics leading to the establishment of a political order in liberal democracies. Minkenberg (2017) argues that the challenge of responding to right-wing radicalism traditionally spurred conflicts within German society and led to the juridification of political problems related to the radical right. One illustration of this is the renewed application to ban the right-wing extremist party NPD in 2013, which was rejected by the Constitutional Court in 2017. Party bans were often brought up in order to repress the most extremist expressions of right-wing radicalism. By defending a German militant democratic vision of democracy and rejecting negative republicanism,4 constitutional judges rejected the possibility of proscribing an electorally and structurally weak party (Backes, 2018) and underlined that other types of measures were available for responding to the NPD. This suggests that there are conceptual logics, which evolve behind the use of measures against political radicalism. Moreover, this example invites us to explore the choices made by different policy-makers in order to assess the influence of historical, political, and institutional logics. In doing so, responses to right-wing radicalism can be considered as a policy field, which enables the use of the largely underused analytical tools of policy studies in the field of right-wing studies.

4  Introduction Public policy can be defined as the process leading to public programmes, usually with explicit objectives (Muller and Surel, 1998). Policies are social constructions and the expression of the power of the state. In addition, a policy is not only a series of responses but rather a space constituted by interactions that goes beyond a legal framework; a policy is a “local order” (Friedberg, 1993). In order to understand this space, one must know not only the theoretical content of policy responses against right-wing radicalism but also the conditions under which they may be used, the role of policy-makers and of their constellations, and finally the implication of the target population in this process (in this case, the radical right). Certain questions follow from these remarks. First of all, how do the different policy actors who address the radical right frame the issue? By assessing the regulation of political radicalism through the perceptions and actions of policy actors, it is possible to explore how states have or have not depoliticised the regulation of political radicalism. Second, which factors influence the capacity of policymakers to make decisions? How can one explain why some responses are used and others are not? This book aims to explore responses to right-wing radicalism through the prism of policy studies in order to understand the rationale behind the construction of a political order in France and Germany.

A French-German scientific undertaking This book is the result of a French-German scientific undertaking. This fact entails certain theoretical and methodological choices that I  have made to explore the regulation of right-wing radicalism in liberal democracies. Policy studies in France have been influenced by a variety of approaches. First of all, in the 1980s, policy studies in France were strongly influenced by several attempts to investigate the state in action (l’Etat en action, Jobert and Muller, 1987) in a comparative way since these scholars assumed that public policies could only be understood comparatively (Boussaguet and Dupuy, 2014). This approach contrasted with the rest of French political science, where studies mostly focused on single case studies (Favre and Legavre, 1998). In addition, Jobert and Muller popularised the cognitive framework throughout the 1990s in which the ideas and perceptions of policy actors were reintroduced to explain changes in various policy fields. Second, a “body of research was initiated post1968 by a group of critically oriented administrative lawyers” who developed “a sophisticated critical analysis of public administration, shaping the understanding of public policies” (Le Galès, 2011, p.  203 ff.). These studies underscored the political role of state actors in the development and implementation of policies. In this book, which explores how policy-makers regulate right-wing radicalism, the analysis has been influenced by this strand of literature. Third, these critical law and public policy scholars worked “on the activities of states, the concrete dispositifs of public policy” (Ibid.). Deriving from a Foucauldian approach in which law-making and the technical procedures of power are central elements, this strand of literature contributed to the development of the sociology of policy instruments. Policy instruments are technical apparatuses which carry a concrete

Introduction 5 conception of the relationships between politics and society (Lascoumes, 2004). In this book, I will examine a series of instruments used to respond to the radical right. There are two groups of policy instruments to address right-wing radicalism: legislative and regulatory instruments (repressive measures) and agreementbased and incentive-based instruments (preventive measures) (Lascoumes and Le Galès, 2004, p. 361). In this book, I will inquire into how public actors strike a balance between these two approaches and will explain how political radicalism is regulated.5 In sum, these three strands of literature, cognitive framework, critical analysis of public administration, and analysis of policy instruments, which shaped French political science, also influenced my research. French sociology has also had a substantial influence on my project. Empirical qualitative research has been strongly consolidated in the last few decades since field research became a central component of research in French social science (Corcuff, 2011). In this respect, the methodology that I have developed relies on this scientific tradition. Semi-structured interviews were conducted among public actors in charge of addressing right-wing radicalism. Their perceptions as well as their experiences were explored and will be considered in the analysis as knowledge objects and even research instruments (more details in Chapter 1). This book was also shaped by German research in political science, of which I  have identified three distinctive features. First, right-wing radical studies are an established sub-field of German political science. Since the 1980s, research questioning the relationship between democracy and extremism has thrived. As will be presented in Chapter  3, a controversy emerged on the ways to address right-wing radicalism. Broadly, there are two conflicting positions. On the one hand, two political scientists, Uwe Backes and Eckard Jesse (1989), conceptualised political extremism, which is per se in opposition to the democratic constitutional state (extremism theory) and should therefore be countered. This approach was vigorously criticised in the 1990s by other political scientists working on right-wing radicalism (e.g. Jaschke, 1991; Butterwegge, 1996; Neugebauer, 2001; Stöss, 2008) who advocated for stronger differentiation between different political families (mostly left-wing extremism and right-wing extremism) encompassed in the concept of extremism and pointed out the limits of a perspective which they believed fails at precisely determining which movements are extremist and which are not (Druwe and Mantino, 1996). Other scholars insisted that the rationale behind the actions of repressive actors such as the police, the intelligence service, and the justice system was not consistently explained and assessed (Minkenberg, 2005). This academic controversy led to growing interest in strategies against right-wing radicalism at both the federal and the local level. Additionally, there have been numerous exchanges between state authorities and scholars conducting studies on the responses implemented against right-wing radicalism, leading academia to play a non-negligible role in the responses enforced. This is in line with Foucault’s argument (2007) that German universities have been a reservoir for public administration since the 18th century. With the development of cameral sciences, universities became centres for the production of knowledge, enabling the state to become more powerful (Laborier, 2011). This tradition is strong when

6  Introduction it comes to radical right-wing studies; scholars have become influential in the evaluation of state programmes against right-wing radicalism. This book is built on this same scientific context: my primary objective was to transpose questions developed in the German academic context to my comparative research design and therefore compare – on the basis of the German experience – how two political systems with different socio-political features, but which remain comparable, have established a political order in which right-wing radicalism is framed as a political adversary. Second, the literature evidences a methodological divide in German comparative politics between “classical comparison” and “culturalistic comparison” (Beichelt, 2005). The two methods exist concurrently even though comparative politics are dominated by classical comparisons. The classical approach generally presents large-n comparative designs. This kind of research primarily focusses on building models, which are generalisable, and posits that contexts are stable and that the variables are comparable across country cases. By contrast, the culturalistic approach promotes the exploration of cultural and contextual features in order to build comparability between a few cases. Concerning policy responses to rightwing radicalism, adopting a culturalistic approach means asking questions such as: how can one compare repression of right-wing radicalism by judges given that justice actors are assigned varying importance in the repression of political radicalism in each country? The culturalistic approach posits that repression through justice can be fruitfully compared only if the specificities of justice systems are taken into account; the comparison relies on cases rather than models. In so doing, the culturalistic approach can thoroughly explain changes or outcomes, which may be the consequence of complex mechanisms that require analytical depth. In sum, this approach focusses on what cannot be explained by the regression models of classical comparisons (Ibid.). Culturalistic approaches in Germany are influenced by cultural studies and are likely to integrate symbols and their interpretation by actors in the research design. The methodological choices made for the present research have been influenced by the culturalistic approach. Third, German policy studies were influenced by American political science, which contributed to the rapid development of this sub-field of political science in Germany (Giraud, 2002). In particular, the Steuerungstheorie (governance theory), promoted by the work of Renate Mayntz and Fritz Scharpf, played a significant role in German political science. Steuerungstheorie focusses on the regulation powers of policy actors, on their strategies, on the constellations of actors, and finally on their institutional constraints in order to identify the conditions of good governance (Giraud, 2001). Scharpf (1994) developed the notion of systems of negotiation, the capacity of interdependent actors to coordinate their actions, at a time when state institutions were in decline in Germany. Policy studies progressively questioned the regulation powers, or lack thereof, of states towards social and economic actors, and integrated non-state actors into the analysis of policy-making. Political scientists assumed that power was divided among actors from different social groups, which led them to explore how actors with different perspectives impacted the policy process. As suggested by Giraud (2009),

Introduction  7 Table 0.1  Arbitration between French and German academic features (in bold) French tradition

German tradition

Right-wing studies

Right-wing radicalism investigated mostly with tools of political party research

Studies on right-wing radicalism as an established sub-field of political science

Methodological approach

Empirical research

Classical approach in comparative politics (dominant) Culturalistic approach (minor)

Policy studies

Critical political science / Cognitive framework / Policy instruments

Influence of the control theory

Expected contribution of this research to the field of right-wing studies - Reconcile right-wing studies with policy studies - Assess how the well-researched German case can inform the understudied French case - Combine elements of the rational-choice theory with a constructivist approach

this innovative approach encouraged the combination of traditional theoretical approaches such as the rational-choice theory with more constructivist perspectives. Combining apparently opposing theoretical approaches in this manner seemed very suitable for my research, as it allows for a productive combination of French and German scientific traditions (Table 0.1).

Comparative character of the study What is the added value of comparative policy studies? Several criticisms have been made of comparative approaches. To begin with, some comparisons are criticised for interpreting empirical evidence that is partial to the hypotheses in hand. Another pitfall observed is artificial comparison, whereby national cases are conveniently accumulated without having been properly constructed prior to the comparative analysis (Boussaguet and Dupuy, 2014). In order to avoid these shortcomings, this section explains how comparability between the chosen cases was established. This research can be understood as a comparative case-oriented analysis where each case study is defined as an in-depth study of a single unit (Gerring, 2007). Selecting cases that would make for a fruitful comparison was of crucial importance. I chose two European countries, France and Germany, and followed the method of agreements (Mill, 1843), which consists of comparing cases having in common a target phenomenon as well as a shared set of causal factors, although they may vary in other ways that might have seemed causally relevant (Skocpol, 1979, p. 36). Here, the target phenomenon to be explained is the regulation of right-wing radicalism: both countries face right-wing radicalism and seek to regulate this political phenomenon. I have chosen country cases that are broadly comparable across time. Marc Bloch (1928, p. 19) underlines the relevance of comparing neighbouring countries:

8  Introduction “this is to make a parallel study of societies that are at once neighbouring and contemporary, exercising a constant mutual influence, exposed throughout their development to the action of the same broad causes just because they are close and contemporaneous, and owing their existence in part at least to a common origin”. Both France and Germany are stable liberal democracies and share a legal framework as EU member states. Besides these general traits, France and Germany both belong to conservative corporatist legal models, which ensures further comparability of the two cases. Finally, both states are rather interventionist. When responding to the radical right, the French and German states have comparable militant democratic tools at their disposal, such as criminal proceedings or association bans (see a classification of responses in Chapter 1) and both freely make use of them. Yet, there are also diverging factors between France and Germany which affect the regulation of right-wing radicalism: the characteristics of the radical right, political and institutional features, and, finally, different treatments of an authoritarian past. As for the organisation of the radical right, Germany is characterised by a high level of militancy in small subcultural groups (Minkenberg, 1998; further details in Chapter 2). However, radical right-wing parties were rather unsuccessful at the national scale, even if they periodically won seats in several German states, until the recent emergence of the party Alternative für Deutschland. Another peculiarity of the German radical right is its violence. The disclosure of the German terrorist group NSU in 2011 and the more recent assassination of the CDU politician Walter Lübcke reflect the existence of well-structured underground right-wing violent networks that pose a challenge to state regulation and repression of the radical right. By comparison, the French case is marked by a strong, successful, and well-implanted radical right party, the Rassemblement National (RN, formerly Front National) (Birenbaum, 1992; Mayer and Perrineau, 1996; Dézé, 2012). The RN quickly absorbed several right-wing groups which originally belonged to the right-wing subculture. Therefore, the cultural scene is not well developed in France, and political violence is less meaningful than in Germany (Minkenberg, 1998, see Table 0.2). As for the place of the RN within the political arena, mainstream political parties have established a cordon sanitaire strategy6 and have refused to make alliances with the party, at least at the national level. Locally though, political alliances are (rarely) concluded between the Conservative Party and the radical right (Camus, 2009).

Table 0.2  French-German structural differences Unitary government

Federal government

Strong sub-cultural milieu and (historically) weaker political party

Sweden

Germany

Strong party from the radical right and weaker sub-cultural milieu

France

Austria

Introduction  9 Regarding political and institutional features, the French state is centrally organised with a unitary government, whereas German federalism is a historical feature and has given birth to 17 Parliaments with specific powers. Therefore, German federalism is characterised by its policy diversity between Länder (Schmidt, 2016). In contrast, France has a state-centric character (Cole, 2008, p. 27) which “emphasises the organisational pre-eminence and legitimacy of the state” (Cole, 2005, p. 113). Despite a series of decentralisation reforms which devolved more power to regional assemblies, French local authorities still do not have major powers in any repressive policy area (Table 0.2). The federal/unitary difference generates a second level of differences regarding German and French policymaking. German policy-making is characterised by a political organisation with vertical and horizontal divisions of power (Giraud, 2004). Moreover, organised social groups tend to be associated with policy regulation. High political powersharing is materialised in Germany by “negotiations in party coalitions, amongst state and federal administrations as well as in bicameral legislative processes, and between administrative departments and societal interest associations” (Czada, 2009, p. 75). Similarly, political actors are mostly understood as actors providing a framework enabling organised social actors to express their capabilities of autoregulation (Giraud, 2004). In this book, I will discuss the role and the integration of different policy-makers in the regulation of right-wing radicalism. In France, state and political actors play an overriding role in policy-making, relatively independently from social forces. Comparative political scientists highlight the traditional autonomy and grip of state and political actors over French society (Kriesi, 1994; Roth and Rucht, 2008), which is strengthened by the unitary government and majoritarian system (Lijphart, 1999). In case of a government and a president of the same party, which is usual in France, political opposition and opponents from civil society are reduced to impotence within institutions (Giraud, 2004). They can only express themselves outside of institutions, mostly under the form of protest movements, which starkly contrasts with the German case (Cole, 2008).7 Finally, the historical background of France and Germany is an additional difference in the state responses to political radicalism. On the one hand, Germany experienced an authoritarian past with the National Socialist regime and the German Democratic Republic. The state was rebuilt in the post-war period, leading to the drafting of a new Constitution and a process of coming to terms with the past (Vergangenheitsbewältigung). On the other hand, the French state is usually not seen as a country case strongly influenced by an authoritarian past. However, this is a misconception. In the post-war period, Charles De Gaulle legitimised the myth that most French people resisted Nazi occupation (Rousso, 1987). The official version of history constructed after World War II long hid the reality of the legacy of the authoritarian Vichy regime that ruled over France between 1940 and 1944.8 In addition, French colonial history, characterised by racist and authoritarian regimes and wars of decolonisation, still has not been satisfactorily processed in French society (Bancel, Blanchard and Lemaire, 2005). Policy actors hardly perceive this authoritarian past as part of the state legacy. For all these reasons, the mere dichotomy between the authoritarian and non-authoritarian past cannot be taken as

10  Introduction a discriminating factor in the French-German comparison. However, state actors’ perceptions of the past authoritarian experiences are indeed different in France and Germany. Downs (2012) observes that historical memory strongly affects the arsenal of responses to political radicalism. In countries such as Germany, where democracy was once compromised and where the salience of historical memory is high, militant responses to radicalism are likely to ensue. In fact, fighting political radicalism is one historical policy area in Germany, which is one of the most accomplished examples of institutionalised militant democracy (Pedahzur, 2004). In contrast, country cases such as France, where democracy remained unchallenged and/or where the salience of historical memory is low, responses to radicalism are likely to be more permissive, according to Downs. Without arguing that France is more permissive of right-wing radicalism than Germany, one can safely say that fighting right-wing radicalism has not been a clearly defined policy issue in France, as the excerpts at the beginning of this introduction suggest. In sum, the comparison presents two liberal democracies with comparable legal frameworks, both of which are interventionist states, and right-wing radicalism is present in the two cases. However, structural differences (expressions of the radical right, type of government) and cognitive differences (treatment of the authoritarian past) might play a role in the regulation of right-wing radicalism. In this book, I intend to assess the role of these differences on the regulation of rightwing radicalism, and more generally on how these two democracies deal with the paradox of tolerance.

The structure of the book This book is structured around a central, two-part question: how have French and German public actors produced their own approaches towards political radicalism, in particular right-wing radicalism, and how has this approach shaped the way in which they deal with the paradox of tolerance? This research question was operationalised by an approach anchored in policy studies, which addresses the role played by actors, their ideas, and their interactions. In Chapter 1, I present and justify the theoretical framework of this study and the methodological approach. The argument is that responses to the radical right should be examined as a policy matter with the help of the analytical tools developed by policy studies. The theoretical framework developed for conducting the analysis is based on a combination of actor-centred institutionalism and of frame analysis. This approach will allow for the exploration of the ideas and interactions of policy actors in addressing right-wing radicalism. This empirical study is based on semi-structured qualitative interviews conducted in France and Germany with state and non-state actors involved in the formulation and implementation of policy responses to the radical right: actors from the Parliaments, from security authorities (police, gendarmerie, domestic intelligence service), from the justice system (prosecutors, judges), from non-repressive ministries, and from NGOs fighting right-wing radicalism. Eighty interviews were conducted between 2013 and 2017. Besides these interviews, legal and administrative literature and

Introduction  11 information from public sources were collected and complemented the analysis of interviews. Chapter 2 portrays the various state responses formulated against the radical right over the last half-century in France and Germany and retraces the different expressions of right-wing radical parties, social movements, and subculture. This chapter also provides the reader with basic knowledge of the French and German historical and political contexts, which is necessary for the rest of the analysis. A central challenge of this study is to grasp how right-wing radicalism is regulated and by whom. Chapter 3 identifies a pattern of responses in each national case: in order to do so, I explore the development of legal frameworks in the last half-century, paying particular attention to the role of the different state actors involved in policy-making. I also assess how policy responses to the radical right are perceived and formulated by policymakers and, finally, explain why responses against right-wing radicalism were constructed as a policy in Germany but not in France. Chapter 4 probes the ideas of policy actors in the context of an institutional setting: how do actors involved in the regulation of the radical right frame this phenomenon and what do they believe are the appropriate responses to right-wing radicalism? In addressing this question, I map a series of policy frames, which are present among state and non-state actors, addressing right-wing radicalism. Policy frames are a combination of individual interests, the institutional setting, and normative aspirations (further details in Chapters 1 and 4). A central premise is that despite the existence of a broad national framework in France and Germany, there is a variety of policy frames within each country case. This would both suggest that there are several ways of perceiving and responding to the radical right even within a national framework, and that despite French-German differences, there are common policy frames in both countries. Chapters 5 and 6 focus on the process leading to actual policy measures against the radical right. I explore how and when policy actors use policy instruments to regulate the radical right. In Chapter 5, I evaluate the role of interactions between policy actors with different frames on decision-making and show who really matters in the policy-making process. I eventually determine the result of comparing a country case where political radicalism is defined as a policy matter with another where it is treated as a political matter. In Chapter 6, I conduct a micro-level analysis to explain when the proscription of right-wing associations succeeds and fails. The use of a policy instrument, the association ban, by state actors will be examined in four empirical cases. The objective is to retrace the policy process with the use of the process tracing method and to evaluate the role of actors’ motivations and of institutional constraints in the banning process, in order to eventually identify how policy measures are instrumentalised. In Chapters 5 and 6, I will unravel the distribution of power between the different actors involved. Not only will I emphasise French and German differences in the regulation of right-wing radicalism, but I will also determine which variables account the most for these different modes of regulation. The leading idea of the book is that the radical right is a political target in both countries but is regulated differently at the policy level. If France and Germany use similar instruments in order to repress right-wing radicalism, I show, by using a multi-level approach, that the policy-making process strongly differs. I  first

12  Introduction argue that an essential feature of German democracy is a state doctrine preventing the democratic order from experiencing extremist threats, which has been constructed over the last 50 years by political and state actors. In France, right-wing radicalism is treated as a political matter and, as such, it first and foremost concerns the political arena. As a result, according to French public actors, right-wing radicalism should not be addressed in policy terms unless the groups are violent or express racist opinions. A meso-level analysis of the perceptions that French and German policy-makers have of right-wing radicalism and of the appropriate responses to formulate against this phenomenon questions the assumption that there is one broad policy frame to address right-wing radicalism in each country. Indeed, this research shows that national policy actors are not an aggregate actor but consist rather of a multiplicity of actors evolving in various institutional settings and with different normative judgments and interests. I identify the existence of similar frames in France and Germany despite these two countries’ different historical trajectories. Consequently, I argue that actors’ perceptions alone cannot account for French-German differences. Exploring how actors with different frames interact along the policy process allows me to argue that interactions are essential to understanding national specificities. Three main factors determine how policy actors interact and make a decision when responding to right-wing radicalism: whether right-wing radicalism is framed as a policy issue, the openness of policy-making to civil society, and the impact of each category of actors on decision-making. The implications of this finding on the French-German comparison are that policy-making in Germany is shared among a diffuse range of actors with different frames who all contribute to decision-making, which explain the recent diversification of the policy mix. In contrast, French ­decision-making is more compartmentalised and remains dominated by political actors. Finally, a micro-level analysis conducted on bans against right-wing groups confirms the differences in the policy-making process and shows that bans are mainly used as a political tool by government actors in France, whereas bans are embedded in a wider repressive policy in Germany. In sum, this book, which addresses public responses to the radical right with a policy approach, shows that the ideational factor, namely, how the authoritarian past has been processed by liberal democracies, and the place given to debates around the protection of the democratic order, play an overriding role in the regulation of right-wing radicalism. Taking into account both the type of government and the ideational component is required to explain how the paradox of tolerance is handled by different democratic countries. I finally suggest that the influence of the structure of the radical right on the regulation of right-wing radicalism is, quite surprisingly, of secondary importance.

Notes 1 “Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. In this formulation, I  do not imply, for instance, that we should

Introduction  13 always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion; suppression would certainly be most unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law, and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal” (Popper, 1945, p. 265). 2 A first attempt to ban the NPD failed in 2003 when the Federal Constitutional Court dismissed the application of the incumbent federal government. 3 Further considerations on the radical right and the perception of the phenomenon by state actors are to be found in Chapter 1. 4 Negative republicanism refers to “the concrete negation of historical wrongs in the name of democracy” (Niesen, 2002). In the German case, the result of negative republicanism would be to ban an extremist party, whose ideological proximity to National Socialism would be proven as a historical obligation because of the negative legacy of National Socialism on German society. 5 I will discuss the classification of the various responses to the radical right in Chapter 1. 6 The cordon sanitaire, or political containment, designates a collective strategy defined by traditional parties and/or media and is aimed at isolating a pariah party whose democratic credentials appear dubious (Downs, 2012, p. 155). 7 Alistair Cole (2008, p. 210) explains that “the traditional German social-market economy was one that relied on fairly tight cooperation between social partners and the state that together comprised neo-corporatism, relying on coordination by networks. The French model was the one where traditionally most emphasis was placed on state mechanisms of coordination”. 8 The publication of Vichy France: Old Guard and New Order by Robert O. Paxton in 1972 triggered a wide debate in France regarding the historiography of collaboration in France. The book, along with the Marcel Ophüls’ film The Sorrow and the Pity, challenged the heroic myth of resistant France during World War II and progressively led to the reconsideration of the French authoritarian past.

References Backes, U. (2018). Banning Political Parties in a Democratic Constitutional State: The Second NPD Ban Proceedings in a Comparative Perspective. Patterns and Prejudice, 53(2), pp. 136–151. Bancel, N., Blanchard, P. and Lemaire, S. (2005). La fracture coloniale: la société française au prisme de l’héritage colonial. Paris: La Découverte. Beichelt, T. (2005). Kultur und Kontext – Strategien zur Einbeziehung komplexer Umwelten in die vergleichende Methode. In: S. Kropp and M. Minkenberg (eds.), Vergleichen in der Politikwissenschaft. Wiesbaden: VS Verlag, pp. 218–233. Birenbaum, G. (1992). Le Front National en politique. Paris: Balland. Bloch, M. (1928). Pour une histoire compare des sociétés européennes. Revue de synthèse historique, 46, pp. 15–50. Boussaguet, L. and Dupuy, C. (2014). L’Analyse des Politiques Publiques à l’Epreuve de la Comparaison. Revue Internationale de Politique Comparée, 21(2), pp. 97–119. Butterwegge, C. (1996). Rechtsextremismus, Rassismus und Gewalt. Darmstadt: WBG.

14  Introduction Camus, J.Y. (2009). Die extreme Rechte in Frankreich: Es ist zu erwarten, dass die Landkarte neugezeichnet werden wird. In: N. Langenbacher and B. Schellenberg (eds.), Europa auf dem rechten Weg? Rechtsextremismus und Rechtspopulismus in Europa. Berlin: Friedrich Ebert Stiftung, pp. 85–104. Capoccia, G. (2013). Militant Democracy: The Institutional Bases of Democratic SelfPreservation. Annual Review of Law and Social Science, 9, pp. 207–226. Cole, A. (2008). Governing and Governance in France. Cambridge: Cambridge University Press. Cole, A. (2005). French Politics and Society. 2nd ed. Harlow: Pearson Longman. Corcuff, P. (2011). Analyse Politique, Histoire et Pluralisation des Modèles d’Historicité. Revue Française de Science Politique, 61(6), pp. 1123–1143. Czada, R. (2009). From Muddling Through to Struggling Through: Political Reforms in Germany. In: R. Czada and K. Hirashima (eds.), Germany and Japan after 1989: Reform Pressures and Political System Dynamics. Tokyo: ISS Research Series, pp. 75–92. Dézé, A. (2012). Le Front National: à la conquête du pouvoir?. Paris: Armand Colin. Downs, W. (2012). Political Extremism in Democracies. Basingstoke: Palgrave MacMillan. Druwe, U. and Mantino, S. (1996). ‘Rechtsextremismus’. Methodologische Bemerkungen zu einem politikwissenschaftlichen Begriff. In: J. Falter, H.G. Jaschke and J. Winkler (eds.), Rechtsextremismus: Ergebnis und Perspektive der Forschung. Special Issue 27. Politische Vierteljahresschrift, pp. 66–80. Favre, P. and Legavre, J.P. (1998). Enseigner la science politique. Paris: L’Harmattan. Foucault, M. (2007). Security, Territory, Population. Lectures at the Collège de France, 1977–78. Basingstoke: Palgrave Macmillan. Friedberg, E. (1993). Le pouvoir et la règle: dynamique de l’action organisée. Paris: Le Seuil. Gerring, J. (2007). Case Study Research, Principles and Practices. Cambridge: Cambridge University Press. Giraud, O. (2009). L’analyse des politiques publiques en Allemagne et les dimensions du pouvoir. In: M. Delori, D. Deschaux-Beaume and S. Saurugger (eds.), Le choix rationnel en science politique. Paris: Res Publica, pp. 87–100. Giraud, O. (2004). Les idées dans l’analyse de l’action publique en France et en Allemagne: entre traditions étatiques et traditions intellectuelles. In: B. Zimmermann (ed.) Etat et sciences sociales. Paris: Éditions de la Maison des Sciences de l’Homme, pp. 145–174. Giraud, O. (2002). Une école allemande d’analyse des politiques publiques entre traditions étatiques et théoriques. Revue Française de Science Politique, 52(1), pp. 5–21. Giraud, O. (2001). La Steuerungstheorie. Une approche synthétique de l’action publique contemporaine. Politix, 14(55), pp. 85–93. Jaschke, H.G. (1991). Streitbare Demokratie und Innere Sicherheit. Grundlagen, Praxis und Kritik. Opladen: Westdeutscher Verlag. Jobert, B. and Muller, P. (1987). L’Etat en action: politiques publiques et corporatismes. Paris: PUF. Kriesi, H.P. (1994). Les démocraties occidentales: une approche comparée. Paris: Economica. Laborier, P. (2011). Les Sciences Camérales, Prolégomènes à toute Bureaucratie Future ou Parades pour Gibier de Potence. In: P. Laborier, F. Audren, P. Napoli and J. Vogel (eds.), Les sciences camérales: activités pratiques et histoire des dispositifs publics. Paris: PUF, pp. 11–30. Lascoumes, P. (2004). La Gouvernementalité: de la Critique de l’Etat aux Technologies du Pouvoir. Le Portique, pp. 13–14. URL: http://journals.openedition.org/leportique/625. Lascoumes, P. and Le Galès, P. (2004). Gouverner par les instruments. Paris: Presses de Sciences Po.

Introduction  15 Le Galès, P. (2011). Public Policy Research, Deconstructing the French Touch. Critical Policy Studies, 5(2), pp. 201–207. Lijphart, A. (1999). Patterns of Democracy. New Haven: Yale University Press. Loewenstein, K. (1937). Militant Democracy and Fundamental Rights. The American Political Science Review, 31(3), pp. 417–432. Malkopoulou, A. and Norman, L. (2018). Three Models of Democratic Self-Defence: Militant Democracy and Its Alternatives. Political Studies, 66(2), pp. 442–458. Mannheim, K. (1943). Diagnosis of Our Time: Wartime Essays of a Sociologist. Trench, Trubner: Kegan Paul. Mayer, N. and Perrineau, P. (1996). Le Front National à découvert. Paris: Presses de Sciences Po. Mill, J.S. (1843). A System of Logic. London: Longmans, Green, Reader, and Dyer. Minkenberg, M. (2017). Repression gegen Rechtsradikalismus und rechte Gewalt: Strategien und Wirkungen. In: C. Kopke and W. Kühnel (eds.), Demokratie, Freiheit und Sicherheit. Baden-Baden: Nomos, pp. 183–200. Minkenberg, M. (2013). From Pariah to Policy-Maker? The Radical Right in Europe, West and East: Between Margin and Mainstream. Journal of Contemporary European Studies, 21(1), pp. 5–24. Minkenberg, M. (2005). Repression und Repressionswirkungen auf rechtsradikale Akteure. In: W. Heitmeyer and P. Imbusch (eds.), Integrationspotenziale einer modernen Gesellschaft. Wiesbaden: VS Verlag, pp. 303–324. Minkenberg, M. (1998). Die neue Radikale Rechte im Vergleich: USA, Frankreich, Deutschland. Wiesbaden: Westdeutscher Verlag. Muller, P. and Surel, Y. (1998). L’analyse des politiques publiques. Paris: Montchrestien. Neugebauer, G. (2001). Extremismus – Rechtsextremismus – Linksextremismus. Einige Anmerkungen zu Begriffen, Forschungskonzepten, Forschungsfragen und Forschungsergebnissen. In: W. Schubarth and R. Stöss (eds.), Rechtsextremismus in der Bundesrepublik Deutschland, Wiesbaden: Springer VS, pp. 13–37. Niesen, P. (2002). Anti-extremism, Negative Republicanism, Civil Society: Three Paradigms for Banning Political Parties. German Law Journal, 7, pp. 249–286. Pedahzur, A. (2004). The Defending Democracy and the Extreme Right: A  Comparative Analysis. In: R. Eatwell and C. Mudde (eds.), Western Democracies and the New Extreme Right Challenge. London: Routledge, pp. 108–132. Pedahzur, A. (2001). Struggling with the Challenges of Right-Wing Extremism and Terrorism within Democratic Boundaries: A Comparative Analysis. Studies in Conflict and Terrorism, 24(5), pp. 339–359. Popper, K. (1945). The Open Society and Its Enemies. London: Routledge. Rawls, J. (1971). A Theory of Justice. Boston, MA: Harvard University Press. Roth, R. and Rucht, D. (2008). Die sozialen Bewegungen in Deutschland seit 1945. Frankfurt: Campus Verlag. Rousso, H. (1987). Le Syndrome de Vichy. Paris: Le Seuil. Scharpf, F. (1994). Games Real Actors Could Play: Positive and Negative Coordination in Embedded Negotiations. Journal of Theoretical Politics, 6(1), pp. 27–54. Schmidt, M. (2016). Conclusion: Policy Diversity in Germany’s Federalism. German Politics, 25(2), pp. 301–314. Skocpol, T. (1979). States and Social Revolutions. Boston, MA: Harvard University Press. Stöss, R. (2008). Extremistische Parteien’ Worin Besteht der Erkenntnisgewinn  – Ein Essay. Bundeszentrale für Politische Bildung.

1 Responding to right-wing radicalism A policy matter

This book is about reconciling the analysis of responses to the radical right with policy studies. It is about how two liberal democracies, France and Germany, have contended with the paradox of tolerance and how a series of public actors have framed right-wing radicalism and empirically dealt with this phenomenon. This chapter presents the theoretical foundations of the book’s research. The discussion that I present is grounded in the idea that the analysis of public responses to the radical right should be articulated with a policy approach. Therefore, I first examine the existing literature in policy studies contending with responses to rightwing radicalism, especially with regard to France and Germany, and argue that previous literature provides only limited insights into the perceptions of actors and the reasons for which they act the way they do. Accordingly, I then present the comparative research design based on constructivist theoretical underpinnings which address the role of public actors in the elaboration of policies. Subsequently, I provide an explanation as to why I have chosen to refer to the “radical right” and how I  articulate right-wing radicalism and right-wing extremism. In addition, I  present how this book contributes to the research field on “militant democracy” and finally elaborate on the operationalisation of the research question and expound upon the methodological approach.

Reconciling policy studies and the politics of defending democracy This book takes a critical approach which assumes that responding to the radical right is not a single process leading to a homogeneous set of measures. I  seek to open the black box of the policy process leading to the implementation of measures against the radical right. In order to do so, a Foucauldian influence has accompanied the construction of this research. Foucault argues that the state is nothing else but the effect  .  .  . of incessant transactions which modify, or move, or drastically change, or insidiously shift sources of finance, modes of investment, decision-making centres, forms and types of control, relationships between local powers, the central authority, and so on. In short, the state has no heart, as we well know, but not just in the sense that it has

Responding to right-wing radicalism  17 no feelings, either good or bad, but it has no heart in the sense that it has no interior. The state is nothing else but the mobile effect of a regime of multiple governmentalities.1 (Foucault, 2008, p. 77) This approach advocates for paying attention to practices, knowledge, and decisions in order to identify how the governance of political radicalism is operationalised. The Foucauldian concept of governmentality focuses the attention upon the articulation between power and knowledge, that is, a focus on discovering “which kind of rationality public actors are using” (Foucault, 1980, p. 226). Foucault finally underlines that the focus should not be on the legal order, but rather on the multiple practices of governmentalities that rely on technical procedures, on instruments, and on strategic power relations that are unstable and reversible (Foucault, 1994, p. 584). In short, this book examines the political rationalities organising the power relations (Lascoumes, 2004, p. 5) to regulate political radicalism. Actors’ perceptions on measures against the radical right Drawing on these observations, the literature on the reactions to the radical right has questioned the exercise of state power on a political phenomenon. Some have questioned the selective use of the repertoire of instruments. For instance, HansGerd Jaschke (1991) explores how German authorities have implemented measures protecting the constitutional order in Germany (see Chapter  3) and shows that the protection of democracy is closely associated with the idea that political radicalism needs to be handled with an internal security approach. This conveniently prevents political authorities from debating on the opportunity to proscribe movements and on the relevance of introducing other types of measures to address political radicalism (e.g. preventive measures). In this way, Jaschke shows how political radicalism has become a matter of domestic security, especially during the 1970s when Germany faced a wave of left-wing violence. He argues that the concept of militant democracy enshrined in German legislation has been used by the government to legitimise the implementation of repressive security measures. This example illustrates the central role of state actors in the construction of practices repressing political radicalism. Another decisive element is the diversity of state actors involved in the formulation and implementation process of responses to right-wing radicalism. In Germany, the highest executive and judicial authorities acknowledged the need to lead an intellectual and political debate to discuss what radicalism is. But in the 1970s, as left-wing terrorism emerged, the assumption that an intellectual and political debate was legitimate became of secondary importance. This attitude became unsuitable in the 1990s when right-wing violence became a salient issue and civil society groups organised against right-wing radicalism. In this context, Jaschke argues that the role of interactions occurring between the institutions in charge of the protection of democracy and the critical contribution of civil society should be explored. In sum, Jaschke invites his

18  Responding to right-wing radicalism fellow scholars to analyse the responses to the radical right not as the result of mere interactions between radical groups and security authorities, but rather as a complex phenomenon encompassing a myriad of public actors with various backgrounds and perspectives. In addition, the various actors involved in the regulation of the radical right might express different perceptions of the legal arsenal. Britta Schellenberg (2014) conducted research focusing on the small town of Mügeln in Saxony where right-wing riots occurred in 2007. No consensus existed on the motives of the riots which triggered public debates. Whereas the Saxon State Security Department and the Mayor of Mügeln denied the racist nature of the riots, representatives from left-wing parties promptly denounced the racist character of the violent event. Schellenberg identifies different frames among individuals: members of left-wing parties recognised the racist motive of the riots, whereas the Christian Democrat Party belittled the racist dimension of the event. This research highlights the heterogeneous character of perceptions, suggesting that an approach based on actors’ frames and perceptions might be helpful to better understand the rationale behind the regulation of right-wing radicalism.

Instruments of policy studies applied to an analysis of responses to the radical right Frame approach to explore the policy-making process regarding the regulation of right-wing radicalism The purpose of this book is to unravel the articulation between the issues framed by policy actors as public problems (in this instance, the radical right or part of it) and how they use policy instruments to address those. I do not adopt a problemsolving perspective that would assume that public actors merely seek to resolve problems and consequently act in order to constrain the influence of right-wing radicalism, as such a perspective would imply that French-German similarities or differences can be explained by similar or different levels of right-wing violence in both countries, thus generating more or fewer responses from the authorities. Additionally, a problem-solving approach masks the fact that public actors may perceive the issue differently from one country to another independently from the nature of the phenomenon. This approach finally misses the importance of policy choices that are made by actors according to their own representations. How has right-wing radicalism been understood and subsequently framed by public actors in charge of responding to it? In his research analysing the race policy development in France and Britain, Bleich (2003) explains why policy outcomes are different: while “France maintains a strict colour-blind code, Britain has accepted a number of race-conscious policies. Whereas France has traditionally preferred to use criminal law to fight racism, Britain relies heavily on civil law for punishing discrimination” (Bleich, 2003, p.  8). In order to understand why these countries chose such different approaches, Bleich formulates three questions: 1) Who are the actors responsible for initiatives? 2) What are those actors’ goals? 3) What factors constrain or enable their actions? Exploring the

Responding to right-wing radicalism  19 perceptions of state actors requires robust theoretical tools. Bleich convincingly argues that the most fruitful option to answer these questions is the policy frame approach. Frames are defined as “selecting, organising, interpreting, and making sense of a complex reality so as to provide guideposts for knowing, analysing, persuading and acting” (Rein and Schön, 1991, p. 263). In this process, the relevant policy actors first name a problem and thereby reflect their understanding of a given situation, then they “select what should be seen and therefore divert attention from other features” (van Hulst and Yanow, 2016, p. 97), and policyactors finally tell a story that “binds elements of a situation into a pattern that is coherent and graspable” (Ibid.). This research aims to collect these stories in order to identify different policy frames among actors responding to the radical right, if such frames exist. Bleich claims that a perspective focused on ideas is “strong at explaining cross-national differences and can satisfactorily explain policy outcomes” (2003, p. 13). Policy frames are embedded in history and enable the exploration of the policy-making process. For instance, Bleich unravels the mechanisms explaining the different approaches in Britain and France: one determining element is the role of ideas in the forging of frames. Whereas British policy-makers have conceived racism in terms of colour and have consequently fought “access racism” involving discrimination and inequalities between racial groups, French actors have considered the category of race irrelevant to the French context and have focused on fighting “expressive racism” manifested through defamation or provocation to racial hatred (Ibid., p. 14ff.). By revealing a causal relationship between race frames and race policies, Bleich demonstrates the role of ideas on policy outcomes, here, the legal responses against racism and hate speech in France and Great Britain. In the context of my research, one might reasonably suppose that the policy frames to be identified among state actors impact the regulation of right-wing radicalism. Policy frames are not necessarily “unimodally distributed, or shared by a wide variety of actors”, which implies a “disagreement over fundamental cognitive or moral maps within a policy sphere” (Bleich, 2003, p.  185ff.). In the case of non-unimodal distribution, frames can influence the policy outcomes if they are dominant within a range of actors who have decisionmaking power. Accordingly, the cognitive analysis of policy processes cannot be completely separated from the question of power (Muller, 2000, p. 196), defined as the ability to act on an issue framed as a problem. A powerful actor, or group of actors, may control the decisions according to its own preferences. Determining which categories of actors have been powerful and able to formulate their responses to right-wing radicalism and to supervise their actual implementation is a central issue of this book. Bleich’s results suggest that policies are indeed influenced by frames – but it is assumed that one specific policy frame primarily affects the policy outcomes. The hypothesis according to which multiple frames may coexist and influence the policy outcomes in different ways is not considered. One should, however, test this hypothesis in order to determine whether there may exist several frames regarding the regulation of right-wing radicalism within each country case.

20  Responding to right-wing radicalism Actor-centred institutionalism This book is interested in explaining how policy-makers such as police officers, leaders of non-governmental organisations, or judges have framed the regulation of right-wing radicalism. It has become well known that ideas do not float freely (Risse-Kappen, 1994). This means that ideas are embedded in practices and “policy legacies” (Scharpf, 2000, p.  769). It cannot be excluded that the institutional setting may play a significant role. Institutional setting is understood as the “systems of rules that structure the courses of actions that a set of actors may choose. This includes not only formal legal rules that are sanctioned by the court system and the machinery of the state, but also social norms that actors will generally respect and whose violation will be sanctioned by loss of reputation, social disapproval, withdrawal of cooperation and rewards, or even ostracism” (Scharpf, 1997, p. 38). Political scientists who analyse responses to the radical right have neglected the impact of institutional structures and the specificities of policy-­making on the state responses to political radicalism (Capoccia, 2005). Therefore, it is relevant to adopt a theoretical framework that articulates the role of institutions from an ideational perspective. Renate Mayntz and Fritz Scharpf (1995) developed the framework of actorcentred institutionalism. It is assumed that actors are central to policy-making, and particular attention is devoted to their “orientations (i.e. their preferences and perceptions)” (Scharpf, 2000, p.  771). Because rational-choice institutionalism and sociological institutionalism2 assume that the role of institutions largely constrains the actions taken by policy actors, Mayntz and Scharpf distance themselves from these deterministic approaches and develop a framework based on empirical policy research: actor-centred institutionalism. According to this approach, the institutional setting influences the actors’ capabilities (e.g. legal competences); the behaviour of actors, however, is by no means dictated by their institutional setting. Institutions constrain policy actors but also provide them with resources and opportunities (Giraud, 2001). The actors’ orientations rely far more on the “individual interest” as well as “internalised normative obligations and aspirations” (Scharpf, 2000, p. 770). These orientations are relatively stable but may also evolve “through learning and persuasion” (Scharpf, 1997, p. 43). Since institutions can be opportunities for individual actors, this approach can explain political change. In fact, by combining the frame approach, paying attention to ideas and actorcentred institutionalism which addresses the role of actors in policy-making, it can be assumed that the actors’ policy frame is a combination of three main factors: the institutional setting, the interests of individual actors, and their normative aspirations. Actor-centred institutionalism avoids the problem of traditional institutionalist approaches concentrating too largely “on the prevailing political institutions to understand how power is parcelled out” (Bleich, 2003, p. 23) because it also focusses on the actors’ ideas, which is precisely in line with a frame approach. But at the same time, the actor-centred institutional framework is a pragmatic approach and expands over the identification of groups of actors: actors are not

Responding to right-wing radicalism  21 necessarily individuals and may be composite actors. Using the concept of composite actors posits that “the individuals involved intend to . . . achieve a common purpose” (Scharpf, 1997, p. 54). This advocates for the drawing of a map identifying the relevant actors and pointing out the actors who share similar policy frames (Chapter 4). Finally, actor-centred institutionalism posits that the actors’ constellations and their modes of interactions need to be considered to understand the success or failure of a policy measure. Constellations of actors (possibly) sharing different frames may influence the implementation process and hence the policy outcomes. Because of this, it can be expected that the regulation of right-wing radicalism is all the more influenced by the actors’ constellation when a range of public actors are involved in the implementation of policy responses. A relevant example is the proscription of right-wing extremist demonstrations, which usually involve actors from the police (and sometimes from the intelligence service), the justice ministry, and the executive branch. Being able to identify the constellation and the involvement of each actor is required in order to analyse the subsequent interactions between them that may explain the outcome. Finally, the results of actor-centred institutionalist research have evidenced that policies are still dominated by state regulation mechanisms where choices, arbitration, and articulations between different sectors are central (Giraud, 2001). This is a central hypothesis that emerges from previous literature on policy responses to the radical right which justifies the use of the actor-centred institutional framework. It can be illustrated as in Figure 1.1. Actor-centred institutionalism eventually seeks to conceptualise “policy processes driven by the interaction of individual and corporate actors endowed with certain capabilities and specific cognitive and normative orientations, within a given institutional setting and within a given external situation” (Scharpf, 1997, p. 37). This flexible framework can be articulated with and enriched by a constructivist approach, which questions the role of policy frames in policy-making, in order to explain the rationale behind the regulation of right-wing radicalism.

Institutional Setting

Problems Problems

Actor’s orientations capabilities

Constellations

Modes of interaction

Policies

Policy Environment

Figure 1.1 Illustration of the basic explanatory framework of actor-centred institutionalism Source: Scharpf, 1997, p. 44. Bold emphases are mine.

22  Responding to right-wing radicalism Additionally, this framework is suitable for comparative and multi-level research designs: by identifying the personal orientations of actors, their modes of interaction, and the role of institutional incentives, this approach provides common grounds for comparability between the country cases. Developing a larger framework for the analysis As illustrated by Figure  1.1, actor-centred institutionalism is an interaction-­ oriented policy research framework. The policy environment and the issue framing also need to be analysed to contextualise the “problems”; however, in actor-­centred institutionalism this step is often missing because the political reforms under scrutiny remain largely unquestioned and are assumed to be in accordance with the public interest (Mayntz, 2001). More broadly, it is often assumed in research with a rational-choice approach that there is a given situation, a real world, that policy actors accept; with the governance shift in German political science, such an assumption was strongly questioned (see Gottweis, 2003; Fischer and Gottweis, 2012). I believe that it is important to first retrace the context in which a situation may occur and to identify the perceptions of public actors involved in the responses to the radical right (Figure 1.2). In Chapter 2, I therefore present an extensive overview of the expression of right-wing radicalism in France and Germany, as well as the public responses and mobilisations that have emerged. In addition, I discuss in Chapter 3 the construction of the legal environment in both countries and how it has developed and show that the institutional setting is not a given fact but is the result of a political construction operated by a range of policy actors. Their role in shaping an institutional setting will be

Institutional Setting

Construction of a legal arsenal framing of the public problem

Ch. 2-3

Actors’ frames

Actors’ constel -lations

Modes of interaction: micro and meso perspective

Ch. 4

Ch. 4-5

Ch. 5-6

Public policy against right-wing radicalism

Figure 1.2 Analytical framework combining the actor-centred institutional approach and a frame analysis

Responding to right-wing radicalism  23 underlined, thus highlighting that the institutional setting is not a monolithic system of given rules. This is also a way of adapting Scharpf’s framework, which has been historically influenced by the rational-choice approach, and to combine it with a constructivist approach (Delori, Deschaux-Beaume and Saurugger, 2009). In Chapter 4, I focus on the identification of different policy frames among the actors involved in responding to right-wing radicalism; to this end, I articulate the different categories of actors that will be mapped according to their policy frames and thereby highlight similarities and differences between the French and German cases. In Chapter 5, I assess the interactions between actors with different policy frames in both countries. In this respect, the rational-choice approach in Scharpf’s framework allows me to assume that “agents are purposeful actors, embedded in ideational structures, which they use according to their interests” (Saurugger, 2013, p.  898). However, actor-centred institutionalists have modelled, from a game theoretical perspective, various modes of interaction leading to a decision (e.g. unilateral decisions, mutual adjustments, voting agreements, or hierarchical decisions). Scharpf assesses actors’ interactions through a cost-benefit analysis as if the policy reforms under study were never questioned by these actors. This approach is a legacy of the rational-choice theory where it is assumed that actors, in their interactions, seek to attain their objectives in the most effective way. Unfortunately, this leaves out critical analyses that question (for instance) the agenda-setting power of actors. In order to address this shortcoming, the empirical constellations and the subsequent modes of interaction shall be analysed in the light of a more constructivist approach; the analysis of the actor interactions will move away from Scharpf’s predetermined models and will provide answers to questions such as: how does one decision come to be made and not another? Which information do actors consider when formulating a solution? These questions are in line with the actor-centred constructivist approach that tends to find out the influence of “ideas” and of “power relations” in “policy outcomes” (Saurugger, 2013, p. 896). Finally, Chapter 6 will adopt a micro-level analysis and will focus on one historical policy instrument to repress right-wing extremist groups: association bans. Thereby the role played by actors’ interactions on the outcome of the ban will be examined. This final in-depth comparative analysis will result in the identification of mechanisms explaining how actors with different policy frames have regulated right-wing radicalism in France and Germany.

To which phenomenon are public actors responding? Two empirical researches conducted in France and Germany resulted in a collection of various terms used by the respondents to name right-wing radicalism. The diversity of terms used in the field did not refer to the exact same objects. Meanwhile, the chosen, academically validated concept of “radical right” has not been recognised as relevant by all actors. I therefore intend to list the terms heard during field research and explain their ascribed meanings. This proceeding is based on the work of Reinhart Koselleck (2006), who underlines the importance of contextualising the meaning of concepts historically and socially. In so doing,

24  Responding to right-wing radicalism he suggests articulating social relationships with the use and understanding of concepts. Concepts are part of a circular motion in which they are the products of the political-social reality and in which the acting human community is linguistically influenced by these concepts. I do not intend to analyse the meaning and the history of concepts à la Koselleck. But following his logic, I question the meaning of terms depending on the institutional context in which they were employed. This ultimately allows a clarification of terms that appear in the subsequent chapters. Table 1.1 displays the diversity of terms used to (not) qualify a phenomenon as well as the variety of nuances, especially in the French case. This confirms the avenues of reflection outlined in the introduction: a central challenge of this book is to highlight the meaning of actors’ perceptions and their consequences on the conception of responses to the radical right. Since actors have used different terms to name a phenomenon, they might as well have various understandings of how to regulate it. With respect to my use of the terms “radical right” and “right-wing radicalism”, I should justify my choice. This book is about how policy-makers perceive and respond to a political phenomenon. Put differently, respondents will occupy an important place in the next chapters. Considering the heterogeneous language uses of the respondents, I  was constrained to choose a concept that allows comparison between France and Germany and whose meaning is broad enough to address the different facets of the phenomenon addressed by the respondents. A workable definition of right-wing radicalism is the “radical effort to undo social change”, which is characterised by “a growing autonomy of the individual and an ongoing functional differentiation of the society” (Minkenberg, 2002, p. 335f.). Rightwing radicalism can further be defined as a political ideology whose “core element is the myth of a homogeneous nation, a romantic and populist ultranationalism directed against liberal democracy and its underlying values such as individualism or universalism” (Ibid.). The idealised nation “should be inhabited exclusively by members of the native group and non-native elements are fundamentally threatening to the homogeneous nation-state” (Mudde, 2007, p. 19). A useful (ideological) subdivision touches upon four main ideological types within the radical right: the extreme right is characterised by “openly anti-democratic and often inspired by right-wing dictatorships of the interwar period” as well as by a tendency toward violence; the ethno-centrist type is ambiguous towards democracy and defends an “incompatibility of cultures and ethnicities”; the populist right is associated with a strong and charismatic leader and a diffuse nationalist programme; and finally, the religious-fundamentalist type is defined by the “defence of a religiously-framed conception of national ‘purity’ ” (Minkenberg, 2009, p. 12f.). In addition, the radical right may manifest itself in different organisational forms. This concept not only applies to a political family (that would include political parties only) but refers to a wider movement, a “collective actor” (Minkenberg, 2003, p. 149ff.) within Western European societies. This conception derives from the assumption of Scheuch and Klingemann (1967, pp. 11–29), according to which “the potential for radical right-wing movements exists in all industrial societies and should be understood as a ‘normal pathological’ condition”. Right-wing radicalism is multifaceted. I therefore rely on Michael Minkenberg’s classification

Table 1.1 Terms used by respondents to refer to (part of) right-wing radicalism Term used during interviews

Type of actor

Extrême Droite (FR) (extreme right) Ultra-Droite (FR) (ultra right)

Most of the actors interviewed in France

Extrême Droite Radicale (FR) (radical extreme right) Droite Radicale (FR)/Radikale Rechte (DE) (radical right) -- (no name) Rechtsradikalismus/ Rechtsradikale (DE) (right-wing radicalism/rightwing radicals)

Rechtsextremismus/ Rechtsextreme (DE) (right-wing extremism/rightwing extremists) Nationalistes/ Nationalisten (FR/ DE), Patriotes (FR), Wir sind das Volk (DE) . . . (Nationalists, Patriots, We are the people)

Meaning

Term commonly used in France to name the Rassemblement National as well as radical right in general Actors from the police Term used by the police to denominate (including intelligence persons perceived as potentially services), criminal violent and who are not affiliated prosecutors, and some with the Front National members of Parliament (mostly those with close relationships with the police) Intelligence officers Term used by police officers to refer to the most violent groups/persons monitored by state authorities Some academics

Justice (FR)

Used to name the broad phenomenon including both violent and nonviolent groups

Justice actors do not officially name the phenomenon at all All Concept defined and used to name the least radical fringe of the radical right (namely, the part of the radical right that is legally entitled to exist). This concept has been developed and used by German scholars who do not subscribe to the Extremismustheorie (see Chapter 3). This concept encompasses the broad spectrum of groups marked by a right-wing radical ideology (see definition later in this chapter). All Concept officially used by state actors to classify the most radical fringe of the radical right. In the academic sphere this concept is particularly used by proponents of the Extremismus theorie. Right-wing radical actors Right-wing radical actors have noticeably refused to be labelled as extrême droite or rechtsextrem, which has led to legal proceedings in France (where the claimants from the FN were unsuccessful). Instead, other less stigmatising terms are chosen by right-wing parties to define themselves.

26  Responding to right-wing radicalism (1998), which includes three different organisational spheres existing within the radical right. The first one corresponds to political parties. The second sphere consists of social movements, namely associations, which do not strive to gain seats but still have a potential to mobilise support through larger social movements. Members from these associations share common interpretative frames and are characterised by a strong symbolic integration. The last sphere identified is a sub-cultural milieu. These groups are significantly smaller and characterised by real autonomy vis-à-vis bigger groups, associations, or political parties. Usually the subcultural milieu tends to have a higher propensity to use violence and to act at the micro-level. From this two-fold classification emerges a matrix that was adapted to the two countries under investigation in this research. Parties, movements, and groups from the radical right presented in the current landscape were selected and ordered in Table 1.2. The adjective “right-wing extremist” (referring to the extreme right, first ideological sub-division in Table 1.2) will be used in this book to distinguish an ideological current within the radical right, for instance, in Chapter 6 where I examine the bans on right-wing extremist associations or in Chapter 2 when I present German right-wing extremist parties such as the NPD. Yet, this book is about “the radical right”, a broader concept that includes the various components of this political family, and questions how it is perceived and handled by policy-makers.

From militant democracy to defending democracy: literature review of a scientific sub-field With the rise of radical right-wing parties, especially in Western Europe, the academic literature exploring this political family has been prolific. Uwe Backes (1989) has developed a typology dividing the existing studies into four categories. The first one has concentrated on developing this concept theoretically and methodologically. The second has focused on the ideology of these movements, their organisation in parties, and their interactions within the party system. Studies from the third category have highlighted the sociological causes of right-wing radicalism. Finally, the fourth and last approach, which is of interest here, has focused on the responses given by the state and civil society to the radical right but has remarkably garnered little attention (Minkenberg, 2005; Rummens and Abts, 2010). Among scholars exploring the reasons for radical right-wing (populist) parties’ success, some have focused on the interaction between radical rightwing challengers and the established parties (e.g. Eatwell and Mudde, 2004; Art, 2007; van Spanje and De Graaf, 2018), while others have concentrated on state responses to the radical right and especially to anti-democratic movements. Responses to political extremism through the lens of the “militant democracy” concept In the study of responses to political extremism, militant democracy is a paradigmatic concept (Bourne, 2018, p. 15). It was developed by German legal scholars

Front/Rassemblement National (F), Die Republikaner (D), MNR (F), Ligue du Sud (F), Bürgerbewegung Pro NRW (D), Réconciliation Nationale (F), AfD (D)

[AfD in 2013, D]

Ethnocentric right

Populist right

Sources: Minkenberg, 2013; Camus, 2009 adjusted to France and Germany.

NPD: Nationaldemokratische Partei Deutschlands FNJ: Front National Jeunesse GUD: Groupe Union Défense AfD: Alternative für Deutschland MNR: Mouvement National Républicain

Abbreviations:

Religious fundamentalist right

NPD (D)

Extreme right

Political parties

Table 1.2  Matrix of the radical right in France (F) and Germany (D)

Civitas (F), Action Française (F), Comités Chrétienté-Solidarité (F)

FNJ (FR), Bloc Identitaire (F), Riposte Laïque (F), Egalité et Réconciliation (F), Fdesouche (F), Pegida (D), Dieudonné (F)

Junge Nationaldemokraten (D), Ring Nationaler Frauen (D), Reichsbürger (D), Oeuvre Française (F), Identitäre Bewegung (D), Bastion Social (F)

Social movements

Fraternité Saint Pie X (F)

Hooligans (F, D)

Neo-Nazis, skinheads (all), Kameradschaften (D), Autonome Nationalisten (D), Jeunesses Nationalistes Révolutionnaires (F), Jeunesses Nationalistes (F), GUD (F)

Socio-cultural milieu

28  Responding to right-wing radicalism in exile (Loewenstein, 1937; Mannheim, 1943) and is understood as the “use of legal restrictions on political expression and participation to curb extremist actors in democratic regimes” (Capoccia, 2013, p. 207). Militant democracy was influenced by Hans Kelsen’s position on self-defending democracies (1932), which is marked by relativism (Rijpkema, 2018) and an insistence on respecting the fundamental rights and will of the majority;3 Kelsen warns about the risks that limiting fundamental rights could pose for democracy and advocates for respecting the will of the majority, even if the majority wishes to abolish the democratic system. In contrast, Karl Loewenstein argues that “fascism was not an ideological movement but a sophisticated technique for the attainment of power within contemporary democracies” and pleads for the conversion of the political will to fight the common enemy in emergency situations “into specific legal-constitutional measures that would enable democracies to weather the storm” (Ibid., p. 208). Three strategies can be identified: “concentrate power in the executive, use emergency powers and pass ad hoc legislation to restrict rights of expression, participation, and assembly to prevent fascist movements from exploiting democratic freedoms to undermine democracy” (Ibid.). Karl Mannheim (1943, p. 7) similarly insists on the importance for Western democracies to “become militant”. In contrast with Loewenstein, however, the author underlines the need to anchor “basic virtues and values – such as brotherly love, mutual help, decency, social justice, freedom, respect for the person, etc. – which are the basis of the peaceful functioning of a social order” (Ibid.) in the political regime. Being committed to the establishment of a militant democracy does not only mean setting up an arsenal of repressive measures but first and foremost institutionalising “the belief that adjustment to changing reality and the reconciliation of diverse interests can be brought about [through] conciliatory means, with the help of discussion, bargaining and integral consensus” (Ibid., p. 69). In addition, Mannheim defends the principle of social justice and the necessity of “planning for freedom and variety” (as opposed to planning for conformity, as under fascist regimes) (Ibid., p.  4) in the fields of “economic, political and social techniques” on the “basis of democratic control” (Ibid., p. 1). These preventive measures allow the “improvement of the economic, social, political and educational opportunities for the people to train themselves for leadership, and an improvement of the method of the selection of the best in the various fields of social life” (Ibid., p. 72). In this social approach to democratic self-defence, the emphasis is placed on forging social cohesion (Malkopoulou and Norman, 2018). Mannheim and Loewenstein both adopt a normative perspective to develop the concept of militant democracy. Based on these contrasting approaches, two characteristics of militant democracy can be outlined: the necessity of formulating an arsenal of comprehensive repressive measures, and the equally important strategies in the areas of education and social policies that are controlled by the community. Remarkably, debates on militant democracy strongly focussed on the legitimacy and the viability of legal restrictions on political extremism (Capoccia, 2013). Accordingly, scholarship has mostly studied policy instruments that derive from Loewenstein’s theory and that curb political participation of undesirable

Responding to right-wing radicalism  29 actors. The concept of militant democracy remained largely neglected by academia in the post-war period (Ibid., p.  215), when militant democracy mainly had an empirical implementation (e.g. in Germany). From the 1980s, however, it has gained renewed salience with the success of radical right-wing parties, and political scientists have explored how “the rules, policies, and institutions of militant democracy” (Ibid.) have been used in each national context. As mentioned earlier, Germany established a post-war militant democracy and has thereby been considered as a prototypical case (Kirchheimer, 1961; Niesen, 2002; Rensmann, 2003). Therefore, a series of studies explored the militant character of the German democracy, and a strand of German literature (Backes and Jesse, 1989) developed extremism research (more details in Chapter  3). These studies focus on militant measures and outline the central role of security authorities, which holds significance in the contributions of Uwe Backes and Eckard Jesse (Minkenberg, 2006, p. 27). Similarly, Isabelle Canu (1997) led a comparative study examining the legal measures delivered against anti-democratic movements in France and Germany. The discrepancy between the liberality in the French discourse against political extremism and the actual repressive responses that are delivered in situations of need is pointed out. By contrast, German responses to political radicalism are driven by a comprehensive legal framework, and the implemented measures are consistent with legislation (Chapter 3). This approach, however, remains limited to the analysis of the French and German legal systems. Extremism research has been subject to criticism by other German scholars (Jaschke, 1991; Stöss, 1994; Minkenberg, 2005, 2006) who regret a restrictive approach focused on domestic security (Chapter 3). More broadly, the concept of militant democracy has been greatly criticised in the last decades. First, German scholars such as Jaschke plead for adopting a sociological approach when examining state responses to the radical right and encourage further work focusing on the institutions and actors implementing repressive measures against political radicalism. Second, the concept of militant democracy has been discussed outside the German context (e.g. Rijpkema, 2018). For scholars who have assessed state measures against radicalism recently, “militant democracy” focuses upon movements that “no longer represent a serious threat to the democratic politics” (Bligh, 2013, p. 1135f.) and tends to be very narrowly focused on legal instruments (Mudde, 2004; Pedahzur, 2004; Thiel, 2009; Bourne, 2015). Therefore, a new vocabulary that adapts to contemporary challenges in liberal democracies has been introduced in the academic literature in order to include the entire spectrum of current responses implemented against political radicalism, which is not restricted to repressive measures and openly anti-democratic movements. Patterns of responses to extremism Recent studies have classified democracies according to the barriers that they have established to respond to democratic threats. They intend to respond to fundamental democratic-theoretical questions. A central question is the democratic dilemma: how can states protect themselves “against forms of intolerance

30  Responding to right-wing radicalism and extremism without undermining their own fundamental commitment to the values of tolerance, liberty, and equality” (Rummens and Abts, 2010, p. 649)? It can be argued that all democracies are in some sense militant democracies (Bourne, 2018, p. 16), but that there had been several forms of responses and hence several models to defend democracy. In this regard, the work of Pedahzur (2001) is noteworthy: he developed an easily operationalisable threefold classification of models of democratic responses to right-wing extremism and terrorism. First, there is a “militant route”, understood as a “route relevant for regimes that either suffers from continuous attacks by extremely violent challengers, or democracies that are not founded on strong liberal tradition” (Ibid., p. 345). On this route, states do not confront “the motivations of extremism and violence on the social level” (Ibid.). In other words, these democracies restrict their responses to a repressive legal arsenal without antidotes to anti-democratic movements among the society. In this regard, post-war Germany was a remarkable example of militant democracy, but in the contemporary political context, hardly any European democracy could be classified as militant. Second, the concept of “defending democracy” (Capoccia, 2001, 2005; Pedahzur, 2001), which recognises the limits of the conventional sense of militant democracy, refers to a liberal system adhering to the rule of law that, however, “might consider flexing the boundaries of the rule of law to enable a proper response to the challenge” when the democracy is “under attack” (Pedahzur, 2001, p. 345). The defending route distinguishes itself from the militant democracy in two ways: the intensity of repressive measures against radical movements is not as significant as in the case of militant democracies, because repressive measures only occur in times of (rare) attacks. The model of defending democracy has been more compelling for liberal democracies when the repressive judicial approach only addresses the symptoms of radical movements (e.g. parties, street violence) but not the underlying causes (Rummens and Abts, 2010). Therefore, states introduced measures promoting civic education to dam movements attempting to dismantle the rule of law. Third, Pedahzur identifies the immunised route. In terms of liberality, this option goes one step further than defending democracy and is characterised “by a delicate mechanism of checks and balances” (Ibid., p. 346). Legal barriers against threats to stability of the regime are weak, although a precondition for this model is the existence of a robust civil society. The assumption is that states reach a phase when civil society becomes an independent and powerful actor: despite “the risks for the regime due to the potential evolution of subversive groups in the civil sphere  .  .  . society possesses strong antidotes against extremism and may eliminate such phenomena before transferring into political action” (Ibid., p. 347). These three categories are helpful to classify and compare how liberal democracies handle threats. Pedahzur describes the German case as a model with rigid policies that are inherited from the time when the German democracy was more vulnerable to anti-democratic stances, combined with a strong civil society. The author classifies the German model as a “model in transition, moving from the ‘defending’ to the ‘immunised’ route” (Ibid., p.  355) thanks to growing civil activity against radical right-wing movements. In sum,

Responding to right-wing radicalism  31 the politics of defending democracy have been evolving. And in order to gain knowledge on the reasoning behind these developments, the policy-making process of responses to the radical right shall be carefully analysed. In the same vein, previous literature has identified three determinants of democratic defensiveness against anti-democratic parties: the historical context, political engineering (e.g. electoral rules), and strategic choices made by political actors (Downs, 2012). However, more recent empirical studies that have assessed the use of policy instruments such as party bans have nuanced this argument and have shown that there are similar patterns across European countries disregarding historic experience of authoritarian rule (Bourne and Casal Bértoa, 2017b). In sum, literature suggests the need to explore with more nuances the role of historical experience and its mobilisation by state actors (Art, 2007). Accordingly, knowledge on the interaction between the historical approach towards political radicalism and the choices made by actors needs to be further developed: if the post-war era is crucial to understanding the characteristics of the institutional setting, it is necessary to analyse more thoroughly how decisive this setting is in the choices made by policy-makers. State responses against the radical right: emancipation from the model of militant democracy In France, the absence of a legal arsenal building on the concept of militant democracy is evidenced (Canu, 1997) and Baudouin (2000) emphasises the “integrative” character of the French political system, where radical political parties have been considered as political opponents rather than as enemies. Consequently, responses to political radicalism have mainly occurred in the political arena (party politics). Given this result, it comes as no surprise that discussions around a possible ban on the “Front National” (FN) have hardly been discussed despite the legal possibility (Pauvert, 1998). Some rare studies have engaged with the role of nonstate actors responding to right-wing radicalism, and especially to the FN. For instance, the action repertoire of the numerous French initiatives against the FN in the 1980s and 1990s was outlined (Mayer, 1995). In a similar fashion, Taguieff (1995a, 1995b) evaluated the action of anti-racist associations, questioning their effects and arguing about the necessity of pursuing “argumentative harassment”. In Germany, where the number of preventive programmes against right-wing radicalism is important (see Chapter 3, Chapter 4), some studies have also sought to evaluate the effects of these preventive measures led by civil initiatives. The results suggest that such initiatives have fostered the involvement of citizens and have generally strengthened the democratic political culture (on the German Brandenburg state, see Jaschke, 2011; Schubarth, Kohlstruck and Rolfes, 2014, 2017). Other evaluation reports concentrate on programmes helping right-wing extremist activists to escape the scene and have pointed out the strengths of associating civil society groups to the regulation of right-wing radicalism (on NorthRhine Westphalia, see Möller et al., 2015), which is in line with a social approach of democratic self-defence.

32  Responding to right-wing radicalism In addition, assessing the impact of counterstrategies on radical right-wing movements has attracted academic interest in the last two decades. Koopmans (1997) highlights the modest effect of repression on right-wing mobilisation, and other scholars have argued that repressive stances might indeed be counterproductive (Maegerle, 2002; Bjørgo, 2002). Minkenberg (2006) conducted a FrenchGerman comparison of the effect of repressive measures on the radical right in which he emphasised the possibility for poor effects of bans and advocated for responses handled by civil society groups (Minkenberg, 2017). Similarly, the use of party bans, when parties are electorally relevant, “can expect meaningful increases in electoral volatility, a rise in electoral and legislative concentration and often a change in the structure of partisan competition”. That subsequently leaves the matter open on the question of whether “dealing with anti-democratic attitudes through political debate or civic education” and “dealing with incitement to violence or racial hatred through the criminal justice system” (Bourne and Casal-Bértoa, 2017a, p. 461–462) is not more appropriate than banning a party. Along the same line, studies on the consequences of political ostracism of pariah parties have suggested that excluding them might have counterproductive effects (van Spanje and van der Brug, 2007; van Spanje and de Vreese, 2015). In contrast, some studies (van Donselaar, 1995; Bale, 2007; Art, 2007) have argued that “extremist parties tend to grow much more easily in a permissive than a repressive political environment” (Rummens and Abts, 2010, p.  659), thus justifying the enforcement of repressive legislation to weaken extremist parties. In short, studying the effects of responses on radical right-wing parties has provided new promising insights but has mostly emphasised that responses to right-wing radicalism do not have unidimensional consequences and that their analysis should therefore be embedded in their political context. Recent literature has opened the traditional field of research on the militant democracy to new approaches. By questioning the use of different policy instruments, this literature shifts from the traditional field of politics of defending democracy and addresses decisions made by specific public actors. In light of this shift, this book intends to contribute to this new stream of literature that questions the governance of political radicalism by providing a comprehensive analysis of how policy responses to the radical right have been constructed by policy-makers and how the arbitration between the different types of responses has been made.

Classification of responses to the radical right Before identifying the policy mix against right-wing radicalism in France and Germany, it is necessary to establish a classification of existing responses to the radical right. Table 1.3 displays a broad typology of measures conceived by European states in order to defend democratic systems from internal opponents (Capoccia, 2002). Measures are divided according to two criteria: the nature of the measure (repressive or accommodative) and the time by when “the proposed objectives

Responding to right-wing radicalism  33 Table 1.3  Conceptual reconstruction of “Defence of Democracy” Short-term

Long-term

Repressive

Militancy

Purge

Accommodative

Incorporation

Education

Source: Capoccia, 2002, p. 49.

of strengthening democracy shall be achieved” (short- or long-term) (Ibid., p. 47). Whereas the purpose of most repressive strategies is to offensively confront a political threat that requires an urgent answer, the accommodative option is rather inscribed in a democratisation process that includes the whole society and gives a central role to education. Capoccia distinguishes four types of strategies. First, there is militancy that “refers to those strategies, normally based on formal legislation but also consisting of interventions in the realm of ‘invisible’ politics”. Second, other strategies “endeavour to bring into the system parts of the extremist opposition”. Third, repressive long-term strategies are described as purge strategies and mainly occur after the transition to democracy in order to ensure “the systematic loyalty of bureaucrats” or to “prosecute the authors of political crimes connected with the previous regime”. Fourth, education strategies are implemented as means to “strengthen democratic values and beliefs, as well as democratic practices at different levels” (Ibid., p.  49). Drawing on this classification, I shall now develop my own classification of responses formulated against the radical right in France and Germany. First, there are party politics that take place between actors in the political arena. They have been largely examined by academic literature and will be briefly exposed. Second, there are repressive responses formulated by actors with responsibilities within state institutions detaining repressive powers: the police and the justice systems. Third, preventive responses formulated by a myriad of state and non-state actors can be identified. Party politics and radical right-wing parties Actors of established parties deliver mostly short-term strategies against radical right-wing parties. Political opponents may manifest themselves in the political institutions with parties playing the democratic game or outside the legal framework with political terrorism or violent insurrection (Capoccia, 2002). Political strategies against right-wing radicalism are distinct from policy responses formulated and implemented by administrative actors  – this is especially true in the French case where responding to the main radical rightwing party has historically been in the hand of political parties and not an administrative task. The raison d’être of political responses is to handle parties considered as hostile to (liberal) democracy with political means and to contain their influence. Political strategies partly cover the spectrum of short-term measures developed by Capoccia (see earlier discussion), but William Downs

34  Responding to right-wing radicalism developed a more detailed typology of political strategies against “pariah parties”4 (Downs, 2012, p. xii). He identifies four types of political strategies reacting to radical parties: • •

•

•

Ignorance: political actors ignore the threat posed by radical parties. Downs names this response “ignore them and they will go away” (Ibid., p. 33). This type of reaction only marginally applies to France and Germany. Collaboration: this strategy is characterised by a high rate of tolerance of intolerance and consists in collaboration with the pariah party. This strategy has not been chosen in German politics yet. After the first electoral success of the Front National and until the end of the 1990s, a few French political actors from the centre-right initiated a collaboration with the FN for local elections (see Chapter 2). Co-optation: this strategy engages pariah parties directly. The political aim for established parties co-opting (part of) the programme of pariah parties is to “persuade extremist rank and file as well as potential supporters that the democratic establishment is serious about addressing core societal concerns” (Ibid., p. 45). This strategy has been adopted several times in France as well as in Germany (see Chapter 2). Isolation: this political strategy is characterised by a high degree of militancy against pariah parties and takes different forms. Downs highlights a strategy which consists in altering electoral thresholds in order to control access to parliamentary representation. The French two-round majoritarian system for parliamentary elections does not favour minor parties. In comparison, the German five per cent rule allows the representation of smaller parties. In short, the electoral engineering may be used as a means to protect against political radicalism. Similarly, territorial engineering may be used against radical parties to prevent them from entering several parliaments at once (Downs, 2012). Isolation can also be achieved through the enforcement of a containment strategy – also termed cordon sanitaire – which consists in a “party’s systematic refusal to politically cooperate with a particular other party at a specific level and at a particular time” (van Spanje and van der Brug, 2009, p. 355). The isolation strategy has been implemented in France and Germany (see Chapter 2).

Downs also includes the ban strategy to the repertoire of responses used by established parties to isolate the radical right. It nevertheless seems more fruitful to classify the ban as a state repression strategy. Ban procedures are characterised by a complex political process involving numerous state actors and not only political actors. I therefore consider party and association bans as state responses. The political dimension of bans will be extensively discussed in this book (see Chapter 6). Another category of response is targeting the vote for, and the ideas developed by, radical right-wing parties. This strategy consists of rallying for social policy that has a “depressing effect on some factor that is correlated with sympathy for

Responding to right-wing radicalism  35 right-wing radical parties” (Husbands, 2002, p. 67). Already theorised in the context of European dictatorships, such strategies consider “the planning” and “the principle of social justice” as central “in the very struggle for victory” (Mannheim, 1943, p. 70) as long as freedoms and the democratic methods are maintained. In this light, right-wing radicalism is not directly targeted, but instead new policies are implemented to prevent its popularity: in Britain, this logic was illustrated by the growth of the welfare state and the “extension of social services, insurances against risks, compensation” (Ibid.). It may be applied to the current political context where it has been evidenced that “accommodative strategies [of established parties] that fail to obtain frame ownership from radical right parties, increase chances of radical right success” (Pytlas, 2015, p. 5). In order to avoid this pitfall, a strategy may consist in formulating policies that ensure the reduction of social and environmental inequalities to prevent citizens from voting for radical right-wing parties. In sum, it should be made clear from the outset that party politics and strategies of established parties against radical right-wing parties will not be addressed in this book. However, given the articulation between the responses aimed at radical parties and policy measures formulated to fight radicalism, Chapter 2 will sketch out the different political parties’ strategies that have been deployed throughout the last 50 years to respond to radical right-wing parties. Repressive strategies under the leadership of the government A range of repressive reactions against the radical right, both short- and longterm, has arisen from state authorities. State actors belong to state administration and are consequently subject to the orientations and legal framework defined by political actors (ministries and parliamentarians). Repressive responses may target both radical right-wing parties and social movements. Two main objectives can be identified: “limiting the diffusion of the ideas . . . and limiting the actions of radical right groups and individuals . . . within the framework of democratic norms” (Minkenberg, 2006, p. 36). Unlike political parties, state authorities can make use of repressive means that are defined in each nation’s legal arsenal (see Chapter 3). Table 1.4 offers an overview of the repressive responses developed by state authorities against the radical right in France and Germany. Most measures are short term, which allows to react to the radical right in case of immediate emergencies. Repressive measures have also been classified according to the actors involved in the formulation and implementation process, highlighting the diversity of state actors involved. Four types of repressive responses can be identified: •

Bans: these responses target both political parties and groups that threaten the constitutional order in Germany or the public order in France. Embedded in a complex administrative process, these measures involve the police, courts, and governments. Chapter 6 will focus on association bans against right-wing extremist movements.

36  Responding to right-wing radicalism •

• •

Prosecution of criminalised political activities: these responses are aimed at individuals, and their implementation involves the police and criminal courts. Both France and Germany have developed a legal framework that allows the repression of individuals who pursue illegal political activities. Surveillance of the radical right: the police and domestic intelligence are both in France and Germany involved in the policing and the surveillance of groups and/or parties considered a threat to the democracy/public order. Purges: these are “strategies enacted by passing and implementing rules reinforcing the core of the state institutional and bureaucratic machinery” (Capoccia, 2002, p. 50). These measures are typical for young democracies after an experience of authoritarian rule. Purges mostly occurred in the postwar period in Germany and involved a wide range of state actors. Lustration policies intend to “cleanse the sectors of the state administration that were most closely associated with the previous nondemocratic system” (Capoccia, 2002, p. 51). In Germany this has, for instance, been the case for the first wave of employment bans issued by the Allied authorities, which deprived civil servants who had worked for the Nazi regime of their position.

The primary interest of Table 1.4 is to emphasise the diversity of actors intervening in the formulation and the delivery of repressive measures. It also suggests that state actors have to cooperate and work together in order to repress the radical right. This is in line with the theoretical framework presented earlier that underscores the role of interactions between actors to understand the policy outcomes. Table 1.4  Repressive measures against the radical right in France and Germany since 1945 State actors

Police, courts

Short-term measures

Long-term measures

Ideas

Actions

Publication ban (books, symbols, music, slogans, shows, and so on)

Demonstration ban

Government, police, courts

Association and party ban

Legislation against disloyalty by public officials

Courts

Individual prosecution (offences with a right-wing radical background)

Transitional justice (establish responsibility/punish perpetrators of former regime)

Ministry of the Registration with Policing and public Interior, police, the domestic surveillance intelligence intelligence service service

Lustration policies (purge after transition)

Sources: Minkenberg, 2006, p. 38; Capoccia, 2002, p. 51 (adapted for the purposes of the book).

Responding to right-wing radicalism  37 Preventive strategies: state actors and civil society Preventive strategies are the third type of response: they correspond to agreementbased and incentive-based policy instruments and seek the involvement of the population against right-wing radicalism. Preventive strategies can be conceived as means to strengthen democratic institutions and procedures, which is of particular interest for newly democratised states. This book, however, explores two stable liberal democracies. In this type of strategy, state authorities often seek to mobilise non-state actors and associate them to the policy-making process. Subsequently, groups of civil society have been involved in the formulation of preventive measures against the radical right. Civil society is understood as a heterogeneous group of various institutions such as unions, NGOs, and (state-­critical) local initiatives which denunciate state regulation of right-wing radicalism (Rangeon, 2013). Accordingly, this book will not only focus on strategies against right-wing radicalism that have involved state actors but will also investigate the role of civil society in the policy-making process. Preventive responses seek to curb the ideas and actions of radical right-wing groups and may be an alternative or a complement to repressive actions (Minkenberg, 2005, 2017). They often rely on social-integrative measures and target not solely members of radical right-wing groups or parties but the whole of society. Previous research (Greiffenhagen, 1981; Decker, Kiess and Brähler, 2006, 2008, 2012; Mayer, Michelat and Tiberj, 2012; Mayer et al., 2014, 2016) indeed indicates the significant prevalence of radical right-wing views among the population (see Chapter 2). A few programmes, however, seek to specifically reach right-wing extremist activists willing to disengage (exit programmes). This particularly applies for Germany where both state institutions and non-governmental initiatives have become active in supporting activists to leave the extremist subcultural scene. Chapter 2 further explores how the French and German states have respectively developed preventive responses over the last half-century. Table 1.5 briefly summarises the various preventive responses that can be identified. In Table 1.5, initiatives that are sustainable and whose projects are continued over several years are distinguished from short-term funded initiatives. Civic initiatives are numerous but partly consist of time-limited demonstrations against radical right-wing organisations. Similarly, after right-wing outbursts of violence, one-time projects might have been organised locally by state actors and civil society. In contrast, long-lasting programmes have also emerged. Historically, states have developed a broad range of education programmes promoting democratic awareness and political participation such as the German Federal Agency for Civic Education, established in 1952, which produced publications and organised events and seminars to this aim. In France, historic public institutions such as the “Commission Nationale Consultative pour les Droits de l’Homme” (CNCDH) and non-governmental organisations such as “SOS Racisme” have also promoted preventive strategies against racism and to some extent against right-wing radicalism in the long run. In the last decades, authorities have also established programmes struggling against right-wing radicalism – sometimes drawing on the example of civil society’s initiatives like the German

38  Responding to right-wing radicalism Table 1.5  Preventive responses to the radical right Short-term initiatives

Sustainable initiatives

Civil society

Demonstrations and protests

Long-term preventive initiatives against right-wing radicalism, active advocacy against right-wing radicalism among state institutions

State authorities

State-led information campaigns

Education programmes Coordination of preventive programmes

State authorities and civil society

One-time projects

Multiyear national and regional education programmes

domestic intelligence service, which has developed its own exit programmes. Where preventive programmes have been launched, responses to the radical right have become an interdepartmental policy that is not restricted to repressive state authorities. In addition, a range of programmes, especially in Germany, have been implemented in cooperation with local authorities and non-governmental initiatives in an attempt to respond to specific issues and strengthen communities at the local level. These strategies have fostered civil courage to step up against radical right-wing activities (Kleger, 2006). Summary In this chapter, I briefly presented the different types of responses that have been implemented to counter the radical right. Three types of responses could be identified, involving a range of state and non-state actors: party politics, repressive responses, and preventive responses (Table  1.6). Whereas political strategies intend to limit the influence of radical right-wing parties, repressive measures intend to limit both the ideas and actions of the radical right. Finally, preventive measures are often the product of cooperation between various state actors aimed at raising awareness and encouraging commitment against radical right-wing attitudes and actions. In Chapter 2, I examine further how French and German states have made use of these three types of responses over the last decades and attempt to identify patterns in the state’s overall mix between political strategies, repressive measures, and preventive programmes. A classification of state responses to the radical right in France and Germany is proposed according to three main criteria: • • •

whether responses are long- or short- term strategies; whether responses are delivered by political actors, administrative actors alone, or a coalition of state actors and non-governmental organisations; whether the responses are repressive, preventive, or solely political strategies.

Responding to right-wing radicalism  39 Table 1.6  Summary table Long-term strategies

Short-term strategies

Party politics

Ban Isolation Political programmes with depressing effects on some factors that are correlated with sympathy for rightwing radical parties

Ban Isolation Co-optation Collaboration

Repressive responses

Purge strategies Legislation against disloyalty by public officials, transitional justice

Ideas Publication bans Monitoring Legislation against extremist forms of behaviour

Preventive responses

Programmes against political radicalism Education

Protest actions Initiatives against racism or the radical right

Actions Association and party bans Prosecution Surveillance

Note: Shaded cells refer to the scope of the present book.

Methods This book explores how two states have regulated right-wing radicalism. To this end, it relies on qualitative field research conducted in France and Germany. In order to generate knowledge and a fruitful comparative analysis, in-depth interviews were conducted on a semi-structured basis with actors from state institutions and NGOs countering radical right-wing groups. In order to contextualise and refine the information gathered during the interviews, grey literature (parliamentary reports, administrative reports, press articles, studies commissioned by ministries, and so on) was also used.5 The strength of this proceeding is to approach very different institutions and actors through the research process. While investigating policy-making among security authorities, interviews allowed me to make sense of “the arcane and often vaguely worded intelligence reviews, inquiries and legislation” (Davies, 2001, p. 74). Conducting interviews is a methodological choice wherein the interviewer motivates the respondents to talk through questions. Thanks to the dialogue between the respondent and the interviewer, subjective perspectives (e.g. situational interpretations, common beliefs, underlying motives for actions) could emerge. Considering that literature on the responses to the radical right has hardly addressed the representations of policy-makers, conducting interviews with a range of public actors responding to the radical right with different policy instruments seems to be a promising approach. In order to collect comparable empirical material, interviews were conducted with similar actors in both countries.

40  Responding to right-wing radicalism Access to the field A preparatory fieldwork trip was undertaken in Germany in February and March 2013 for previous research (Laumond, 2015). Since my knowledge of the German case was already extensive, I decided to begin with the French fieldwork, which was conducted from December  2013 through November  2014 and later on between November 2016 and March 2017 in order to gather complementary information regarding public law judges. In Germany, the fieldwork took place between January  2015 and January  2016. In each country, the interviews were conducted over a large timespan for two reasons: first, the access to respondents was complicated by factors which caused delays (discussed next); second, this timespan allowed me to go back and forth between the data analysis and the research of appropriate literature in order to further develop the interviewee’s sampling and to adjust the interview grid for future respondents in accordance with the last stage of the analysis. The first objective, as prescribed by Shore, Wright, and Pero, was to follow the policy to identify relevant actors and thus collect empirical data. “At the core is usually some form of intensive interviewing” (Shore, Wright and Pero, 2011, p. 28) in order to become aware of the concerns and perceptions of the policy-makers. Considering time constraints and the comparative character of the research, it seemed unrealistic to interview all actors who played a role in the policy process leading to the implementation of responses to the radical right in France and Germany. Therefore, the inclusion of only the most influential actors was a central element. I first approached state actors identified in the literature and conducted interviews with two categories of actors: the police (including the intelligence service) and members of Parliament who pass laws and control administrative services repressing right-wing radicalism. In France, in particular, some police departments dealing with the radical right are subject to secret défense, an extensive rule which forbids intelligence agents from communicating any information about their occupations.6 For this reason, intelligence services and more generally services subject to secret défense7 were difficult to access. The French tradition of intelligence service has been outlined as one of the most secretive, making it difficult for academics to engage in scientific research (Laurent, 2003; Forcade and Laurent, 2005). When engaging with this field of political studies, that is, the study of intelligence and security agencies, academics may substitute official documents that are notoriously sparse and have been, when available, “sanitised” (Davies, 2001, p. 73) for interviews. This is particularly relevant to the subject at hand, as most documents dealing with the radical right are either classified or at least confidential, leaving very little grey literature open to the public. Access to the first respondents was possible thanks mainly to the connections of my academic peers in both France and Germany who interceded with senior civil servants working for either the police or intelligence service. Nonetheless, getting access to actors from the police and to politicians specialised in issues related to the repression of political radicalism has proven to be a long exercise: it took time – sometimes months – to arrange an appointment. In some cases, the targeted

Responding to right-wing radicalism  41 actors would not give an interview. For instance, in an intelligence unit in a big French city where contact was made through union representatives who usually help with “opening a few doors” to academics working on the police, the agents of this unit never agreed to arrange a meeting. Another French domestic intelligence agency, the “Direction générale de la sécurité intérieure” (DGSI), was difficult to access. Only two interviews could be conducted with former representatives from this institution. However, as the DGSI has been in charge of anti-terrorism and has hardly focused its activities on the radical right in the last decades, several meetings were arranged with actors from the “Renseignement territorial” (RT, another intelligence department) and the intelligence section of the gendarmerie instead (more details on these institutional features in Chapter  3). After the first interviews, snowball sampling (Coleman, 1958) was used to continue field research and to avoid the aforementioned difficulties. Snowball sampling is a “form of non-probability sampling, which is particularly suitable . . . where compiling a list of the population poses difficulties for the researcher . . . and involves identifying an initial set of respondents, and then requesting that they suggest other potential subjects . . . who have relevance” (Tansey, 2009, p. 492). As a matter of fact, some actors, mostly the high-ranking ones (e.g. senior public law judges in France, senior civil servants from the Minister of the Interior in Germany) refused to give an interview. In such cases, the snowballing sampling made it possible to reach these actors thanks to the recommendation of respondents who had been met before. One potential bias of this type of sampling is that interviewees are likely to suggest persons who share similar views or the same outlook (Seldon and Papworth, 1983). In the present case, two factors helped me to avoid this pitfall: first, the respondents who suggested potential interviewees were often active in different departments, thus reducing bias from an institutional point of view. Second, respondents were invited to recommend interviewees with relevant experience regarding responses to the radical right. Especially in France, this selection criterion restricts the number of potential candidates to such an extent that it is unlikely for them to be recommended for their views. Third, in parallel with the snowballing sampling, potential respondents were contacted on my own initiative: some actors accepted interviews even when highly unexpected, particularly in Germany. Accessing the field in Germany was much easier than in France, a fact that can be explained by two factors. First, addressing political radicalism is an official state mission in Germany, whereas the responses to the radical right have not benefited from such legitimacy in France (Chapter  3). My research was often perceived as sensitive by French respondents, whereas German actors identified my research with a historic policy issue. Second, there have been distinct traditions regarding the university-public administration relations in France and Germany. German universities have historically been a reservoir for the administration; therefore, they have actively contributed to increasing the power of the state at the end of the 18th century (Foucault, 2004). Academics became involved in debates about possible techniques allowing state authorities to expand their power. These are the so-called Policeywissenschaft, a recognised academic savoir

42  Responding to right-wing radicalism in German-speaking universities (Laborier, 2011). This tradition has been perpetuated thanks to close relations between the academic sphere and the administration: the proportion of doctors in the German administration is significantly higher than in France.8 In addition, the system of political foundations, which have greatly influenced German politics (Dakowska, 2014), encourages the intertwining of research and policy-making. In contrast, the role of research in French policy-making has historically been weaker, and, when it does occur, senior civil servants are likely to take ownership of ideas produced in academic circles and to translate them into administrative knowledge (Bezès, 2012). All of these elements together can account for the relative openness of German civil servants toward academics and the comparative difficulty of working in the French field. Regarding the types of respondents, I  ultimately designed a sample characterised by a diversity of positions within each institution in order to collect varied perceptions (Table 1.7). Within the political arena, local and national elected representatives were interviewed. Among security authorities and the Ministry of the Interior, senior civil servants with a good overview on policy-making were interviewed, but so were mid-level civil servants, who benefited from precise knowledge of the latest empirical developments. Respondents interviewed regarding the process leading to the implementation of association bans (Chapter 6) were all senior civil servants. They were chosen for their central role in the Table 1.7  Interviews conducted in France and Germany Institution

France

Germany

Parliament

Senate: 3 National Assembly: 3

Bundestag: 7

Local parliaments Paris region: 3

NRW, Brandenburg, Saxony: 5

Security authorities

Police (including domestic intelligence): 9

Criminal police: 5

Gendarmerie: 4

Domestic intelligence: 5

Public law judges: 4

Administrative law judge: 1

Prosecutor – Section for Press and the Protection of Fundamental Freedoms: 1 Criminal prosecutors: 2

Criminal prosecutor: 1

Justice

Official from the Ministry of Justice (intelligence in prisons): 1 Ministry of the Interior (minister’s staff)

2

6

NGOs

3

9

Other ministries

3

3

38

42

All

Responding to right-wing radicalism  43 decision-making process. Among judges, a mix between junior, senior, and leading law practitioners were interviewed, which ensured a greater variety of viewpoints. Finally, among non-state actor respondents were either mid-level members of organisations or the founders of several civil initiatives. The interview process Ultimately, I conducted 42 interviews in Germany and 38 in France. They were split between different institutional arenas, including political institutions such as the national Parliaments and state Parliaments in Germany where the Länder have security powers. In both countries, members of parliaments were chosen according to their involvement in the responses against political radicalism and/or racism. Particular attention was paid to party diversity, and interviews were held with representatives from various parties. The referrals of these interview partners were decisive to arranging meetings with administrative actors from security authorities. In addition, exploring how representatives control security authorities who monitor the radical right, as well as their role as policy-makers, was of particular interest. I should, however, reiterate that the political strategies developed by their parties against radical right-wing parties will not be addressed in this book. A significant part of the interviews was conducted with state actors from security authorities, including the police, the French gendarmerie, and domestic intelligence service (both national and local units). Paying attention to the work performed by the French gendarmerie is meaningful, even if often neglected in police research (Dieu, 2008), because they are present in rural areas, whereas the police are responsible for urban areas. As right-wing movements exist in rural as well as urban areas, investigating this institution was necessary. It also allowed me to compare the perceptions of the gendarmes and the police. Furthermore, interviews were held with judges and prosecutors to explore how they have perceived the radical right and repressed activists. The example of association bans will be thoroughly scrutinised in Chapter 6, which is why interviews were held with public law judges. I should also specify that hate speech is generally judged in France by a specific section called, “la Section presse”, which specialises in offences related to the Law on the Freedom of the Press. Therefore, obtaining access to these magistrates was decisive. The Minister of the Interior and his immediate entourage usually make decisions regarding the proscription of associations (Chapter  2, Chapter  6). For this reason, it was essential to interview senior officials who took part in the implementation of such bans. Eventually, two senior civil servants were interviewed in France and four in Germany (in North-Rhine Westphalia and Brandenburg). Finally, preventive measures against right-wing radicalism have often been formulated by NGOs and increasingly other ministries such as the Ministry for Family Affairs in Germany or the Interdepartmental Delegation against Racism and AntiSemitism in France. In this context, a series of relevant actors were interviewed: six in France and twelve in Germany. As these actors generally extensively communicate on their activities through publications and media broadcasts, a relevant body of literature was collected and analysed as well.

44  Responding to right-wing radicalism During the interview process, several issues played a role from a methodological perspective. Conducting interviews required reflecting on my own position. Whereas French is my mother tongue, German is not. Despite having a very good command of the German language, my perceived foreignness or the occasional linguistic mistake may have affected German respondents’ perceptions of me, perhaps even encouraging them to speak in a more open and relaxed way. In addition, considering that I am a woman and that most respondents were male,9 one may question the role of gender in the interviewing phase. The effects remain difficult to assess. I was always alone except for two interviews in the French field during which there was another male interviewer present. In these particular instances, the hierarchical rank of the male interviewer and his acquaintance with the respondents almost certainly played a greater role in the perception of the respondents than gender. Finally, the fact that I have not been trained as a jurist was a crucial issue in interviews with senior civil servants or judges: being a political scientist in both countries meant being considered as a less legitimate expert on the questions being addressed, which might have had detrimental effects on the interview (Richards, 1996). In the present case, this was rather an advantage: the respondents usually started explaining the judicial rules in great detail, and it was easier to challenge their judicial views with sociological views. These exchanges facilitated the assessment of the perceptions and worldviews of the respondents regarding the handling of right-wing radicalism. The respondents were generally contacted in an email in which I briefly presented myself but not my main theses. In some cases during the interviews, the respondents openly asked about my arguments; in both countries, this happened with high-ranking officials. I decided to answer honestly and indicate my first theses. In so doing, I constantly expounded on the case of the other country (France for German respondents and Germany for French respondents) which encouraged the interviewees to compare their own situation with the experiences of their neighbours and to elaborate on their own practices. The interview usually took place in the respondent’s office. In some rare cases – especially in interviews with NGO representatives – it was organised in a quiet coffee shop. The average length of the interview was 70 minutes, although they ranged from about 45 minutes to two and a half hours. Not all interviews were recorded, which, however, did not necessarily reduce the accuracy of the respondent’s answers (Belson, 1967). The majority of interviews carried out in France were not recorded because the respondents did not consent to recording. Consequently, I adopted a note-taking strategy that focused on the respondent’s reasoning and the attitude of the interviewee; in cases of striking formulations, these were noted down word for word. In contrast, German respondents very rarely refused to be recorded. Two explanations can be identified: 1) they are used to giving interviews about the repression of the radical right and 2) the fact that German is not my native language strengthened the case for recording the interview for linguistic reasons. In sum, the difficulties experienced in gaining access to the field research, especially when considered in a comparative way, have been considered as relevant elements to the analysis. The mere fact that access to security authorities was easier in Germany than in France echoes analytical elements that will be presented in Chapters 3 and 4.

Responding to right-wing radicalism  45

Notes 1 Governmentality is a form of power allowed by an “ensemble formed by the institutions, procedures, analyses, and reflections, the calculations and tactics” that target a population in order to ensure the maintenance of a well-ordered society. The result of governmentality is the development of “specific governmental apparatuses and a whole complex of savoirs (‘knowledge of all the processes related to population in its larger sense’)” (Foucault in Burchell, Gordon and Miller, 1991, p. 93ff.). 2 For a comprehensive overview of the different categories of neo-institutionalism, see Hall and Taylor, 1996. 3 In Kelsen’s Verteidigung der Demokratie (1932), it reads that “a democracy that seeks to act against the will of the majority, that has even tried to act by force, has ceased to be a democracy” (p. 237). 4 Downs refers to “pariah parties” and defines them as parties deemed too extreme by the existing political establishment. 5 There is a wide range of anti-fascist sources in Germany, which will be discussed in Chapter 4. Regarding the precautions that should be taken, see Miller-Idriss, 2017, p. 212f. 6 In France the law defines matters classified as secret défense. Even the internal organisation of the domestic intelligence service is classified as such. 7 This also concerns MPs chairing in parliamentary committees as well as administrative departments from the home office working directly with intelligence service. 8 In 2000 around 7% of the civil servants had a Dr. title in France (Ministère de l’Education Nationale, 2001). In Germany, Hartmann (2004, p. 13) underlines that almost half of senior civil servants and judges have the Dr. title (in addition to academics working for universities), a peculiarity of Germany compared to other Western European countries. 9 Out of 80 interviews, 10 were held with female actors (three in France and seven in Germany).

References Art, D. (2007). Reacting to the Radical Right: Reactions from Germany and Austria. Party Politics, 13(3), pp. 331–349. Backes, U. (1989). Politischer Extremismus in demokratischen Verfassungsstaaten. Elemente einer normativen Rahmentheorie. Opladen: Westdeutscher Verlag. Backes, U. and Jesse, E. (1989). Jahrbuch Extremismus und Demokratie. Bonn: Bouvier Verlag. Bale, T. (2007). Are Bans on Political Parties Bound to Turn out Badly? A Comparative Investigation of Three ‘Intolerant’ Democracies: Turkey, Spain and Belgium. Comparative European Politics, 5(2), pp. 141–157. Baudouin, J. (2000). Dynamique démocratique et intégration républicaine. In: M. Sadoun (ed.), La Démocratie en France. Paris: Gallimard, pp. 333–411. Belson, W. (1967). Tape Recording: Its Effects on Accuracy of Response in Survey Interview. Journal of Marketing Research, 3(3), pp. 253–260. Bezès, P. (2012). Etats, experts et savoirs néo-managériaux. Les producteurs et diffuseurs du New Public Management en France depuis les années 1970. Actes de la recherche en sciences sociales, 193(3), pp. 16–37. Bjørgo, T. (2002). Exit Neo-Nazism. Reducing Recruitment and Promoting Disengagement from Racist Groups. NUPI Paper, 627. Oslo: Norwegian Institute of International Affairs. Bleich, E. (2003). Race Politics in Britain and France: Ideas and Policy-Making since the 1960s. Cambridge: Cambridge University Press.

46  Responding to right-wing radicalism Bligh, G. (2013). Defending Democracy: A New Understanding of the Party-Banning Phenomenon. Vanderbilt Journal of Transnational Law, 46, pp. 1321–1379. Bourne, A. (2018). Democratic Dilemmas: Why Democracies Ban Political Parties. London: Routledge. Bourne, A. (2015). Why Ban Batasuna? Terrorism, Political Parties and Democracy. Comparative European Politics, 13(3), pp. 325–344. Bourne, A. and Casal-Bértoa, F. (2017a). Prescribing Democracy? Party Proscription and Party System Stability in Germany, Spain, and Turkey. European Journal of Political Research, 56, pp. 440–465. Bourne, A. and Casal Bértoa, F. (2017b). Mapping ‘Militant Democracy’: Variations in Party Ban Practices in European Democracies (1945–2015). European Constitutional Law Review, 13(2), pp. 221–247. Burchell, G., Gordon, C. and Miller, P. (eds.) (1991). The Foucault Effect. Chicago: University of Chicago Press. Camus, J.Y. (2009). Die extreme Rechte in Frankreich: Es ist zu erwarten, dass die Landkarte neugezeichnet werden wird. In: N. Langenbacher and B. Schellenberg (eds.), Europa auf dem “rechten Weg”? Rechtsextremismus und Rechtspopulismus in Europa. Berlin: Friedrich Ebert Stiftung, pp. 85–104. Canu, I. (1997). Der Schutz der Demokratie in Deutschland und Frankreich. Opladen: Leske+Budrich. Capoccia, G. (2013). Militant Democracy: The Institutional Bases of Democratic SelfPreservation. Annual Review of Law and Social Science, 9, pp. 207–226. Capoccia, G. (2005). Defending Democracy: Reactions to Extremism in Interwar Europe. Baltimore: John Hopkins University Press. Capoccia, G. (2002). Legislative Responses to Extremism. The ‘Protection of Democracy’ in the First Czechoslovak Republic 1920–1938. East European Politics and Societies, 16(3), pp. 691–734. Capoccia, G. (2001). Defending Democracy: Reactions to Political Extremism in InterWar Europe. European Journal of Political Research, 39(4), pp. 431–460. Coleman, J. (1958). Relational Analysis: The Study of Social Organizations with Survey Methods. Human Organization, 17, pp. 28–36. Dakowska, D. (2014). Le pouvoir des fondations. Des acteurs de la politique étrangère allemande. Rennes: Presses Universitaires de Rennes. Davies, P. (2001). Spies as Informants: Triangulation and the Interpretation of Elite Interview Data in the Study of the Intelligence and Security Services. Politics, 21(1), pp. 73–80. Decker, F., Kiess, J. and Brähler, E. (2012). Die Mitte im Umbruch. Rechtsextreme Einstellung in Deutschland. Bonn: Dietz-Verlag. Decker, F., Kiess, J. and Brähler, E. (2008). Bewegung in der Mitte. Rechtsextreme Einstellungen in Deutschland 2008 mit einem Vergleich von 2002 bis 2008 und der Bundesländer. Berlin: Friedrich Ebert Stiftung. Decker, F., Kiess, J. and Brähler, E. (2006). Vom Rand Zur Mitte: Rechtsextreme Einstellungen und ihre Einflussfaktoren in Deutschland. Berlin: Friedrich Ebert Stiftung. Delori, M., Deschaux-Beaume, D. and Saurugger, S. (eds.) (2009). Le choix rationnel en science politique: débats critiques. Paris: Res Publica. Dieu, F. (2008). Sociologie de la gendarmerie. Paris: L’Harmattan. Downs, W. (2012). Political Extremism in Democracies. Basingstoke: Palgrave MacMillan. Eatwell, R. and Mudde, C. (eds.) (2004). Western Democracies and the New Extreme Right Challenge. London: Routledge.

Responding to right-wing radicalism  47 Fischer, F. and Gottweis, H. (eds.) (2012). The Argumentative Turn Revisited: Public Policy as Communicative Practice. Durham/London: Duke University Press. Forcade, O. and Laurent, S. (2005). Secrets d’Etat. Pouvoirs et renseignement dans le monde contemporain. Paris: Armand Colin. Foucault, M. (2008). The Birth of Biopolitics: Lectures at the Collège de France 1978– 1979. Basingstoke: Palgrave Macmillan. Foucault, M. (2004). Security, Territory, Population: Lectures at the Collège de France 1977–1978. Paris: Seuil. Foucault, M. (1994). Dits et écrits. Paris: Gallimard. Foucault, M. (1980). Omnes et singulatim: Towards a Criticism of ‘Political Reason’ [Lecture 10th and 16th October 1979]. In: S. McMurrin (ed.), The Tanner Lectures on Human Values, vol. 2. Salt Lake City: University of Utah Press, pp. 223–254. Giraud, O. (2001). La Steuerungstheorie. Une approche synthétique de l’action publique contemporaine. Politix, 14(55), pp. 85–93. Gottweis, H. (2003). Theoretical Strategies of Post-Structuralist Policy Analysis: Towards an Analytics of Government. In: M.A. Hajer and H. Wagenaar (eds.), Deliberative Policy Analysis. Understanding Governance in the Network Society. Cambridge: Cambridge University Press, pp. 247–265. Greiffenhagen, M. (1981). Fünf Millionen Deutsche: “Wir sollten wieder einen Führer haben . . .”. SINUS- Studie über rechtsextremistische Einstellungen bei den Deutschen. Reinbek: Rohwolt TB-V. Hall, P. and Taylor, R. (1996). Political Science and the Three New Institutionalisms. Political Studies, 44, pp. 936–957. Hartmann, M. (2004). Elitesoziologie: Eine Einführung. Frankfurt am Main: Campus Verlag. Husbands, C. (2002). Combating the Extreme Right with the Instruments of the Constitutional State: Lessons from Experiences in Western Europe. Journal of Conflict and Violence Research, 4(1), pp. 52–73. Jaschke, H.G. (2011). Analyse der politischen Kultur Brandenburgs im Hinblick auf ihre demokratiestützende oder demokratieproblematische Wirkung. In: Commission of Inquiry of the Brandenburg Parliament “Aufarbeitung der Geschichte und Bewältigung von Folgen der SED-Diktatur und des Übergangs in einen demokratischen Rechtsstaat im Land Brandenburg”. Jaschke, H.G. (1991). Streitbare Demokratie und Innere Sicherheit. Grundlagen, Praxis und Kritik. Opladen: Westdeutscher Verlag. Kelsen, H. (2006 [1932]). Verteidigung der Demokratie: Abhandlungen zur Demokratietheorie. Tübingen: Mohr-Siebeck. Kirchheimer, O. (1961). Political Justice: The Use of Legal Procedure for Political Ends. Princeton: Princeton University Press. Kleger, H. (2006). Toleranz und Tolerantes Brandenburg. Münster: LIT Verlag. Koopmans, R. (1997). Dynamics of Repression and Mobilization: The German Extreme Right in the 1990s. Mobilization, 2(2), pp. 149–165. Koselleck, R. (2006). Begriffsgeschichten. Studien zur Semantik und Pragmatik der politischen und sozialen Sprache. Frankfurt am Main: Surhkamp. Laborier, P. (2011). Les Sciences Camérales, Prolégomènes à toute Bureaucratie Future ou Parades pour Gibier de Potence. In: P. Laborier, F. Audren, P. Napoli and J. Vogel (eds.), Les sciences camérales: activités pratiques et histoire des dispositifs publics. Paris: PUF, pp. 11–30. Lascoumes, P. (2004). La Gouvernementalité: de la Critique de l’Etat aux Technologies du Pouvoir. Le PortiQue, Revue de Philosophie et de Sciences Humaines, pp. 13–14.

48  Responding to right-wing radicalism Laumond, B. (2015). Police et surveillance de l’extrême-droite en Allemagne. Paris: L’Harmattan. Laurent, S. (ed.) (2003). Archives ‘secrètes’, secrets d’archives? Le travail de l’historien et de l’archiviste sur les archives sensibles. Paris: CNRS Editions. Loewenstein, K. (1937). Militant Democracy and Fundamental Rights. The American Political Science Review, 31(3), pp. 417–432. Maegerle, A. (2002). Rechtsextremistische Terror und Gewalt. In: T. Grumke and B. Wagner (eds.), Handbuch Rechtsradikalismus. Opladen: Leske + Budrich, pp. 159–172. Malkopoulou, A. and Norman, L. (2018). Three Models of Democratic Self-Defence: Militant Democracy and Its Alternatives. Political Studies, 66(2), pp. 442–458. Mannheim, K. (1943). Diagnosis of our Time: Wartime Essays of a Sociologist. Trench, Trubner: Kegan Paul. Mayer, N. (1995). Les collectifs anti-Front National. Cahiers du Cevipof, 13, pp. 2–181. Mayer, N., Michelat, G. and Tiberj, V. (2012). Montée de l’intolérance et polarisation antiIslam. In: CNCDH (ed.), La lutte contre le racisme, l’antisémitisme et la xénophobie. Paris: La Documentation Française, pp. 28–47. Mayer, N., Michelat, G., Tiberj, V. and Vitale, T. (2016). Le regard des chercheurs sur les phénomènes de racisme. In: CNCDH (ed.), La lutte contre le racisme, l’antisémitisme et la xénophobie. Paris: La Documentation Française, pp. 207–260. Mayer, N., Michelat, G., Tiberj, V. and Vitale, T. (2014). Un refus croissant de ‘l’autre’. In: CNCDH (ed.), La lutte contre le racisme, l’antisémitisme et la xénophobie. Paris: La Documentation Française, pp. 157–208. Mayntz, R. (2001). Zur Selektivität der steuerungstheoretischen Perspektive. MPIfG Working Paper, 01/2, http://www.mpifg.de/pu/workpap/wp01-2/wp01-2.html, last access on 12.01.2020. Mayntz, R and Scharpf, F. (1995). Steuerung und Selbstorganisation in Staatsnahen Sektoren. In: R. Mayntz, F. Scharpf and Max-Planck-Institut für Gesellschaftsforschung (eds.), Gesellschaftliche Selbstregelung und politische Steuerung. Frankfurt am Main: Campus, pp. 9–38. Miller-Idriss, C. (2017). The Extreme Gone Mainstream: Commercialization and Far Right Youth Culture in Germany. Princeton: Princeton University Press. Ministère de l’Education Nationale (2001). Rapport sur les études doctorales. Paris: Ministère de l’éducation nationale. Minkenberg, M. (2017). Repression gegen Rechtsradikalismus und rechte Gewalt: Strategien und Wirkungen. In: C. Kopke and W. Kühnel (eds.), Demokratie, Freiheit und Sicherheit. Baden-Baden: Nomos, pp. 183–200. Minkenberg, M. (2013). From Pariah to Policy-Maker? The Radical Right in Europe, West and East: Between Margin and Mainstream. Journal of Contemporary European Studies, 21(1), pp. 5–24. Minkenberg, M. (2009). The European Radical Right and Xenophobia in West and East: Trends, Patterns, and Challenges. In: R. Melzer and S. Serafin (eds.), Right-Wing Extremism in Europe. Country Analyses, Counter-Strategies and Labour-Market Oriented Exit Strategies. Berlin: Friedrich Ebert Stiftung, pp. 9–33. Minkenberg, M. (2006). Repression and Reaction: Militant Democracy and the Radical Right in Germany and France. Patterns of Prejudice, 40(1), pp. 25–44. Minkenberg, M. (2005). Repression und Repressionswirkungen auf rechtsradikale Akteure. In: W. Heitmeyer and P. Imbusch (eds.), Integrationspotenziale einer modernen Gesellschaft. Wiesbaden: VS Verlag, pp. 303–324.

Responding to right-wing radicalism  49 Minkenberg, M. (2003). The West European Radical Right as a Collective Actor: Modelling the Impact of Cultural and Structural Variables on Party Formation and Movement Mobilization. Comparative European Politics, 1(2), pp. 149–170. Minkenberg, M. (2002). The Radical Right in Post-socialist Central and Eastern Europe: Comparative Observations and Interpretations. East European Politics and Society, 16(2), pp. 335–362. Minkenberg, M. (1998). Die neue Radikale Rechte im Vergleich: USA, Frankreich, Deutschland. Wiesbaden: Westdeutscher Verlag. Möller, K., Küpper, B., Buchheit, F. and Neuscheller, F. (2015). Evaluation des Aussteigerprogramms für Rechtsextremisten des Landes Nordrhein-Westfalen. Esslingen: Konferenz der Innenminister. Mudde, C. (2007). Populist Radical Right Parties in Europe. Cambridge: Cambridge University Press. Mudde, C. (2004). Defending Democracy and the Extreme Right. In: R. Eatwell and C. Mudde (eds.), Western Democracies and the Extreme Right Challenge. London: Routledge, pp. 193–212. Muller, P. (2000). L’analyse cognitive des politiques publiques: vers une sociologie politique de l’action publique. Revue Française de Science Politique, 50(2), pp. 189–208. Niesen, P. (2002). Anti-extremism, Negative Republicanism, Civil Society: Three Paradigms for Banning Political Parties. German Law Journal, 7, pp. 249–286. Pauvert, B. (1998). Considérations juridiques sur un ‘impératif moral’ (réflexions sur les possibilités d’interdiction du Front National). Le Banquet, 12–13, pp. 247–262. Pedahzur, A. (2004). The Defending Democracy and the Extreme Right: A  Comparative Analysis. In: R. Eatwell and C. Mudde (eds.), Western Democracies and the New Extreme Right Challenge. London: Routledge, pp. 108–132. Pedahzur, A. (2001). Struggling with the Challenges of Right-Wing Extremism and Terrorism within Democratic Boundaries: A Comparative Analysis. Studies in Conflict and Terrorism, 24(5), pp. 339–359. Pytlas, B. (2015). Radical Right Parties in Central and Eastern Europe: Mainstream Party Competition and Electoral Fortune. London: Routledge. Rangeon, F. (2013). Société civile: histoire d’un mot. Uzès: Inclinaison. Rein, M. and Schön, D. (1991). Frame-reflective Policy Discourse. In: P. Wagner, C. Weiss, B. Wittrock and H. Wollman (eds.), Social Science, Modern States: National Experiences and Theoretical Crossroads. Cambridge: Cambridge University Press, pp. 262–289. Rensmann, L. (2003). Populismus und Ideologie. In: F. Decker (ed.), Populismus. Gefahr für die Demokratie oder nützliches Korrektiv? Wiesbaden: VS Springer, pp. 59–80. Richards, D. (1996). Elite Interviewing: Approaches and Pitfalls. Politics, 16(3), pp. 199–204. Rijpkema, B. (2018). Militant Democracy: The Limits of Democratic Tolerance. London: Routledge. Risse-Kappen, T. (1994). Ideas do not Float Freely: Transnational Coalitions, Domestic Structures, and the End of the Cold-War. International Organization, 48(2), pp. 185–214. Rummens, S. and Abts, K. (2010). Defending Democracy: The Concentric Containment of Political Extremism. Political Studies, 58(4), p. 649–665. Saurugger, S. (2013). Constructivism and Public Policy Approaches in the EU: From Ideas to Power Games. Journal of European Public Policy, 20(6), pp. 888–906. Scharpf, F. (2000). Institutions in Comparative Policy Research. Comparative Political Studies, 33(6–7), pp. 762–790. Scharpf, F. (1997). Games Real Actors Play: Actor-Centered Institutionalism in Policy Research. Boulder: Westview Press.

50  Responding to right-wing radicalism Schellenberg, B. (2014). Die Rechtsextremismusdebatte: Charakteristika, Konflikte und ihre Folgen. Wiesbaden: VS Springer. Scheuch, E. and Klingemann, H.D. (1967). Theorie des Rechtsradikalismus in westlichen Industriegesellschaften. Hamburger Jahrbuch für Wirtschafts- und Gesellschaftspolitik, 12, pp. 11–29. Schubarth, W., Kohlstruck, M. and Rolfes, M. (2017). Zukunftsdialog Tolerantes Brandenburg Ergebnisse der wissenschaftlichen Beobachtung. Potsdam: Landtag Brandenburg. Schubarth, W., Kohlstruck, M. and Rolfes, M. (2014). Expertise zum Handlungskonzept der Landesregierung Tolerantes Brandenburg – für eine starke und lebendige Demokratie. Potsdam: Landtag Brandenburg. Seldon, A. and Papworth, J. (1983). By Word of Mouth: Elite Oral History. London: Methuen. Shore, C., Wright, S. and Pero, D. (eds.) (2011). Policy Worlds: Anthropology and the Analysis of Contemporary Power. Oxford/New York: Berghahn. Stöss, R. (1994). Forschungs- und Erklärungsansätze, ein Überblick. In: W. Schroeder (ed.), Rechtsextremismus. Einführung und Forschungsbilanz. Opladen: Springer VS, pp. 23–66. Taguieff, P.A. (1995a). Les fins de l’antiracisme. Paris: Michalon. Taguieff, P.A. (1995b). Anti-lepénisme: les erreurs à ne plus commettre. In: D. MartinCastelnau (ed.), Combattre le Front national. Paris: Éditions Vinci, pp. 213–230. Tansey, O. (2009). Process-Tracing and Elite Interviewing: A  Case for Non-Probability Sampling. In: S. Pickel, G. Pickel, H.J. Lauth and D. Jahn (eds.), Methoden der vergleichenden Politik- und Sozialwissenschaft. Wiesbaden: VS Verlag, pp. 481–496. Thiel, M. (2009). The Militant Democracy Principle in Modern Democracies. Farnham: Ashgate Publishing. van Donselaar, J. (1995). De Staat Paraat? De bestrijding van extreem-rechts in West Europa. Breda: De Geus. van Hulst, M. and Yanow, D. (2016). Policy ‘Frames’ to ‘Framing’. The American Review of Public Administration, 46(1), pp. 92–112. van Spanje, J. and De Graaf, N. (2018). How Established Parties Reduce Other Parties’ Electoral Support: The Strategy of Parroting the Pariah. West European Politics, 41(1), pp. 1–27. van Spanje, J. and van der Brug, W. (2009). The Exclusion of Western European Anti-­ immigration Parties and its Consequences for Party Choice. Acta Politica, 44(4), pp. 353–384. van Spanje, J. and van der Brug, W. (2007). The Party as Pariah: The Exclusion of Antiimmigration Parties and its Effects on their Ideological Positions. West European Politics, 30(5), pp. 1022–1040. van Spanje, J. and de Vreese, C. (2015). The Good, the Bad, and the Voter. The Impact of Hate Speech Prosecution of a Politician on the Electoral Support for his Party. Party Politics, 21(1), pp. 115–130.

2 The radical right and its opponents in France and Germany Contextualisation and evolutions (1950–2017) This chapter is about the various state responses that have been formulated against the radical right over the last half-century in France and Germany. Here, I  will provide information on the different expressions of the radical right in the two countries under scrutiny, along with evidence that political actors have developed strategies in interaction with the activities of radical right-wing groups and parties. The first section will expand on the French case and highlight both the structuration of the radical right around a hegemonic party and the different state tactics that have been developed against the radical right. The second section will focus on the German case and outline how political actors have been forced to adapt to the various modes of expression of the radical right, involving a growing number of actors in their responses. This overview will eventually lead to the establishment of common grounds for comparison of France and Germany.

France: a hegemonic party and the formulation of a strategy based on ostracism Between social movements and the emergence of parties: first responses to the radical right (1950–1979) Responses targeting violent movements (1950s) The 1950s saw the reappearance of the French radical right in a cultural landscape marked by a political narrative wherein France was seen as having been a victim of Nazi Germany, as having resisted, and as eventually having won, over fascism. Consequently, the French radical right could hardly benefit from the Vichy heritage (Minkenberg, 1998a, p. 270). However, a major radical right-wing political movement was popularised by Pierre Poujade, the anti-­establishment leader of the Union for Defence of Tradesmen and Artisans (UDCA), whose members were involved in a conflict with fiscal authorities. After successful protest actions in 1954 and 1955, Poujade ran for the 1956 parliamentary elections. During the Algerian War, he addressed nationalistic issues and adopted

52  The radical right and its opponents antiparliamentary positions with anti-Semitic tones. The campaign was affected by anti-Semitic attacks against Pierre Mendès-France, the former Council President. Despite this, the UDCA entered the Parliament with 11.6 per cent of the total vote and 52 representatives, amongst whom was Jean-Marie Le Pen. This new protest movement faced a few reactions from established parties1 and civil society. Left-wing parties formed an alliance called “front républicain” in order to win the elections. Poujade, who vehemently criticised intellectuals for being disconnected from reality, was notoriously mocked by scholars such as Roland Barthes, who denounced Poujade’s strategic anti-intellectual tones in Mythologies (1957). The political strategies deployed against Poujade’s UDCA did not last due to the short-lived success of the movement: after the 1956 elections, 11 representatives were expelled for illegal campaign activities. In addition, with De Gaulle’s rise, “based on a populist and nationalist cross-class appeal during the Algerian crisis of the Fourth Republic, the Poujadists began to crumble and eventually disappeared” (Kitschelt and Mc Gann, 1995, p. 93). In a similar fashion, another right-wing movement, Rassemblement National, emerged under the leadership of Jean-Louis Tixier Vignancour, a loyal supporter of the Vichy regime. Despite electoral success in 1956 due to the salience of the decolonisation issue, the party disbanded itself in 1958 in the wake of heightened political competition from the UDCA (Chebel D’Appollonia, 1996, p. 289). Yet, TixierVignancour remained in political life and ran for presidential elections in 1965; he only won “5.27 per cent of the votes, far from the 15 per cent expected” (Ibid.). Eventually, he joined the conservative camp in the legislative elections and later supported Pompidou’s bid for the presidency (Kitschelt and Mc Gann, 1995, p. 93). These examples illustrate the attractiveness of radical right-wing movements that have used salient issues among the French electorate. Although these movements were identified as opponents by the mainstream parties, political responses remained limited since the support for these parties has rapidly crumbled and they have eventually disappeared due to their own structural weaknesses. Concerning right-wing extremist social movements, “Jeune Nation” (JN) was created in 1949. Composed of former Pétain supporters, the group defended nationalist, authoritarian, and anti-Communist views. In light of decolonisation, JN also supported French Algeria and took part in the political unrest on 13th May 1958. The French government expeditiously dissolved JN, along with other nationalist groups2, a few days later. JN, however, did not accept this governmental decision: its leader, Pierre Sidos, created the “Parti Nationaliste” (PN), a group which advocated for the establishment of a racist and authoritarian state and had the same programme as Jeune Nation. Despite a party ban in February 1959, the group continued its activities, and, one year later, the French authorities consequently initiated legal proceedings against the leaders of the movement, who were charged with reconstitution of a disbanded association and violation of state security. In short, repressive policy responses were concentrated on right-wing extremist movements prone to act violently, whereas radical right-wing parties were mostly curbed with political means.

The radical right and its opponents  53 Political tactics against right-wing extremist activism (1960s) The main concern of state authorities in the early 1960s was to deal with the “Organisation Armée Secrète” (OAS), a right-wing terrorist organisation created in 1961 and composed of militaries and civilians willing to keep Algeria under French domination. Since its creation, the OAS had carried out violent attacks in France and Algeria, causing around 2,000 deaths, according to provisional figures (Kauffer, 2002). Besides this, the group attempted to murder political leaders such as President Charles De Gaulle and Minister for Cultural Affairs André Malraux in 1962. Facing its first right-wing terrorist attacks since the reestablishment of a democratic regime, President De Gaulle and his parliamentary majority imposed the creation of the State Security Court (Cour de sûreté de l’Etat, CSE), an ad hoc court in charge of judging political violence in times of peace. Its specificity was twofold: first, the President of the Republic and the Justice Minister had the exclusive authority to initiate the prosecution, and the court ruling could not be appealed. Second, the CSE was introduced to repress the members of the OAS but was later used by the executive to prosecute other political enemies, notably radical left-wing activists and autonomists (Codaccioni, 2015). Not only were the leading members of the OAS judged by the CSE, but so were over 3,000 members from related right-wing extremist movements (Kauffer, 2002). Right-wing terrorism was a major issue for the executive in the wake of Algerian independence, and its repression was ruled by one principle: political violence was to be handled by derogation, with the prosecution strategy planned by political actors. The second half of the 1960s was a turning point: whilst state authorities were concerned with the violence of left-wing groups, OAS members were granted amnesty.3 This concern culminated in May and June 1968 when massive demonstrations and confrontations between left-wing activists and the police occurred. Despite the violent activism of right-wing extremist groups such as “Occident”,4 the government exclusively banned left-wing associations with a decree from 12th June 1968. From 27th October 1968 onwards, outbreaks of violence reoccurred in Paris between Occident and left-wing activists, causing the police difficulties in supervising the demonstrations. The government eventually outlawed the radical right-wing organisation on 31st October 1968. The group’s activities continued with “Ordre Nouveau” (ON), which was created in 1969. ON remained active until it was banned in 1973 for altercations with members of the left-wing adversary “Ligue Communiste”. Right-wing movements were vivid in the 1950s and 1960s. Political actors developed tactics rather than coherent strategies. In the political arena, the responses formulated against political parties such as the UDCA consisted of occasional alliances against the radical right. Reactions against violent deeds were formulated by the executive and were twofold. First, the executive made great use of association bans to repress right-wing extremist groups. Second, political terrorism was handled by an ad hoc court strongly influenced by the government. This suggests that the regulation of right-wing radicalism is separated between the political arena where radical parties are handled and the policy arena where political violence is repressed.

54  The radical right and its opponents Sporadic state responses and growing mobilisation of civil society (1970s) Student and worker mobilisations in 1968 served as a “catalyst for the emergence of a new ‘modernist’ right” (Kitschelt and Mc Gann, 1995, p. 93). The early 1970s marked the ideological renewal of the French radical right with several intellectual movements such as “Groupement de Recherches sur la Civilisation Européenne” (GRECE) and “Club de l’Horloge”. Alain De Benoist, a former support of the OAS and founding father of the GRECE, was awarded the Essay Prize from the French Academy for his book Vu de droite in 1977. Members of the think tank Club de l’Horloge who held top positions within ministries tried to spread their political views in their departments (Laurens, 2014). In 1979, however, a media campaign pointed out the tight relationships between the president’s entourage and the Club, which cost these think tanks the support of the conservative press and intellectuals. Accordingly, supporters of the new right within public administration were stigmatised and had to distance themselves from their administrative careers (Ibid.). These examples show that radical right-wing groups, as long as they do not use violent means, might find acceptance within the system, but to a very limited extent. Involvement in a group of the new right in the 1970s was still stigmatising in French society and eventually led to ostracism. In the political arena, the party Front National (FN) was created in 1972 by former leaders of Ordre Nouveau and was characterised by a will to collaborate with other nationalists, especially with notables.5 In this way, Jean-Marie Le Pen became the president of the FN. In the meantime, FN officials asked activists from Ordre Nouveau to leave their small groups and their (violent) methods6 in a bid to find acceptance within the political arena. The party kept oscillating between the extremist fringe of the radical right and the so-called conservative reactionaries (Dézé, 2012, p. 62). This allowed the party to survive without facing a ban. However, the FN remained on the margins of French politics (Ibid.). Despite the emergence of a modernist radical right, the 1970s were also marked by assaults against immigrants and violent clashes between right-wing and leftwing groups. In the wake of the economic crisis policy-makers politicised the issue of immigration and framed it as a public problem (Laurens, 2009). Accordingly, public discussions arose in order to tighten immigration conditions. In this context, Ordre Nouveau organised a meeting called “Stop uncontrolled immigration” on 21st June  1973 in Paris. Groups from the radical left set up counter-­ protests despite a demonstration ban. Clashes occurred between right-wing activists, left-wing activists, and the police. As a result, state authorities eventually banned Ordre Nouveau (along with Ligue Communiste, one of the opponents) a week later. Meanwhile, large-scale ratonnades7 were carried out in several French towns against Algerians. In December  1973, a bomb exploded in front of the Algerian Consulate in Marseille, killing four and injuring twelve. The attack was claimed by the right-wing group “Charles Martel”.8 The political positioning of the government was ambivalent: although this wave of racist violence was largely triggered by the political agenda, the government did react and imposed bans on

The radical right and its opponents 55 violent groups. In addition, this chain of events saw the mobilisation of part of the population in solidarity with immigrants. The 1970s were characterised by a double dynamic. On the one hand, the new right emerged with think tanks that gained importance. On the other hand, the radical right was still characterised by activists prone to use violence. The responses formulated by the authorities against these groups remained sporadic and intervened when policing demonstrations became too troublesome. The use of association bans was the most common instrument to repress political extremism. Civil society initiatives proved their capacity to mobilise against the radical right. Between the consolidation of the FN and right-wing street violence: towards a diversification of political responses (1980–2001) Political responses to FN’s electoral success (1980–1990) Immigration continued to play a significant role in French politics. During the electoral campaign for municipal elections in 1983, the mainstream right developed a polarisation strategy towards the incumbent Socialist Party (PS), which promoted immigration-friendly positions and used anti-immigrant rhetoric like the radical right (Minkenberg, 1998a; Perrineau, 1993). Since the FN had historically put the issues of immigration and security on its agenda (Schain, 1987), the party certainly benefited from this political context and made its first breakthrough in the 1983 municipal elections in the small town of Dreux in the Centre region (16.7 per cent of the votes). Jean-Marie Le Pen’s list reached 11.2 per cent of the votes in the European elections of 1984, 8.8 per cent in the cantonal elections of 1985, and 9.6 per cent in the regional elections in 1986. The FN also thrived with the renewal of party executives coming from the Club de l’Horloge and the GRECE, who imposed a more moderate discourse9 and new communication style, privileging political respectability (see Dézé, 2012). In light of this success, the mainstream right tolerated alliances with the radical right on the local scale. In this way, Conservatives integrated FN candidates into its list in Dreux and eventually won the election. Yet, at the national level the mainstream right vehemently refused to make electoral alliances with the radical right, which remained isolated. Despite an anti-immigrant campaign in 1981, the Communist leader, Georges Marchais, strongly reacted to the FN’s success in Dreux and developed anti-FN stances in his public speeches.10 Likewise, the Socialist Party organised a public gathering against the FN in Dreux. The demonstration gathered around 5,000 participants and attracted local and national elected representatives from the left as well as intellectuals and artists. Left-wing activists unequivocally chose a stigmatisation strategy to counter the FN, and this gathering was the starting point of a large mobilisation against the FN. Outside the political arena, the 1980s started with racist assaults as a direct continuation of the 1970s. Between 1983 and 1990, the Ministry of the Interior officially registered 23 xenophobic homicides carried out in France against persons of North African background.11 Meanwhile, social mobilisation against racism

56  The radical right and its opponents surfaced in the form of civil marches such as, most notably, the March for Equality and Against Racism, involving demonstrators who were mostly unemployed, lived in the suburbs, and were the descendants of immigrants. These demonstrations were a window of opportunity for left-wing parties to take a stand against the radical right: activists from the Socialist Party grasped this opportunity, got involved in the mobilisation, and created the association “SOS Racisme”. In fact, this move was an attempt to engage in one of the rare causes that could unite the left without directly accusing the Socialist government of leading a conservative economic policy after the liberal turn of 1983 (Juhem, 2001). In view of the success of this initiative, the PS subsequently developed a political strategy against the radical right based on political initiatives outside the institutions. MP Cambadélis initiated a manifesto against the FN in 1990 that was supported by other socialist MPs, and SOS Racisme soon became one of the most structured groups struggling against the FN with preventive means (meetings, petitions, and so on) and benefiting from the institutional support of the Socialist Party and the government (Mayer, 1995). Reactions to the FN, however, did not only come from party activists. Approximately 150 demonstrations against FN meetings or demonstrations took place between 1983 and 1992 (Mayer, 1995). Non-governmental organisations promoting human rights and trade unions first got involved, but new initiatives that specifically countered the radical right were also launched. Amongst them, the first “Section Carrément Anti Le Pen” (SCALP), an anti-fascist movement, was born in 1984, and their actions consisted of protests where the FN held meetings. The SCALP used the FN’s own brutality to justify their violent actions. In this respect, these anti-fascist activists replicated the methods used by left-wing groups in the 1960s and 1970s. In addition, SCALP sections worked closely with the association REFLEXes, a network of students editing a newspaper, monitoring and countering radical right-wing argumentation (Soulet, 2004, p. 199). In so doing, anti-fascist groups became one of the most vivid forces among civil society to counter right-wing radicalism. This is a peculiarity of French politics which strongly contrasts with the West German case where the anti-fascist scene was historically weaker (Minkenberg, 1998a). Besides the anti-fascist mobilisation, 250 intellectuals wrote an appeal in spring 1990 denouncing the increasing popularity of the FN and inviting people to resist against “fascist racism”. Within a few months, the call gathered around 20,000 signatures. The same year, after the desecration of the Carpentras’ cemetery (discussed next), the network “Ras L’Front” was founded, federating over 100 citizen collectives actively engaging against the FN (Soulet, 2004). These civil society organisations did not only counter the FN but also vigorously criticised the ethno-centric politics of the Conservatives, the projects of the socialist government (Contamin and Weil, 1995), and the violent policing of protests against the radical right. Moving back to the tactics of established political parties, shortly before the 1986 legislative elections, the socialist majority introduced proportionality in an electoral system traditionally characterised by a majoritarian system. Consequently, the FN won 35 seats and formed a fraction. It has been discussed whether

The radical right and its opponents  57 Mitterrand conveniently chose to introduce proportionality in order to defeat the Conservative Party with the indirect help of the radical right. But the Conservative Party won the 1986 elections, repealed the law, and isolated the FN. In some regions, however, the Conservative Party did not gather a majority of the vote and needed the radical right to win or keep regional assemblies. Therefore, FN candidates managed to obtain vice-chairs in various regions. In the meantime, JeanMarie Le Pen developed an ambivalent strategy, vacillating between adaptation to political codes and a strategy of demarcation. On the one hand, he nuanced his nativist discourse which granted the party an unprecedented credibility. The FN managed to gain issue ownership on two main subjects, immigration and security. On the other hand, Le Pen pursued a strategy of provocation. A renowned example was his statement in 1987 on gas chambers: he was invited on a popular French radio broadcast and stated that these were a “detail of the history of the Second World War”. In reaction, the Minister of the Interior suggested passing a bill criminalising the denial of crimes against humanity (Bleich, 2011). The French criminal justice sentenced Le Pen to fines on several occasions: between 1985 and 1999, Le Pen was convicted 12 times – nine of the charges involved racist or anti-Semitic utterances. But, in fact, Le Pen exploited these charges to cultivate his image as an outsider and did not seriously challenge the popularity of the FN. Regarding the sub-cultural sphere, the French case has been characterised by lower levels of militancy. As a matter of fact, the subcultural scene has been either absorbed by the FN or marginalised. The number of activists prone to violence peaked in the 1980s with an estimated figure of 1,000–1,500 (Minkenberg, 1998a, p. 286) – a trend that decreased in the 1990s. In the 1980s, neo-Nazi groups such as the “Fédération d’Action Nationale et Européenne” (FANE) perpetrated racist violence (bomb attacks, arson attacks), and the government banned the association. The same year, the FANE leader, Mark Frederiksen, reformed the association under a new name: the “Faisceaux Nationalistes Européens” (FNE). After procedural shortcomings, the government eventually managed to ban the group in 1987. But the dissolved organisation was soon absorbed by the “Parti Nationaliste Français et Européen” (PNFE), another nationalist structure. This episode first and foremost confirms the use of bans by political authorities to repress the most violent fringes of the radical right. It also underlines the difficulties that state authorities have had with the legal ban procedure, as radical right-wing groups demonstrated afresh their ability to reform under another name. Wave of violence and politicisation of responses (1990–1999) In the night between 9th and 10th May  1990, former members of the PNFE attacked the cemetery of Carpentras, in the south of France: Jewish tombs were vandalised with anti-Semitic graffiti, and remains were exhumed. This event had a profound impact on the population and on the strategies against the radical right. The Representative Council of Jewish Institutions in France called for a march against racism and anti-Semitism on 15th May  1990, which gathered around 200,000 people in Paris, and, for the first time since 1944, the President of the

58  The radical right and its opponents Republic took part in the event. The civic mobilisation around the anti-Semitic desecration of graves in Carpentras demonstrated the significance of the participation of the population in countering the radical right. Regarding legal responses, the desecration occurred in light of revisionist utterances. Besides Jean-Marie Le Pen’s statements, the 1980s saw a multiplication of revisionist statements, especially within academia (Igounet, 2000). This broader context played a significant role upon the policy-making of the Parliament. The National Assembly passed the Gayssot Law, punishing racist utterances and the Holocaust denial in July 1990.12 Despite vivid debates around the opportunity for political actors to vote on a “memory law”,13 the law embodied one of the most striking legislative responses to right-wing extremism in the early 1990s. The second half of the 1990s was marked by a decrease of violent attacks with a racist or anti-Semitic motive. The years 1997–1998 recorded high tolerance rates, which have partly been explained by the enthusiasm generated by the Football World Cup and the French “black-blanc-beur” team (CNCDH, 1999). The FN remained an isolated party for the major part of the French population. In 1991, 76 per cent of the respondents did not want Jean-Marie Le Pen to become minister, against 84 per cent in 1994 (in Dézé, 2012, p. 113). However, the radical rightwing party registered growing success: in 1992, the FN received 13.7 per cent of the votes for the regional elections. In 1995, Le Pen gathered 15 per cent of the votes at the presidential elections. This series of success, despite isolation, can partly be explained by the French electoral system that favours small parties at regional elections and charismatic figures at the presidential election. This example finally shows that the many hate speech prosecutions of Le Pen did not deter his electoral basis from voting in favour of the FN. Right-wing violence did not vanish in the second half of the 1990s. A recurrent question for the political establishment has been the link between the sub-cultural scene carrying out violent attacks and the FN. Shortly before the second round of the 1995 presidential election, the murder of a young Moroccan, Brahim Bouarram, carried out by activists from the sub-cultural scene during the traditional demonstration of the FN, revived a public debate around the porosity between the two spheres. In the meantime, a growing number of incidents involving the FN’s security branch, Département Protection Sécurité (DPS), occurred. The DPS progressively became the object of growing concerns regarding its implication in violent confrontations. In 1998, parliamentarians from the Socialist majority launched a parliamentary investigation committee in charge of inquiring about the activities of the DPS (see Chapter 5). The opposition criticised the decision of the incumbent majority to establish this committee: they suspected the socialists of bearing political interests while using parliamentary instruments to repress the radical right.14 Responses to the FN have been embedded in (and complicated by) political competition dominated by two mainstream parties struggling for political leadership in the institutions. Subsequently, it is not surprising that the political context strongly impacted the conclusions of the parliamentary report on the DPS. A  split within the FN occurred in 1998: a group of former militants seceded from the FN under the leadership of Bruno Mégret and created the

The radical right and its opponents  59 “Mouvement National Républicain” (MNR). This temporarily weakened the FN, structurally and electorally. With regard to this aspect, the parliamentary report on the DPS underlined the limitations of a ban and emphasised the importance for the police to actually exercise control and for prosecutors to demand severe sanctions against violent members of the DPS – hence delegating responses to the radical right to penal institutions. Facing FN’s electoral ups and downs and right-wing social mobilisation (2000–2017) In April 2002, Jean-Marie Le Pen qualified for the run-off of the presidential elections at the expense of the incumbent, Prime Minister Lionel Jospin. This political earthquake generated an unprecedented mobilisation against the FN. Massive street demonstrations occurred throughout France between the two rounds of voting: on 1st May 2002, between 400,000 and 900,000 people demonstrated in the streets of Paris. Left-wing parties encouraged their electorate to vote for Le Pen’s contender, Jacques Chirac, and for the first time, established parties implemented the front républicain, an electoral strategy wherein the majority of voters would actually gather in order to prevent the radical right from winning elections. Regarding the subculture, a landmark event also occurred in 2002. On Bastille Day during the military parade on the Champs Elysées, Maxime Brunerie, a young man who was a member of the radical right-wing group “Unité Radicale”, attempted to kill Chirac. He missed the president and was eventually arrested by the police. Unité Radicale was banned on 6th August 2002. The former members of the organisation scattered, and a few of them created the “Bloc Identitaire”. 2000s: de-mobilisation of anti-FN groups and new political strategies from the conservative camp After 2002, votes for the FN constantly declined between 1999 and 2010 (Dézé, 2012, p. 130). Consequently, the FN’s public financial aid dropped, and the party experienced material deprivation. At the same time, growing levels of tolerance toward ethnic and religious minorities were observed, notedly between 2005 and 2008 (Mayer, Tiberj and Michelat, 2012). Organisations such as “Ras l’Front” lost influence, and most local sections stopped their activities. From 2004 onwards, anti-fascist SCALP sections have reorganised around other causes. During his presidential term (2007–2012), President Nicolas Sarkozy co-opted the FN’s issues to attract its electorate and subsequently contain the radical right. Under his leadership, the Conservative Party was characterised by a form of radicalisation on the issues of immigration, national identity, and law and order (Haegel, 2011; Mondon, 2014). However, co-optation of issues already owned by the FN had the unintended effect of anchoring its radical right-wing discourse in public debate. Between 2009 and 2012, tolerance towards Muslims and North Africans declined by 8.7 and 9.2 per cent, respectively. A link between the increasing xenophobic attitudes among the French population and the outspokenness of the

60  The radical right and its opponents radical right-wing frame on immigration was explicitly established (Mayer, Tiberj and Michelat, 2012, p. 47), strengthened by co-optation strategies. 2010s: FN’s “de-demonisation” strategy in interaction with public opinion and political strategies In 2011, Marine Le Pen took over the FN’s presidency and engaged a transition to take the party out of political isolation. As party president, she has popularised the so-called dédiabolisation (de-demonisation) strategy. Its purpose was to portray the FN as a normal political party, which has supposedly been unfairly vilified. The national secretary of the FN purged the party of its most extremist elements, especially those coming from the nationalist-revolutionary branch of the radical right. This strategy has allegedly lowered the percentage of ultras within the executive levels. Yet some relationships between Marine Le Pen and members from the most extremist fringe of the French radical right still exist, and some FN mayors have collaborated with Identitarian activists to develop their communication strategy (Lebourg, 2015). This highlights the ambiguity of the de-demonisation strategy. As a matter of fact, this strategy has hardly been different from the one set up in the 1980s when the FN transitioned from a strategy of adaptation to the system to one of demarcation from the system in order to make the FN more approachable (Dézé, 2012). Facing the electoral fortune of the FN at its own expense, the Socialist Party has increasingly been constrained to call to vote for its conservative counterparts, which prevented the radical right from winning any regional presidency in 2015. In 2017, François Fillon, the leader of the Conservatives, who was defeated in the first round of the presidential elections, acted similarly when he backed Emmanuel Macron for the run-off. However, other party representatives showed reluctance to act and criticised the limits of such a political strategy; Jean-Luc Mélenchon, for example, the leader of the radical left-wing party “La France Insoumise” (Unbowed France), refused to endorse the centre-right candidate. The underlying argument was that responding to radical right-wing parties should not be restricted to short-term electoral tactics that are bound to repeat themselves. In the meantime, street demonstrations did not attract as many protestors against the radical right as in 2002,15 suggesting the limits of protest mobilisation in front of a phenomenon that has been growingly integrated in the political arena. Finally, the 2017 presidential elections highlighted the polarisation between two types of strategies: on the one hand, the front républicain, thought of as an emergency response, and on the other hand, the development of alternative political narratives with an expected deterring effect on the support for radical right-wing parties. The popularity of right-wing social movements among the youth: a challenge to state responses? Since 2000, new right-wing movements have appeared in France. The “Bloc Identitaire”, and its youth section, “Géneration Identitaire”, stands out as an

The radical right and its opponents  61 interesting case. This group, which primarily addresses the younger generations, rallies for the rejection of Islam and the promotion of ethnocentric views. The movement has not engaged in electoral participation and has rather privileged “community-building practices (concerts, sports, excursions) as well as contentious actions aimed at setting the media agenda” (Castelli Gattinara and Bouron, 2019, p. 4). Public responses formulated against this movement were twofold. First, the French justice fined the Bloc Identitaire, which was considered as the reformation of the outlawed Unité Radicale, in 2008. They were also sentenced to conditional sentences in 2017 for the illegal occupation of a mosque and more recently to mandatory sentences for posing as members of security forces to strop migrants from entering France. Second, local initiatives attempted to stop or prevent the actions organised by the Identitarians. When they organised a national campaign in 2014, preventing public transport passengers from getting assaulted, civil initiatives, mainly anti-fascist groups and the remaining sections of Ras l’Front, intervened. This led to a police intervention with stop and search actions and identity checks. Other institutionalised NGOs such as SOS Racisme or Ligue des Droits de l’Homme reported the intentions of the Identitarians in order for the authorities to ban their happenings. Although several actions could be prevented, the actions of the Identitarians have generally remained difficult to counter due to both the secretive character and the legality of most of their activities. In fact, the movement has remained lively and has even been exported to neighbouring countries such as Germany (Hentges, Kökgiran and Nottbohm, 2014). Another right-wing social movement has been led by the popular stand-up comedian Dieudonné M’Bala M’Bala. He has been one of the most prominent humourists of the last decades among the French youth but also developed anti-Semitic messages in his shows from the mid-2000s onwards.16 Particularly striking is his gesture called the quenelle, performed by pointing one arm diagonally downwards with the palm facing down while touching the shoulder with the opposite hand, which has achieved a wide acceptance among his audience. State responses formulated against Dieudonné have been numerous even though (or perhaps because) the humourist has enjoyed great popularity. Since 2006, the stand-up comedian has been convicted on 20 separate occasions for various offenses, including anti-Semitic utterances, Holocaust denial, defamation, and insults, thanks in large part to NGOs countering anti-Semitism who have brought civil actions against the stand-up comedian. Another actor, the Minister of the Interior, got Dieudonné’s show Le Mur banned in 2014 (see Chapter 6). In addition, the comedian has been convicted by criminal justice for tax evasion, money laundering, and misuse of company property in 2014 and 2019. In sum, a wide range of state and non-state actors have used legal measures to counter the controversial radical right-wing comedian. Finally, the last few years have been characterised by a renewed attempt by the political authorities to outlaw right-wing extremist associations. The year 2013 is especially noteworthy.17 That year, five bans against right-wing extremist associations were imposed after a young anti-fascist activist, Clément Méric, was killed

62  The radical right and its opponents in a fight with skinheads. The political process leading to the implementation of this repressive measure will be further examined in the last chapter of this book (see Chapter 6). Assessment of the French case Table 2.1 summarises the responses formulated by public actors against the radical right in France. Reactions to right-wing radicalism have mostly occurred after violent events that considerably affected public opinion. Civil society initiatives have proven to be responsive to the FN in the 1980s and 1990s and to xenophobic violence carried out by right-wing extremist groups. State responses are divided into two categories. First, there are political tactics such as the isolation of the FN and the co-optation of its discourse by the mainstream right, that belong to party politics and target political opponents. Second, there are policy responses implemented by administrative actors and the justice which mostly consist of repressive measures to curb right-wing violence. At this point, it remains challenging to identify the logic behind policy responses implemented against right-wing radicalism. In particular, the policy-making process of these measures remains invisible: the perceptions of French administrative actors of right-wing radicalism are uncertain, and so are their interactions with political actors while repressing the radical

Table 2.1 Actions taken against the radical right since 1950 in France Political actors (MPs, government)

Administrative actors Non-state actors and the justice system

1950–1979 Association bans (18) Association bans Establishment of ad hoc Prosecution (partly jurisdictions, then amnesty failed) of right-wing activists Policing street Absence of parliamentary mobilisation strategies

Street mobilisations of left-wing groups and associations

1980–1999 Association bans (6) Association bans New repressive legislation Prosecution Isolation strategy against the Policing street FN vs. rare alliances at the mobilisation local level Co-optation of radical rightwing discourse

NGOs countering the radical right: street mobilisation, publications

2000–2017 Association bans (15) Isolation strategy Co-optation of radical rightwing discourse Development of alternative narratives

Reflux of organised non-state actors involved in countering the radical right

Association bans Prosecution Policing street mobilisation

The radical right and its opponents  63 right. Similarly, the relations of non-state actors with political and administrative actors also remain fragmentary. The next chapters will address these knowledge gaps in order to unveil the dynamics of the regulation of right-wing radicalism at the policy level.

Germany: a fragmented radical right facing political rejection Responses to the radical right before 1989 1950–1979 in the German Federal Republic: between repression and reconciliation Right-wing radicalism in Germany has been most recently marked by the postWorld War II era when the authoritarian National Socialist culture established under the Third Reich was ousted to a marginalised subcultural zone of German society (Dudek and Jaschke, 1984). After liberating Nazi Germany, the Allies jointly denazified the country. The influence of the American allies between 1945 and the early 1950s on the establishment of a new system was significant, as the Allies did not only control the detention of former national socialist functionary elites, the ban of the National Socialist Workers’ Party and its successor organisations, but also the repression of communist demonstrations and propaganda campaigns after the Cold War started (Rigoll, 2013, p. 459). The repression of members of the Communist Party, such as the activists from right-wing extremist organisations, was similarly justified by the fact that these movements were responsible for the fatal blow of the Weimar Republic. Concerning the National Socialist heritage, laws voted under the Nazi regime were all repealed, Nazi institutions were disbanded, and the so-called Berufsverbot (employment ban) was imposed. It consisted in prohibiting former Nazi officials or persons hostile to the Allies’ project from access to a range of professions, including ones from the civil service and key positions in private companies. About 150,000 soldiers and over 50,000 civil servants were dismissed from the administration and under a life-time ban. However, the National Socialist legacy remained vivid in society and among the highest ranks of the German administration. The German population still expressed anti-Semitic attitudes: a quarter of the respondents declared themselves anti-Semitic in 1949. In 1952, the number was one-third of the respondents (Fischer and Lorenz, 2009, p. 91). Meanwhile, denazification took a milder path than in the immediate after war. In 1950, the incumbent, Chancellor Konrad Adenauer, introduced a decree (Adenauer-Erlass) that listed the political organisations considered a threat to democracy. Amongst those, the German Communist Party (KPD) and the right-wing extremist “Sozialistische Reichspartei” (SRP). The members of these organisations were therefore excluded from the civil service. In addition, the Berufsverbot against former servants of the Third Reich and other NS-officials was abolished, and a large number of former

64  The radical right and its opponents National Socialists reclaimed their positions in the German administration. Rigoll (2013) sees in this decree a compromise both satisfying the government’s desire to build a militant democracy and appeasing the families of former NSsupporters. Meanwhile, political discussion arose around bans on two parties, the SRP and the KPD, which were implemented in 1952 and 1956, respectively. In addition, 28 different right-wing extremist associations were outlawed by Ministers of the Interior in Länder between 1950 and 1959 because their “aims or activities contravene[d] the criminal laws or [were] directed against the constitutional order or the concept of international understanding” (Art. 9§2, Basic Law). In practice, the government predominantly proscribed associations close to the KPD (Gerlach, 2012). The SRP ban did not mean, however, the extinction of right-wing extremist parties. The “Deutsche Reichspartei” (DRP, created in 1950) tried to exist in the new democratic regime and to win political hegemony over the radical right after the SRP was outlawed (Dudek and Jaschke, 1984). Yet, their political influence remained very limited: the DRP received no more than 1.1 per cent of the votes in the 1953 general elections and 3.8 per cent of the votes in the Landtag elections in 1955 and 1959. Because of its weakness, few political responses were formulated against the DRP. The German party system was engaged in a permanent search for centre-right political hegemony during the first 14 years of the German Federal Republic and therefore narrowed the political opportunities for other right-wing parties. If radical right-wing parties were contained in the political arena, anti-Semitic violence resurfaced in the 1950s in the Federal Republic. The German Bundestag attempted to develop a bill ensuring the Jewish population legal protection (Sonderschutz) against anti-Semitic attacks. Facing protest from the Central Council of Jews in Germany, who did not want to become the object of specific legislation after the traumatic National Socialist experience, the bill was finally postponed. In 1959, however, anti-Semitic graffiti by DRP activists was found on the Cologne synagogue after it was rebuilt, which triggered a wave of anti-Semitic slogans in various West German cities. This resulted in a domestic and international controversy, with concerns about Germany being caught up by its past. A year later, political representatives from the Bundestag unanimously passed a law repressing insults to human dignity and disturbance of public peace (Fischer and Lorenz, 2009). Voted under exceptional circumstances, this bill has been both part of the Vergangenheitsbewältigung (coping with the past strategy) and a further instrument contributing to the legal repression of the radical right. Between 1960 and 1966, the various state governments proscribed 14 rightwing extremist associations. At the federal level, one association, “Bund Deutscher Nationalsozialisten”, was outlawed in 1969. Most bans were imposed when associations were believed both to have refused democratic rules and to jeopardise national safety (Gerlach, 2012). At the party level, the “Nationaldemokratische Partei Deutschland” (NPD) was born in 1964 from a fusion of the DRP with small nationalist parties in an attempt to form a “national camp”. In the 1960s, the aftermath of National Socialist ideology remained central in the ideological

The radical right and its opponents  65 background of the NPD’s leaders. With the growing influence of left-wing and student movements, the NPD got involved in a “necessary cultural struggle” (von Thadden, leader of the NPD in Dudek and Jaschke, 1984, p. 287) and portrayed itself as the opposition party in light of a grand coalition (CDU-CSU/SPD). In reaction, the government threatened to use the interdiction instrument in order to ban the NPD in 1966. The threat reached its zenith in September 1968 when the Federal Minister of the Interior declared that the intelligence service was collecting pieces of evidence in order to make a ban possible. Despite electoral success in Länder between 1967 and 1969 (7.9 per cent and 9.8 per cent of the votes in Hessen and in Baden-Wurttemberg), the NPD eventually failed to enter the Federal Parliament. The NPD’s leaders realised too late that the violent confrontations, which took place alongside the 1969 electoral campaign and were extensively covered by the media, contributed to the loss of votes (Ibid., p. 351). The idea to outlaw the party was eventually abandoned. In state parliaments with an NPD fraction, right-wing extremist MPs remained ostracised by established parties. In the 1970s, the NPD lost a significant share of its electoral support. In the meantime, a myriad of movements with loose connections between each other and weak radical right-wing mobilisation structures emerged (Minkenberg, 1998b). 1980–1989: towards the reunification of right-wing radicalism Heidenreich and Wetzel (1989) describe the situation of the radical right in the 1980s as an organised confusion, whereas the French radical right party had already experienced its first electoral success. In West Germany, the early 1980s were characterised by an increase of violent acts with right-wing motivations (Kailitz, 2004). In the late 1970s the number of small right-wing organisations sharply increased, and their activities continued to affect West Germany in the 1980s (Renner, 2008). In this regard, the German federal government outlawed the right-wing paramilitary sports group “Hoffmann” in January 1980, because of the involvement of its members in violence against counterdemonstrators and the police. Yet, it did not prevent its former members from carrying out murders. In September 1980 an explosive device placed at the entrance of the Munich Oktoberfest killed 13 persons and injured over 200. Gundolf Köhler, a supporter of the Hoffmann sports group who died during the attack, was recognised as guilty of the bombing attack. The leader of the group, Karl-Heinz Hoffmann, was prosecuted by German justice. Despite the impossibility of proving his involvement in the attacks, the Court of Nuremberg sentenced him to nine and a half years in jail for a series of related criminal offences. Similarly, the Federal Minister of the Interior proscribed the neo-Nazi association “Volkssozialistische Bewegung Deutschlands” in 1982 for aggravated offences carried out by its activists (Kopke, Virchow and Botsch, 2014). It could not be proven that they had participated in attacks with a right-wing motive. The court, however, charged them with other offences: conspiracy to commit crime, extortion, illegal possession of a weapon, and the handling of stolen goods. Six of its activists were given mandatory sentences of up to six years. These examples inform us about the major difficulties

66  The radical right and its opponents encountered in the prosecution of extremist activities, whose perpetrators were eventually convicted of offences other than the politically motivated ones. In light of increasing levels of right-wing violence, the German Chancellor, forced by foreign admonitions, requested a study measuring right-wing extremist attitudes among the population (Otto and Merten, 1993). It stated that 13 per cent of the electorate shared right-wing extremist views, whose mainstays are National Socialist views of history and hatred of foreign groups, democracy, and pluralism. Almost half of the respondents who were classified as belonging to the most extreme fringe (i.e. 6 per cent of the electorate) approved of politically motivated violence and terrorist acts carried out against persons (SINUS-Studie, 1981). It became clear that a right-wing extremist ideology had been present among the West German population and had expanded beyond the electorate of right-wing extremist parties. Regarding parties from the radical right party family, eight were active during the 1980s, and the German intelligence service monitored their activities. But the radical right stayed electorally insignificant until the late 1980s with the success of the “Republikaner”. Unlike the French radical right, the radical right in Germany hardly experienced any impetus to moderate its discourse. Minkenberg (1998b) points out the polarisation of German politics between the agendas of two new social movements: part of the SPD (to which the Greens were added later on) on the one hand, and the CDU/CSU on the other hand. The Christian Democrats embraced a wide ideological spectrum and put issues traditionally developed by radical right-wing parties on their political agenda. Therefore, little political space was given to the radical right. In 1983, however, a new radical right-wing party, the “Republikaner”, was created in Bavaria. Claiming to draw its inspiration from the French FN (Jaschke, 1993), the Republikaner’s programme was openly radical even if the party clearly distanced itself from the National Socialist ideology (Minkenberg, 1998b). The Republikaner expanded beyond Bavaria and launched sections that remained small in Länder where the “Deutsche Volksunion” (DVU, a right-wing extremist party) and the NPD were already established. Between 1987 and 1989, a range of former officials from established parties (CSU, CDU, also SPD) joined the Republikaner, lending the party some credence (Ibid.). In 1989, the Republikaner experienced their first electoral success when they entered the (West) Berlin Parliament as well as the European Parliament, giving the party some financial stability as well as new members. However, in 1989, when the Berlin Wall collapsed, the Republikaner lost one of their key issues, reunification, and faded away in the late 1990s. GDR: laissez faire as an answer to right-wing extremist subculture? Reunification has been a turning point for the radical right in Germany. The integration of the former German Democratic Republic (GDR) in the Federal Republic of Germany (FRG) rapidly let emerge the issue of the radical right as a public concern, first in East Germany and later on in the West. In the former GDR, the Communist regime considered right-wing radical views and actions as a Western influence. Furthermore, the regime developed a doctrine according to which

The radical right and its opponents  67 socialism could not provide any socio-economic or political grounds for fascism (Wagner, 2002). This was strengthened by the fact that right-wing radicalism did not exist in the form of political organisations in a society characterised by an authoritarian political regime. Right-wing radicalism thus emerged through propaganda offences and acts of violence, or through terrorist activities. Wagner (2002) sees a turning point in the 1970s in both the FRG and the GDR with the emergence of new youth movements, which developed their own way of life composed of right-wing radical elements. The violent skinhead scene became particularly visible in the GDR: their activities were monitored by the security authorities but were not publicly addressed (Röpke and Speit, 2013). Whereas Western skinheads were usually connected to traditional right-wing extremist groups, their Eastern fellows evolved in relative isolation. In the 1970s, the economical context in the GDR was characterised by a growing gap between the development of needs and the possibilities to fulfil them. In addition, the political commitment of the population was particularly low. The youth consequently turned its back on the system and aspired to develop its own identity (Ibid.). From the beginning of the 1980s, a right-wing subculture arose among the youth in the GDR and rapidly spread. Progressively, a right-wing, authoritarian, nationalistic, and violent youth culture emerged with a range of groups, from skinheads to hooligans (Wagner, 1995). The antinational character of the GDR was contested by right-wing groups, who rallied for the interests of the German people (Wagner, 2002) and found some support among the youth. A right-wing assault during a music concert in East Berlin’s Zion Church in 1987 triggered the first state responses to right-wing violence in East Germany. State repression followed with the Security of State, the Stasi, who prosecuted 800 activists organised in 36 groups (Stöss, 2010). Generally, the number of legal proceedings against right-wing violent activists grew rapidly from 1988 and eventually led to mandatory sentences. However, during the reunification and the dissolution of the GDR, the right-wing extremist scene managed to successfully rely on the structures that had thrived in the 1980s. After the wall fell, the connections between right-wing groups from the East and the West intensified. Meanwhile, a significant part of the East Germans experienced difficulties with the integration to the FRG and felt like second-class citizens. These difficulties materialised with growing unemployment rates as well as the feeling of having been colonised by the West (Funke, 1998). The salience of immigration and asylum issues in the beginning of the 1990s strengthened the feeling among part of the former GDR population that East Germans were not a political priority. This has led to a consolidation of xenophobic and racist attitudes (Wagner, 2002). Post-reunification period: state failures in responding to the radical right In 1989, the Republikaner received 7.1 per cent of the total vote for the European elections. In 1992, the party scored 10.9 per cent of votes at the state elections in Baden-Württemberg. The DVU concentrated its efforts in North Germany,

68  The radical right and its opponents which proved quite successful in Länder, such as Bremen where the DVU entered the Parliament in 1991 with six mandates (Stöss, 2010). Right-wing radical and extremist parties benefited from a political issue put on the agenda by the Christian Democrats during the campaign for the general elections in 1990: the reform of asylum. The issue, indeed, became salient in the German public debate, and the controversy continued until 1993, long after the elections. Facing the success of the radical right, mainstream parties responded mildly and distanced themselves to a greater (Social Democrats, the Greens, and the Liberals) or lesser (Christian Democrats and the Christian Social Union) degree from the radical right. Responses mostly came from the executive. In 1989 the domestic intelligence offices in Länder started monitoring the Republikaner with open-source intelligence in order to identify whether they had anti-democratic purposes, which would have allowed the use of covert intelligence sources. In 1992 the process was still ongoing. This long examination phase was a result of a political strategy at the federal level (Jaschke, 1993). As mentioned before, the NPD was also subjected to this strategy as the government regularly threatened to outlaw the party. The sequence between 1989 and 1992 was the illustration of this strategy: different Ministers of the Interior publicly discussed the opportunity to classify the Republikaner as extremist, a stigma which still holds heavy political consequences in Germany. This discussion, which stretched over two years, encouraged Republikaner’s voters and sympathizers to distance themselves from a party that was under the threat of being monitored by security authorities. This technique was a means to damage the Republikaner’s political credibility and to ensure their disqualification from the political game (Ibid.). Eventually, radical right-wing parties’ success ended: whereas the DVU did not manage to keep their parliamentary fraction for more than one legislature and lost their significance to the NPD, the Republikaner never managed to consolidate their electorate. They could not adopt the FN’s strategy, based on an explicit anti-system tactic (Minkenberg, 1998b) because of the long-lasting threat of a party ban. Unlike the FN, the Republikaner did not become hegemonic over the German radical right. Although the Republikaner tried to establish themselves in East Germany, they faced the accusation of coming from the West and seeking to implement Western programmes without paying attention to Eastern specificities (Stöss, 2010). In contrast, the NPD developed its networks among the subcultural milieu in East Germany from 1996 onwards and became the “gravitation field” among the radical right (Ibid., p. 134). The NPD eventually managed to enter two state parliaments, in Saxony and Mecklenburg-Western Pomerania, but remained ostracised by the established parties. Having sketched out the development of right-wing radical and extremist parties in the 1990s, it is necessary to outline the activities of the right-wing subculture in reunified Germany and the subsequent state reactions. In the 1990s, the number of skinheads in Germany was estimated at 8,000, of which 2,000 were in West Germany (Farin and Seidel-Pielen, 2002). Skinheads often took the form of loose associations of neo-Nazis (e.g. “Kameradschaften”) which are difficult to proscribe. They became so visible that academics qualified the subcultural right as

The radical right and its opponents  69 a “wave” and often wrote about an “escalation” (Renner, 2008, p. 30). The 1990s started with violent scenes of arsons and public demonstrations against immigrants or asylum seekers, particularly, but not only, in East Germany.18 Violent riots occurred in Hoyerswerda (Saxony) in 1991 and in Rostock-Lichtenhagen (Mecklenburg-Western Pomerania) in 1992. In Rostock, the tension was fuelled by the media coverage of immigration, described as an “unlimited asylum flood” (Geelhaar, Marz and Prenzel, 2012, p. 65). The asylum debate was the milestone media event in 1992 (Kleger, 2006). On the evening of 22nd August  1992 in Rostock-Lichtenhagen, thousands of demonstrators attacked an accommodation facility for asylum seekers and the neighbouring residence for Vietnamese ­contract-workers19 with stones, bottles, and flares. The riots continued the following day, and a group of armed right-wing radicals eventually stormed the Vietnamese residence and set the lower levels on fire, which triggered applause from the other protestors (Prenzel, 2012, p. 21). With regards to the state reactions to such outbreaks of violence, police and intelligence authorities failed to foresee, control, and stop the riots in several cases. Police officers were deployed in insufficient numbers, were ill-equipped, and were not replaced by other officers after their shift was over (Ibid., p. 24). Accordingly, the police were incapable of protecting asylum seekers and Vietnamese guest workers. In addition, parliamentary inquiry committees were established, but these committees quickly turned out to be stages where political dissensions between the Christian Democrats and the Social Democrats prevailed. Overall, no responses were specifically formulated against the radical right in MecklenburgWestern Pomerania. Finally, 215 preliminary proceedings against participants of the riots in Rostock-Lichtenhagen were introduced before the Court. A large majority of them were dropped for lack of evidence. Judges eventually ruled on 44 cases: 11 defendants were sentenced to jail – from seven months to three years. Of those, seven were put on probation (Ibid.). Demonstrators, who passively took part in the riots by preventing the police and firemen deployments and heated up the most extremist rioters, were not prosecuted. Besides the most visible outbreaks of violence, German security authorities registered an increasing number of attacks with a right-wing motive. A peak was reached in 1992 with more than 2,500 violent acts, and the trend slightly decreased in 1993 with over 2,000 violent acts with a right-wing motive. In 1994, there was no significant difference with the levels of violence in 1991 (Bundesamt für Verfassungsschutz, 1997). Right-wing violence, in terms of proportions and severity, remained disproportionally higher in the new Länder (Renner, 2008). This fact led to the well-spread prejudice that right-wing radicalism was an Eastern problem,20 a result of the GDR heritage. The first measures taken by state authorities were: 1) the prosecution of violent offenders, 2) the proscription of associations implicated in right-wing violence (especially in the West where authorities already had experience with the banning process),21 3) the expansion of the departments monitoring right-wing extremist movements in the police and the intelligence service, and 4) the systematic prosecution of right-wing extremists regardless of the nature of the offences (Jaschke, 2001).

70  The radical right and its opponents Right-wing violence and protests that took place in the course of the 1990s highlighted the importance of consistent state and civic reactions against xenophobia and right-wing violence. In some Eastern Länder where the democratic deficit was the highest, the development of initiatives emerging from civil society and promoting democracy became essential and was promoted later on by political authorities.22 The late 1990s subsequently saw the emergence of several nongovernmental organisations engaged in the promotion of democratic values and against right-wing radicalism at the federal or the “Land” level (see Chapter 4). Most of these initiatives surfaced at a time of global concern about the growth of the radical right and at a moment when public funding was easier to obtain. In the 1990s, Brandenburg was marked by a series of violent attacks receiving considerable attention in the German media. An illustration is the murder of Amadeu Antonio Kiowa,23 a guest worker from Angola, who died after having been attacked by a right-wing extremist group. The media pressure on Brandenburg’s Minister President conducted him to publicly recognise that Brandenburg had an issue with right-wing extremism. In fact, his government formulated a comprehensive programme, “Tolerantes Brandenburg”, in 1998 in order to counter rightwing radical attitudes and violence. The leading idea of this programme, which will be thoroughly presented in Chapter 5, was to involve both state authorities (police, schools, social services, and so on) and civil society in order to counter right-wing extremist groups and spread democratic values and promote civil courage among the population (Kleger, 2006). The 1990s were a turning point for the state responses in reunified Germany too. Facing an unprecedented wave of right-wing violence, political actors and state authorities were challenged and conceded major shortcomings, as illustrated by the riots in Rostock-Lichtenhagen. The state administration in the Eastern Länder underwent deep changes during the 1990s, especially in the police and the intelligence services (Gravier, 2008). The failure on the part of the police is striking in East Germany, where informal right-wing structures thrived. In the meantime, a network that would become notorious a decade later, the “Nationalsozialistischer Untergrund” (NSU), surfaced. Its members joined the subcultural radical right in Thuringia soon after reunification. In 2013, the federal parliamentary inquiry committee on the NSU officially recognised the difficulties that the intelligence service and the police had had to dam right-wing extremism and to stop right-wing violence. 2000–today: consolidation of the public policy against right-wing radicalism In 2000, a series of right-wing violent events was widely covered by the media. In June, Mozambican Alberto Adriano was beaten to death by a group of rightwing extremist activists in Dessau (East Germany). A month later, a bomb attack hurt ten repatriates from Russia – a majority of them were Jewish – in Düsseldorf (West Germany). Political actors then discussed the opportunity to ban the NPD that acted as the ideological arm of the radical right (Wolf, 2006). Eventually,

The radical right and its opponents  71 Chancellor Gerhard Schröder decided to fill a suit in order to ban the NPD. On 2nd October 2000, the new synagogue in Düsseldorf was set on fire. The destruction of the worship place triggered strong reactions from civil society and from political actors.24 On this occasion, Schröder officially called for an “uprising of all decent people” (Aufstand der Anständigen). The implications of this appeal were substantial. A series of federal preventive programmes against right-wing radicalism and xenophobia were set up (Roth, Lynen von Berg and Benack, 2003). State measures formulated against the radical right were henceforth 1) enlarged to the spectrum of preventive responses, and 2) included non-governmental organisations that brought their own competences and infrastructures in the policy-making process. A first preventive initiative had been introduced between 1992 and 1996 by the Federal Minister for Women and Youth, Angela Merkel, to combat violence. However, the approach was restricted to the handling of aggressive persons  – some of them being right-wing extremist activists. In the newer programmes, two main elements were introduced: right-wing radicalism is not solely considered as a problem limited to the youth anymore, but rather as a societal problem. In addition, federal projects received more public funding in order to reach rural areas. In 2003, around 3,600 preventive projects against right-wing extremism and xenophobia were funded with a budget of over €200  million (Ibid., p.  9). In the meantime, a group of journalists from the Tagesspiegel and Frankfurter Rundschau published in 2000 a list of the victims of right-wing violence. They highlighted the large discrepancy between the officially registered cases and their list: in contrast to the official statistics of the Minister of the Interior, which had reported 26 victims of right-wing violence (Kleffner and Holzberger, 2004), they listed a death toll of 93 names. No later than in 2001, the various Ministers of the Interior agreed upon a new statistics system: until then, “the registration system focused primarily on extremist crimes against the state, which had the intention to threaten the fundamental democratic principles of Germany” (Glet, 2009, p. 4). For this reason, a wide range of crimes were not counted as right-wing motivated. The new registration system includes new criteria to the definition of political motivated offences: offences targeting a person for reason of his or her actual or alleged political views, nationality, ethnicity, race, colour of skin, religion, world view, origin, physical appearance, disability, sexual orientation, or social status (Kleffner and Holzberger, 2004) should be included to the politically motivated crime statistics. Following this reform, “it has become easier to register a criminal offence as xenophobic or anti-Semitic even if the perpetrator refuses to admit his/ her motives” (Peucker, 2006, p. 2). In short, the mobilisation of non-­governmental actors to denounce state authorities’ failures in handling right-wing-motivated offences pushed the government to reform its system. Moving back to the repression of the NPD, the application for a ban landed in the Constitutional Court as defined in the Constitution (see Chapter 3). In February 2003, the Constitutional Court refused to outlaw the NPD because the party’s direction was infiltrated by too many state undercover officers in place among the NPD’s direction. In contrast, 15 bans were imposed against right-wing extremist

72  The radical right and its opponents associations between 2000 and 2010. This suggests both the protection that parties have enjoyed thanks to the privilege of parties (see Chapter 3) and the highly structured radical right outside the political arena in Germany. In fact, the possibility to bring another application in order to ban the NPD occurred again in 2005–2006 but was not implemented until 2013 for fear that constitutional judges would reject it again. The second try ended with a rejection from the Constitutional Court in February 2017, because the NPD does not have the means to overthrow the free democratic basic order (see Backes, 2018). The Nationalsozialistischer Untergrund (NSU) The early 2010s were marked by the revelation of the existence of a right-wing terrorist network in Germany, the NSU. Three of its members, Beate Zschäpe, Uwe Böhnhardt, and Uwe Mundlos, carried out ten murders between 2000 and 2011 without being arrested by the police.25 They were also known from the security authorities for multiple offences with a right-wing motive.26 Several parliamentary inquiry committees and investigative journalists unveiled the existence a network of relationships which provided the means for the trio to live and carry out their racist murders. In fact, in 2019, the police were still looking for 497 right-wing extremist persons who were presumably living underground or abroad. When the NSU murders were revealed in 2011, domestic intelligence services and the criminal police were blamed for not arresting the group. For this reason, the federal and a series of state parliaments have set up parliamentary inquiry committees to examine to which extent and for which reasons state authorities have failed in stopping the NSU. It has reactivated the debates around the state’s blindness towards right-wing extremism.27 Flagship associations against racism and investigative journalists have agreed upon the fact that state authorities have had difficulties in recognising right-wing motivations  – especially among the police. As seen previously, a group of investigative journalists with the help of NGOs has updated the unofficial list of death tolls caused by right-wing violence. The discrepancy between the official number of casualties and the number of victims identified by civic initiatives has remained high despite the modification of the registration system for politically motivated crimes in 2001. In 2018 the authorities had registered 83 casualties, whereas the NGOs had agreed on 169 victims since 1990. In the aftermath of the revelations of the NSU murders, political actors took the first measures: amongst them, the creation of a central unit in order to facilitate communications between the various administrations monitoring and repressing right-wing extremist groups (Laumond, 2015). In addition, parliamentary inquiry committees on the NSU made recommendations to state actors. Security authorities had to reopen old cases in order to verify whether the crimes were indeed right-wing motivated and hence re-evaluate the number of casualties of right-wing violence (from 46 to 83 officially registered victims). Furthermore, the parliamentary inquiry committees made recommendations to the justice and to the parliamentary committees controlling the activities of intelligence services

The radical right and its opponents  73 in order to improve their efficiency. In sum, the NSU revelations have led to a nation-wide reflection in order to improve the public policy enabling the containment of radical right-wing movements. Demonstrations The right to demonstrate is a strongly protected right in the German legal system. An administrative tradition allows registered demonstrations as long as public order and safety can be ensured. In practice, the conditions for a demonstration ban are stringent, and most right-wing extremist demonstrations are allowed even if they require a large police presence. Since the 1990s, the place of demonstrations within the action repertoire of the German radical right has dramatically increased (Virchow, 2011). The NPD and its youth organisation have been specifically active in this regard. Over the years, some demonstrations have become traditional for right-wing extremist movements. A  good illustration is the yearly procession to commemorate the Allied bombing campaign in Dresden in February 1945. In response to right-wing street mobilisation, there have been an increasing number of counterdemonstrations organised by opponents. Associations involved in the struggle against the radical right have developed long-standing projects with the purpose of lastingly countering the organisation of right-wing events.28 The handling of right-wing radical demonstrations by state and non-state actors will be further analysed in Chapter 5.

Box 2.1  The appropriation of abandoned villages by right-wing extremist communities Besides demonstrations, right-wing movements have developed a more subtle form of space appropriation: the völkische Siedlung (nationalist settlement). These settlements are composed of families willing to settle down in rural areas, far from the influence of urban areas in order to preserve the Volksgemeinschaft (national community). These groups have taken over small villages that had been either abandoned or sparsely populated and have conducted a community-centred way of life, cultivating their own products and passing on their worldviews to their children. Such families have gotten involved in the daily activities of local institutions such as kindergarten, schools, local associations, fire brigades, or local parties (Heinrich Böll Stiftung, 2012). This strategy seeks to consolidate right-wing radical attitudes. These settlements exist in all of Germany; even Mecklenburg-­Western Pomerania (East), where real property remains cheap (Amadeu Antonio Stiftung, 2014), is particularly affected. To date, 26 settlements have been identified in Germany. However, NGOs such as the Amadeu Antonio Foundation suspect the existence of a wider network of settlements.

74  The radical right and its opponents 2010s: new challenges for responses to right-wing radicalism In 2014, Germany experienced a major street mobilisation with the protest social movement Pegida (“Patriotische Europäer gegen die Islamisierung des Abendlandes”). Although demonstrations occurred in the whole country, the bulk of the movement lied in Saxony (Jennerjahn, 2015). Pegida organised its demonstrations every Monday, recalling the Monday demonstrations which took place in the former GDR in 1989. Between November 2014 and January 2015, the Pegida demonstrations in Dresden attracted from 3,000 to 25,000 persons  – making Pegida one of the most significant right-wing mobilisations of the last decade. In parallel, the German radical right was marked in 2013 by the emergence of a new party, “Alternative für Deutschland” (AfD), which has rapidly become a successful right-wing radical party and entered state parliaments, and eventually in 2017 the federal parliament where they won 94 seats (out of 709). Although the AfD first developed eurosceptic positions, the party was soon influenced by the national conservative wing and has henceforth focused upon traditional rightwing issues, immigration or national identity, these issues being paired with xenophobic positions (Decker, 2015, p. 115). During the 2013 general elections, the issue of immigration proved to be more important for the AfD voters than its eurosceptic positions (Schmitt-Beck, 2014). An ideological overlapping existed between Pegida and the AfD, which has been illustrated by the on-going relationships between AfD officials and the organisers of Pegida (Rucht, 2015). The emergence of a successful radical right-wing party has had a significant impact on the discourse of political actors. Political actors, mainly the Christian Democrats and the Social Democrats, have thereby chosen an approach willing to engage with Pegida demonstrators described as worried citizens. The federal President and the federal Minister of the Interior hence encouraged debate with them. The electoral success of the AfD has been identified as an acute danger by its political competitors. Among mainstream parties, the Christian Democrats have eventually accommodated the right-wing radical discourse, developing antiimmigrant tones.29 In contrast, the Green Party has advocated for immigrationfriendly positions and positioned themselves as an alternative to the radical right. In terms of policy responses, the federal intelligence service in 2019 started monitoring the activities of the AfD with open-source intelligence and put its youth organisation under surveillance (covert-source intelligence) as well as its most radical party wing, “Der Flügel”. In this respect, the authorities reacted as they did with the Republikaner in the late 1980s. With respect for civil society, numerous counterdemonstrations and marches against Pegida and the AfD have been organised all over Germany. Furthermore, preventive projects against right-wing extremism have started formulating responses to radical right-wing discourse and not solely against traditional violent activists with a blatant neo-Nazi ideology. Assessment of the German case Table  2.2 summarises the responses formulated in Germany by public actors against right-wing radicalism. Strategies against right-wing radicalism have

Association bans (49) Party ban (1) Reintegration of former National Socialists // Exclusion of Neo-Nazis from public institutions Co-optation of radical right-wing issues by the Christian Social Union GDR: laissez-faire attitude until 1988

Association bans (14) Discursive acknowledgement of failures in countering right-wing violence Programmes promoting democracy

Association bans (29 in total, 15 for the first decade) Party ban (failed twice) or threat to ban a party Preventive strategies against extremism Co-optation of radical right-wing positions by the CSU

1950–1989

1990–1999

2000–present

Political actors (MPs, government)

Association bans Prosecution of criminal offences with a radical right-wing background Party ban Monitoring right-wing extremist movements Participation in preventive programmes Policing street mobilisation (demonstrations)

Association bans Prosecution of criminal offences with a radical right-wing background Monitoring right-wing radical and extremist movements Policing riots

Association bans Party ban Monitoring of right-wing extremist groups Prosecution of criminal offences with a right-wing background

Administrative actors and the justice

Table 2.2 Actions taken against the radical right since 1950 in Germany

Participation in state preventive programmes Monitoring and criticism of state actions against the radical right

Civic initiatives countering the radical right Monitoring and criticism of state actions against the radical right Participation in the first state preventive programmes

Studies measuring right-wing extremist attitudes Sporadic anti-fascist actions

Non-state actors

76  The radical right and its opponents been developed by state actors, and their scope was extended in the wake of reunification with the involvement of civil society actors. In opposition to the French case, responses to the radical right have been mostly limited to the most extremist fringe of the radical right due to the lack of any significant radical right-wing party. This, however, did not prevent the structuration of a violent right-wing subculture. Some shortcomings of, as well as the increasing importance of civic society in, the strategies against right-wing radicalism have been mentioned. Since public actors have historically conceived strategies against right-wing radicalism involving policy means, the interactions between the various policy-makers are more visible than in the French case. For instance, I could underscore tense interactions between political actors and civil society regarding the repression of right-wing violence. However, the reasonings of policy actors and their interactions shall be more thoroughly explored and compared to the French case in order to identify the mechanisms of the regulation of right-wing radicalism.

Concluding remarks France has seen the emergence of a hegemonic radical right-wing party, whereas the German radical right has long been fragmented between its different extremist components. The FN has been an old electoral threat. In contrast, German radical right-wing parties have not managed to establish themselves as longlasting political forces. The sub-cultural radical right, however, has thrived  – especially since reunification. In contrast, the French sub-cultural right has remained weak. In light of these differences, I  discussed the various responses formulated against the radical right. France and Germany have been using similar instruments in order to repress right-wing radicalism. In addition, similar patterns could be identified in France and Germany: the 1950s indeed saw the progressive reintegration of former Nazi followers into the German civil service, and the 1960s saw former right-wing activists from the OAS granted amnesty in France. In both countries, the central role of political actors was intentionally stressed: they are involved in strategies implemented in party politics (e.g. ostracism, co-optation) which are covered by the literature of radical right-wing parties. However, they also take part in policy responses involving cooperation between other actors (administrative actors, groups from civil society). The policy-making process of these measures, which involve discussing the interactions taking place between political, administrative, and civil actors along the policy process has remained invisible – especially in the French case. This blind spot shall be addressed to understand how right-wing radicalism is regulated. Accordingly, the next chapters will expound on the following questions: how do policy-makers involved in countering the radical right think? How do they make decisions, and eventually how do they interact and produce actual responses to the radical right?

The radical right and its opponents  77

Notes 1 “Established party” is understood here as a party that has existed for longer and that has structured the French party system. 2 The ban also concerned Front d’Action Nationale, Phalange Française, and Parti Patriote Révolutionnaire. 3 The French strategy of giving amnesty to the members of the OAS was initiated by De Gaulle and continued under the mandate of Mitterrand. The generals involved in the highest ranks of the OAS all received amnesty between 1966 and 1968. 4 “Occident” was created in 1964 and chose a confrontation course with left-wing groups. From 1964 onwards, their propensity for violence has been identified as a problem by French security authorities: see Algazy, 1989. However, the authorities chose not to ban the movement because the case was too weak and waited for another opportunity. 5 This mainly refers to the traditional old conservative radical right (e.g. members from Poujadist movements and supporters from French Algeria). 6 Between January 1971 and May 1973, Ordre Nouveau was involved in 82 violent acts (statistics from the police in Lebourg et al., 2014). 7 In the French language, a raton is a young rat. However, this term was taken over in the context of decolonisation in order to designate persons from North Africa. The word ratonnade was hence coined to describe violence committed against persons with a migration background, usually a North African one. 8 “Groupe Charles Martel” was a radical right-wing armed organisation carrying out attacks specifically targeting Algerian persons and institutions. Their activities started in 1973 and lasted until the middle of the 1990s. 9 Étienne Balibar rather describes this new rhetoric as the “euphemisation of exclusion”. 10 On 6th September 1983 in Dreux, Georges Marchais asked the voters to elect political opposition to the FN: “I know the FN and I know its leader, the former fractious one from the OAS, Le Pen. The FN openly represents the most hideous racism, violent deeds and words against democracy, hysteria against communism”. 11 Evidence of the xenophobic character of crimes must be provided in order to be reported in the data from the Ministry of the Interior. This data must be interpreted with caution as a significant number of attacks remain unreported or unsolved. 12 “Contrary to what some observers have implied, the desecration of the Jewish cemetery in the town of Carpentras took place after the Gayssot bill was officially under consideration and thus was not itself a spur to getting anti-racism on the agenda” (Bleich, 2003, p. 157). 13 For some of its opponents, despite a fundamental rejection of Holocaust denial, it is not a state prerogative to impose an official version of history. Public figures such as René Rémond or Simone Veil took position against the bill. Unsurprisingly, the FN also was a major opponent of the project and kept on demanding the abolition of the Gayssot Act around the 1990s. 14 In 2019, a parliamentary inquiry committee was launched on the initiative of the leftwing radical fraction “La France Insoumise” in order to investigate the state responses to right-wing extremist groups in contemporary France. Similar criticisms were made to the committee chaired by a MP from La France Insoumise, and eventually, some Conservative representatives refused to endorse the conclusions made in the final report. 15 Between 140,000 and 250,000 people demonstrated in Paris for the usual May Day march in 2017: and among these demonstrators some advocated for Macron, while others refused both candidates qualified for the second round. 16 For more information on Dieudonné’s trajectory: see Jobard, 2017. 17 In 2019, a series of right-wing radical extremist groups were also banned by the government: this concerns Bastion Social and six other related associations.

78  The radical right and its opponents 18 Assaults against residential buildings inhabited by families with migration background occurred in Solingen (North-Rhine Westphalia) in 1993 and in Mölln (Schleswig-­ Holstein) a year later. 19 The communist regime in the GDR established working contracts with citizens from allied countries, mainly Poland and the Czech Republic, but also with allies outside of Europe (e.g. Vietnam, Mozambique, or Angola). 20 Despite this, Stöss (2010) underlines that radical right-wing attitudes have been higher in West Germany than in East Germany until the late 1990s. 21 Fourteen bans were imposed between 1990 and 1999. Five bans were effective at the federal level. Amongst the nine bans formulated by Ministers of the Interior in Länder, only two occurred in the new Bundesländer, both in Brandenburg. 22 Not all Eastern states have implemented comprehensive programmes against the radical right. In fact, there has been a high degree of heterogeneity in how each state has handled right-wing radicalism. Saxony in particular has been reluctant to invest in prevention against right-wing radicalism. 23 The name of this victim of right-wing violence was given to a foundation, which has focused its work on promoting civic rights and the development of a democratic culture since 1998. 24 It appeared, eventually, that the perpetrators were two young Arabic men who wanted to protest against Israeli occupation policy in Gaza. 25 In addition to these murders, the NSU also carried out two bomb attacks and 14 bank robberies. 26 See the final report of the federal parliamentary committee (2013) on the deeds of the NSU: pp. 76–81. 27 In German: “auf dem rechten Auge blind sein”. This expression remains controversial, especially among conservative circles and the security authorities. It has first been used by radical left movements before being more widely used after the NSU murders had been revealed. 28 An example of this is the project between a series of non-governmental associations and the representatives of local authorities in the small town of Halbe. In this locality, there is a war cemetery that has become a commemoration place for neo-Nazis. The purpose of the project was to formulate a concept in order to clarify the historical significance of the place and to debunk the myth constructed by extremist groups around the cemetery. For further details, see Morsch, 2009. 29 After Chancellor Angela Merkel pursued a liberal asylum policy in 2014 and 2015, she eventually hardened the course of German migration policy under the pressure of part of the CDU and the CSU. This move was illustrated by the refugee deal between the EU and Turkey, aimed at reducing refugees’ arrivals in Europe.

References Algazy, J. (1989). L’extrême droite en France (1965–1984). Paris: L’Harmattan. Amadeu Antonio Stiftung (ed.) (2014). Völkische Siedler/innen im ländlichen Raum. Berlin: Amadeu Antonio Stiftung. Backes, U. (2018). Banning Political Parties in a Democratic Constitutional State: The Second NPD Ban Proceedings in a Comparative Perspective. Patterns of Prejudice, 53(2), pp. 136–151. Barthes, R. (1957). Mythologies. Paris: Le Seuil. Bleich, E. (2011). The Freedom to be a Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism. Oxford: Oxford University Press. Bleich, E. (2003). Race Politics in Britain and France: Ideas and Policymaking since the 1960s. Cambridge: Cambridge University Press.

The radical right and its opponents  79 Bundesamt für Verfassungsschutz (1997). Verfassungsschutzbericht. Bonn/Berlin: Bundesministerium des Innern. Castelli Gattinara, P. and Bouron, S. (2019). Extreme-right Communication in Italy and France: Political Culture and Media Practice in CasaPound Italia and Les Identitaires. Information, Communication & Society, published online. URL: www.tandfonline.com/doi/abs/ 10.1080/1369118X.2019.1631370?journalCode=rics20, last accessed on 29.09.2019. Chebel d’Appollonia, A. (1996). L’extrême droite en France: de Maurras à Le Pen. Bruxelles: Editions Complexe. CNCDH (Commission Nationale Consultative des Droits de l’Homme) (1999). La lutte contre le racisme et la xénophobie, discriminations, et droits de l’homme. Paris: La Documentation Française. Codaccioni, V. (2015). Justice d’Exception. Paris: CNRS Editions. Contamin, J.G. and Weil, T. (1995). Logique socio-politique de l’implantation des collectifs Scalp et Ras l’Front. In: N. Mayer (ed.), Cahier du Cevipof – Les collectifs antiFront National, vol. 13. Paris: FNSP- CNRS, pp. 13–69. Decker, F. (2015). AfD, Pegida und die Verschiebung der Parteipolitischen Mitte. Politik und Zeitgeschichte, 40, pp. 27–32. Dézé, A. (2012). Le Front National: à la conquête du pouvoir? Paris: Armand Colin. Dudek, P. and Jaschke, H.G. (1984). Entstehung und Entwicklung des Rechtsextremismus in der Bundesrepublik. Opladen: Westdeutscher Verlag. Farin, K. and Seidel-Pielen, E. (2002). Skinheads. Munich: Beck CH. Fischer, T. and Lorenz, M. (2009). Lexikon der ‘Vergangenheitsbewältigung’ in Deutschland. Bielefeld: Transcript Verlag. Funke, H. (1998). Demokratieausbau Ost. Blätter für deutsche und internationale Politik, 43(6), pp. 650–654. Geelhaar, S., Marz, U. and Prenzel, T. (2012). Rostock-Lichtenhagen als konformistische Revolte. In: T. Prenzel (ed.), 20 Jahre Rostock-Lichtenhagen. Rostock: Universität Rostock. Gerlach, J. (2012). Die Vereinsverbotpraxis der streitbaren Demokratie, verbieten oder nicht-verbieten? Baden-Baden: Nomos-Verlag. Glet, A. (2009). The German Hate Crime Concept. An Account of the Classification and Registration of Bias- motivated Offences and the Implementation of the Hate-crime-model into Germany’s Law Enforcement System. Internet Journal of Criminology, pp. 1–20. Gravier, M. (2008). Good-Bye Honecker! Identité et loyauté dans les administrations estallemandes. Paris: Presses de Sciences Po. Haegel, F. (2011). Did Sarkozy Radicalize the French Right? Ideological Changes and Political Labelling. French Politics, Culture and Society, 29(2), pp. 62–77. Heidenreich, G. and Wetzel, J. (1989). Die organisierte Verwirrung. Nationale und internationale Verbindungen im rechtsextremistischen Spektrum. In: W. Benz (ed.), Rechtsextremismus in der Bundesrepublik. Frankfurt/Main: Fischer, pp. 151–168. Heinrich Böll Stiftung (2012). Braune Ökologen, Hintergründe und Strukturen am Beispiel Mecklenburg- Vorpommern. Berlin: Heinrich Böll Stiftung. Hentges, G., Kökgiran, G. and Nottbohm, K. (2014). Die Identitäre Bewegung Deutschland: Bewegung oder virtuelles Phänomen? Forschungsjournal Soziale Bewegungen, 3, pp. 1–26. Igounet, V. (2000). Histoire du négationnisme en France. Paris: Seuil. Jaschke, H.G. (2001). Rechtsextremismus und Fremdenfeindlichkeit: Begriffe, Positionen, Praktikfelder. Wiesbaden: Springer VS. Jaschke, H.G. (1993). Die “Republikaner”: Profile einer Rechtsaussenpartei. Bonn: Verlag J.H.W. Dietz Nachf.

80  The radical right and its opponents Jennerjahn, M. (2015). Sachsen als Entstehungsort der völkisch-rassistischen Bewegung PEGIDA. In: S. Braun, A. Geisler and M. Gerster (eds.), Strategien der extremen Rechten. Hintergründe – Analysen – Antworten. Wiesbaden: Springer VS, pp. 533–558. Jobard, F. (2017). The French Humorist Dieudonné: Between Anti-racism, Antisemitism, and Holocaust Denial. In: J. Eder, P. Gassert and A. Steinweis (eds.), Holocaust Memory in a Globalizing World. Göttingen: Wallstein, pp. 95–110. Juhem, P. (2001). Entreprendre en politique: de l’extrême-gauche au PS: la professionnalisation politique des fondateurs de SOS Racisme. Revue Française de Science Politique, 51(2), pp. 131–153. Kailitz, S. (2004). Politischer Extremismus in der Bundesrepublik. Eine Einführung. Wiesbaden: VS Verlag für Sozialwissenschaften. Kauffer, R. (2002). OAS. Histoire de la Guerre Franco-Française. Paris: Seuil. Kitschelt, H. and Mc Gann, A. (1995). The Radical Right in Western Europe. Ann Arbor: University of Michigan Press. Kleffner, H. and Holzberger, M. (2004). War da was? Reform der polizeilichen Erfassung rechter Straftaten. Bürgerrechte & Polizei/CILIP, 77, pp. 56–64. Kleger, H. (2006). Toleranz und Tolerantes Brandenburg. Münster: LIT Verlag. Kopke, C., Virchow, F. and Botsch, G. (2014). Mit Recht gegen rechts? Erfahrungen mit Verbotsverfügungen gegen extrem rechte Vereinigungen in der Bundesrepublik Deutschland”. In: M. Löw (ed.), Vielfalt und Zusammenhalt: Verhandlungen des 36. Kongresses der Deutschen Gesellschaft für Soziologie. Frankfurt am Main: Campus, pp. 1240–1252. Laumond, B. (2015). Police et surveillance de l’extrême-droite en Allemagne. Paris: L’Harmattan. Laurens, S. (2014). Le club de l’horloge et la haute administration: promouvoir l’hostilité à l’immigration dans l’entre-soi mondain. Agone, 54, pp. 73–85. Laurens, S. (2009). Une politisation feutrée. Les hauts fonctionnaires et l’immigration en France (1962–1981). Paris: Belin. Lebourg, N. (2015). Le Front National et la Galaxie des Extrêmes Droites Radicales. In: S. Crépon, A. Dézé and N. Mayer (eds.), Les faux-semblants du Front National. Paris: Presses de Sciences Po, pp. 121–139. Lebourg, N., Preda, J. and Beauregard, J. (2014). Aux racines du FN. L’histoire du mouvement Ordre Nouveau. Paris: Fondation Jean Jaurès. Mayer, N. (1995). Cahiers du Cevipof – Les collectifs anti-Front National, vol. 13. Paris: FNSP-CNRS, pp. 2–181. Mayer, N., Tiberj, G. and Michelat, V. (2012). Racisme et xénophobie en hausse: retournement historique ou effet de contexte. La lutte contre le racisme et la xénophobie. Paris: La Documentation Française, pp. 35–49. Minkenberg, M. (1998a). Die Erneuerung der radikalen Rechten in westlichen Demokratien: USA, Frankreich, Deutschland im Vergleich. In: W. Gessenharter and H. Fröchling (eds.), Rechtsextremismus und Neue Rechte in Deutschland. Opladen: Leske+Budrich, pp. 253–279. Minkenberg, M. (1998b). Die neue Radikale Rechte im Vergleich: USA, Frankreich, Deutschland. Wiesbaden: Westdeutscher Verlag. Mondon, A. (2014). The Front National in the Twenty First Century: From Pariah to Republican Democratic Contender? Modern and Contemporary France, 22(3), pp. 301–320. Morsch, G. (2009). Mittel- und langfristige Perspektiven für den Waldfriedhof Halbe. Berlin: Metropol Verlag. Otto, H.U. and Merten, R. (eds.) (1993). Rechtsradikale Gewalt im vereinigten Deutschland. Bonn: Bundeszentrale für politische Bildung.

The radical right and its opponents  81 Perrineau, P. (1993). Le Front National 1972–1992. In: M. Winock (ed.), Histoire de l’extrême droite en France. Paris: Seuil. Peucker, M. (2006). The Hate Crime Concept in Germany and How to Improve the Knowledge on the Extent of Hate Crimes. Paper Prepared for the OSCE Tolerance Implementation Meeting on Addressing the Hate Crime Data Deficit. Prenzel, T. (ed.) (2012). 20 Jahre Rostock-Lichtenhagen. Rostock: Universität Rostock. Renner, V. (2008). Bedingung ‘rechter’ Gewalt in Deutschland. Wiesbaden: Drewipunkt. Rigoll, D. (2013). Staatsschutz in Westdeutschland. Von der Entnazifizierung bis zum Extremistenabwehr. Göttingen: Wallstein. Röpke, A. and Speit, A. (eds.) (2013). Blut und Ehre: Geschichte und Gegenwart rechter Gewalt in Deutschland. Bonn: Bundeszentrale für Politische Bildung. Roth, R., Lynen von Berg, H. and Benack, A. (2003). Programme und Maßnahme gegen Rechtsextremismus und Fremdenfeindlichkeit  – Fragen und Anmerkungen zu ihren Wissenschaftlichen Begleitung. In: H. Lynen von Berg and R. Roth (eds.), Maßnahmen und Programme gegen Rechtsextremismus Wissenschaftlich Begleitet. Opladen: Leske+Budrich, pp. 9–24. Rucht, D. (ed.) (2015). Protestforschung am Limit: eine soziologische Annäherung an Pegida. Berlin: WZB. Schain, M. (1987). The National Front and the Construction of Political Legitimacy. West European Politics, 10(2), pp. 229–252. Schmitt-Beck, R. (2014). Euro-Kritik, Wirtschaftspessimismus und Einwanderungsskepsis: Hintergründe des Beinah-Wahlerfolges der Alternative für Deutschland (AfD) bei der Bundestagswahl 2013. Zeitschrift für Parlamentsfragen, 45(1), pp. 94–112. SINUS-Studie (1981). Wir sollten wieder einen Führer haben. Hamburg: Rowohlt. Soulet, M.H. (2004). Agir en société: engagement et mobilisation aujourd’hui. Fribourg: Academic Press Fribourg. Stöss, R. (2010). Rechtsextremismus im Wandel. Berlin: Friedrich Ebert Stiftung. Virchow, F. (2011). Die Demonstrationspolitik der extreme Rechten im Bundesgebiet und im Land Brandenburg. In: C. Kopke (ed.), Grenzen der Toleranz – Das Brandenburger Modell zur Bekämpfung des Rechtsextremismus. Potsdam: Universitätsverlag Potsdam, pp. 83–102. Wagner, B. (2002). Kulturelle Subversion von rechts in Ost- und Westdeutschland: zu rechtsextremen Entwicklungen und Strategien. In: B. Wagner and T. Grumke (eds.), Handbuch Rechtsextremismus. Wiesbaden: Springer VS, pp. 13–28. Wagner, B. (1995). Jugend Gewalt Szenen. Berlin: dip. Wolf, J. (2006). Die NPD-Verbotsdebatte. Bundeszentrale für politische Bildung. URL: http://www.bpb.de/politik/extremismus/rechtsextremismus/41872/debatte-ums-npdverbot, last accessed on 13.01.2020.

3 Towards the identification of national frames of responses to right-wing radicalism

Before proceeding to the exploration of how individual actors perceive and respond to the radical right (Chapter 4), I will begin by determining how responses to the radical right have been framed by political actors in France and Germany. Policy frames are “a set of cognitive and moral maps that orient an actor within a policy sphere” (Bleich, 2003, p. 33). Previous chapters present the various responses to the radical right, and I will now seek to identify a policy frame in the two countries under investigation based on their legislation. How have historical legacies influenced policy-making against the radical right? Is there a national framework that affects how state actors have addressed right-wing radicalism and, if so, is the framing process influenced by the respective characteristics of the radical right in France and Germany? I  will first expand on the German case and highlight how a state doctrine regarding the regulation of political radicalism has been constructed, in contrast to the French case, which features different bodies of legislation that have been used to address the radical right.

Political construction of a legal doctrine in Germany In this section, I  argue that the drafters of the German Constitution have formulated provisions that were mainly inspired by the need to protect democracy from anti-democratic attacks. Therefore, the measures against radicalism granted by the constitution mainly have the purpose of protecting the democratic state. I  then contend that political actors have constructed a state doctrine based on constitutional provisions. However, the German framework has progressively targeted movements which no longer constitute a serious threat to democracy (Bligh, 2013; Bourne, 2015). That being said, one must ask how state actors have adapted their traditional legal framework to recent developments? Construction of an administrative architecture responding to anti-democratic threats Constitutional provisions establishing a militant democracy The German post-war period was characterised by the necessity of building a new legal system that would come to terms with the country’s National Socialist

National responses to right-wing radicalism  83 heritage. The idea that the Weimar Republic had been unable to defend itself against undemocratic movements, particularly the National Socialist German Workers’ Party (NSDAP), is central to explaining what happened next (Canu, 1997; Minkenberg, 2006; Michael and Minkenberg, 2007). In the wake of this period, the concept of militant democracy was taken over by the fathers of the German Constitution. The first constitutions were state constitutions of German Länder, under American domination, which received legislative, executive, and judicial powers in 1945. These Länder were highly encouraged by the Allies to quickly establish a legislative framework. To this end, the example of the Hessian Constitution largely influenced the discussions around the Federal Constitution (Bachmann, 1997) as it was in effect as early as 1946. When the reconstruction of the legal system began in 1945, actors who took part in this process were carefully selected.1 Walter Jellinek, a professor of constitutional law who had been excluded from the civil service by the National Socialist power and was later reintegrated by the allies,2 made large contributions to the writing of the Hessian Constitution. Jellinek had been struck by the necessity of providing instruments to combat anti-democratic threats. He therefore laid the foundations for an innovative legal system  – that is, a militant democracy with provisions such as the respect of fundamental rights and the obligation to defend the constitution. In the post-war period, the reception of Loewenstein’s theories in Germany was indeed significant when the German jurist came back from his American exile for a short time. As first legal advisor to the Allied Control Council in 1945, he actively took part in the denazification policy, collaborating with the legal staff, which included universities (Lang, 2007). Considering that the allies had an overriding role in the reconstruction of the German legal system, the influence that Loewenstein had on the American side should not be neglected. In addition, he took part in drafting the Bavarian Constitution, and his reintegration into the German university system granted him credence in academic discussions despite an appointment policy that led to the integration of former fervent Nazis in the teaching staff in German universities. Yet, Loewenstein’s influence on the new constitution was widely recognised, and he facilitated the transfer of his theory between the USA, where he developed his theses, and Europe, where democracies had to be rebuilt. Concerning the content of the Federal Constitution (also called the Grundgesetz, or Basic Law) and its militant character, I will discuss the main provisions protecting democracy. The Constitution was written by a parliamentary council composed of 65 members from across the political spectrum (including the Communists) who were elected by the 11 West German parliaments. The aim set by the Six-Power Conference (consisting of the USA, Great Britain, France, and the Benelux states) that took place in London between February and June 1948 was the draft of a constitution that would establish a free and democratic form of government. To date, the principles of militant democracy had been only partially implemented during the interwar period in some European states such as Czechoslovakia (Capoccia, 2005). All of these measures, nevertheless, were “ad hoc, and no constitution contained anything resembling a real doctrine of democratic self-defence” (Müller, 2012, p. 1257). In the post-war era, the constitution became one of the main instruments of the new militant democracy. In the early 1950s, the

84  National responses to right-wing radicalism German Federal Constitutional Court stated that the constitution entailed a “set of values that had to be defended against its declared enemies” (Ibid., p. 1253), and Basic Law was largely inspired by the Hessian Constitution. In sum, the construction of a new legal order (on both the Länder and federal levels) was fairly homogenous and was built on common theoretical grounds that find roots in the concept of militant democracy. The main constitutional provisions that can be categorised as militant under the German Basic Law can be summarised as follows. The drafters of the Constitution first strengthened the Parliament and the Chancellor in order to reinforce the stability of the institutional system in the event that anti-democratic movements were to penetrate state institutions. Second, the Grundgesetz anchors fundamental rights such as human dignity (Art. 1), freedom of expression (Art. 5), and the freedom of association (Art. 9). As a matter of fact, Articles 1 to 20 index all fundamental rights that are constitutionalised and make Germany (theoretically at least) a liberal democracy. However, the drafters of the Constitution have added some elements that are closer to the theory of militant democracy. As illustrated by Table  3.1, article 79§3 introduces the Table 3.1  Constitutional provisions protecting the democratic order Article

Content

Art. 5§3

Freedom of teaching, allegiance to the Constitution

Art. 9§2

Association ban

Art. 10§2

Restriction of the privacy of correspondence, posts, and telecommunications (recourse to Courts of Justice possible)

Art. 11§2

Restriction of the freedom of movement

Art. 18

Forfeiture of basic rights

Art. 20§4

Right of resistance (against any person seeking to abolish the constitutional order)

Art. 21§2

Political party ban

Art. 73§1 n°10

Cooperation between the Federation and the Länder concerning the protection of the free democratic basic order

Art. 79§3

Restriction on amending Art. 1 to 20 (eternity clause)

Art. 87§1

Establishment of a federal law for the compilation of data for purposes of protection for the Constitution

Art. 87a§4

Protection of the free democratic basic order by Armed Forces if the police forces and the Federal Border Police prove inadequate

Art. 91§1

Option to call upon police forces from other Länder/other administrative authorities if the free democratic basic order is endangered

Art. 98§2

Dismissal of federal judges if they infringe upon the principles of the constitutional order (decision of the Federal Constitutional Court)

Art. 98§5

Dismissal of federal judges if they infringe upon the principles of the constitutional order (decision of the Federal Constitutional Court)

Source: Canu, 1997, p. 193.

National responses to right-wing radicalism  85 so-called “eternity clause”, a constitutional entrenchment clause which states “that the federal and democratic nature of the German state cannot be changed at all, and neither can the protection of human dignity and human rights” (Müller, 2012, p. 1258). The eternity clause makes it impossible to waive the principles laid down in Articles 1 to 20 (Section I: Basic Rights) or to affect the division of the Federation into Länder. In addition, Article 21 of the Constitution also rules on the existence of political parties: this article introduces the Parteienprivileg (privilege of parties), which protects political parties, considered essential for a good functioning parliamentary democracy as long as they do not undermine the free democratic basic order. The privilege given to political parties is their freedom and independence; the parties’ activities should be influenced as little as possible by the state, and they may be proscribed only by a high court decision. Besides the protection of rights granted by the Basic Law, the foundations of militant democracy lie in the restrictions that are imposed in certain cases. The so-called free democratic basic order (or Freiheitliche Demokratische Grundordnung, FDGO) is a milestone of the Constitution. It can be defined as an “order that excludes any form of tyranny or arbitrariness and represents a governmental system under the rule of law, based upon self-determination of the people as expressed by the will of the existing majority and upon freedom and equality. The fundamental principles of this order include at least: respect for human rights which are given a concrete form in the Basic Law, in particular the right of a person to life and free development; separation of powers; responsibility of government; lawfulness of administration; independence of the judiciary; the multi-party principle; and equality of opportunities for all parties3” (Federal Constitutional Court, 1952). However, the FDGO legitimises the limitation of fundamental rights. One illustration of this is the possibility to proscribe associations and parties (Art. 9 and Art. 21) that would endanger the FDGO. Article 18 provides the possibility of restricting a set of fundamental rights that are constitutionally protected if a person, or a group of persons, abuses the fundamental rights in order to combat the democratic basic order. Finally, Art. 21§2 provides that “parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional and the Federal Constitutional Court shall rule on the question of unconstitutionality”. Despite their privilege, political parties can be proscribed if they aim to undermine the free democratic basic order. The end decision comes down to constitutional judges, unlike associations, which can be proscribed by the Ministers of the Interior. In the theoretical debates around the theory of militant democracy, the necessity of finding a balance between freedom and repression has been a central issue. In the German case, the restriction of fundamental rights can only occur if the Federal Constitutional Court gives its approval. Judges – especially constitutional judges  – are given an important role in the balance between the protection of fundamental rights and the protection of the democratic basic order (Lautmann, 1972). The rule of law, and consequently judges, has long been seen as preventing the state from shifting towards an authoritarian democracy (Loewenstein, 1937)

86  National responses to right-wing radicalism or an illiberal democracy. Because judges have been given such an important role, their role in the enforcement of state responses to the radical right will be thoroughly explored in Chapter 6. Construction of a militant administration As mentioned before, the organisation of German security authorities was supervised by the Allies. In April 1949, the German Parliamentary Council received the so-called police letter (Polizeibrief) from the military governors. It outlined the competences that should be devolved to the police forces. The central constraint imposed to German authorities was the separation of the intelligence service from the police, the so-called separation rule (Trennungsgebot), whereas the intelligence service monitors the activities of political movements willing to destabilise the new democratic order, only the police are entitled to prosecute relevant persons. The nation’s traumatic experience with the Nazi Gestapo, which had at its disposal intelligence instruments and police powers, has led to heavy mistrust toward the introduction of a political police. In an attempt to avoid the introduction of an institution that previously contributed to build and consolidate a totalitarian regime in a significant way, the Allies made sure to separate the police from the intelligence service. The German Constitution therefore established two institutions: a domestic intelligence service, also called the Office for the Protection of the Constitution (Verfassungsschutz), and the police. The Office for the Protection of the Constitution,4 whose existence has been secured by Article 73 §1 n°10 of the Basic Law, has worked according to the opportunity principle. In contrast, the police have been bound by the obligation to act according to the principle of legality – (i.e. they cannot open a case if there is no confirmed suspicion). The Office for the Protection of the Constitution may monitor groups or individuals without the existence of suspicion but is obliged to transfer its information to prosecution authorities if groups or persons are actively striving against the constitution. Because the Office for the Protection of the Constitution is thought of as a public body serving democracy and the duty of Aufklärung (providing information on extremist movements), each Office for the Protection of the Constitution is required to publish a yearly public report. Yearly reports outline the main extremist movements active in Germany. These reports, available and discussed in the parliaments once a year, deliver an assessment of the political landscape by officially designating extremist movements. At the request of the Minister of the Interior, the Offices for the Protection of the Constitution thus decide on the (il)legitimacy of German political movements (Kohlstruck, 2013). The decision to monitor political parties, especially those with parliamentary representation, led to political controversies because it seriously influences political competition. For instance, the radical left party “Die Linke”, which has had a fraction in the German Federal Parliament since its creation in 2007, is partly monitored (its predecessor, the PDS, was also monitored and had a parliamentary representation as well). In sum, the official state’s perception of political radicalism in Germany has been widely publicised by the

National responses to right-wing radicalism  87 intelligence service, which has contributed to the stigmatisation of certain political groups, including radical right-wing entities. The 1950 law ruling the domestic intelligence service defined the objectives of the Office for the Protection of the Constitution but was vague about the use of intelligence means (Jaschke, 1991). Against the backdrop of the student movement in 1968, parliamentarians adopted emergency legislation and modified several articles of the Basic Law, notably amending Article 10, which previously imposed the inviolability of the privacy of correspondence, posts, and telecommunications and which made restrictions possible only by law. On paper, the new amendment allowed the intelligence service to monitor persons suspected of having anti-democratic activities without a court order; in reality, this reform merely legalised a practice that was already widely used before 1968 and marked the reconciliation of the new legal arsenal with the German tradition of state security (Schwagerl, 1985). However, in the same year, the G-10 Act restricted fundamental rights with counter-power mechanisms, introducing a permanent committee in charge of deciding on the legality and effectiveness of decisions made by security authorities which restrict the privacy of correspondence, posts, and telecommunications. Put differently, G-10 Committees regulated the state repression against radical activists. The 1968 constitutional change was in line with the 1949 approach of militant democracy, mixing repressive measures with procedural balances in order to protect the democratic order.5 This orientation was strengthened with the 1978 act establishing a permanent federal Parliamentary Committee (Parlamentarisches Kontrollgremium) in charge of controlling the activities of the Federal Office for the Protection of the Constitution. Regarding the police, states were given a State Protection Office (Staatsschutz) in charge of investigating cases involving persons who destabilise the free democratic basic order. Unlike the Offices for the Protection of the Constitution, these departments have police powers at their disposal. All in all, the German legal framework has introduced an original institutional system, relying on 34 separate institutions (17 State Protection Offices, 17 Offices for the Protection of the Constitution) in charge of monitoring and repressing persons threatening the democratic order. Thanks to this elaborate system, the enforcement of the concept of militant democracy after World War II has had long-lasting effects on the structure of the German security administration. However, militant democracy has not only exerted an influence on repressive institutions but also on the development of preventive institutions. In addition to repressive measures, the militant character of German democracy also relies on a few educative measures. After World War II, the Western Allies promoted structures that would foster democratic values and civic education. Accordingly, they set up re-education programmes in 1945 to encourage German citizens to learn and practice democracy (Hafeneger, 2015). Such education programmes continued after the Allies left, and in 1952 a central institution, the Federal Homeland Service (Bundeszentrale für Heimatdienst, BfH) emerged. The BfH built on the German tradition of state education developed under the Weimar Republic with the so-called Reichszentrale für Heimatsdienst, which was initially expected to strengthen the loyalty of the population to the government and which

88  National responses to right-wing radicalism eventually became a means to familiarise German citizens with the principles of democracy (Musterle, 2012). After World War II, the aim of the BfH was to spread democratic and European ideals in Germany. However, as time passed, and the Cold War became more acute, defence against Communism and the expression of critical distance towards East Germany took on increasing weight in the activities of the BfH. In the 1950s, the BfH was progressively instrumentalised by the political establishment. Hentges (2013) emphasises the role played by the Ost-Kollegs, an institute within the BfH promoting the study of Soviet communism and EastWest relations (Scott-Smith, 2012), created in 1957, which gathered a wide range of academics who had had an intellectual and a political confrontation with Communism and who, interestingly, had previously distinguished themselves under the National Socialist dictatorship. Despite its political instrumentalisation, the BfH, which later became the West German Federal Agency for Civic Education, also accomplished its mission to deliver free information about democracy and political matters to the population. In this regard, militant democracy was not merely a set of repressive tools defending an institutional order, but it also tackled the symptoms of radical movements with civic education before it became the object of numerous controversies due to the political course it took during the 1950s. The German constitutional foundations eventually led to the establishment by state actors of a militant democracy. The main institutional consequence of such constitutional dispositions is a system relying on checks and balances in which parliaments have had a significant oversight role upon security authorities. However, the militant model of German democracy has so far remained very theoretical and static. Therefore, it is necessary to explore the role played by state and political actors in this institutional system. It has already been mentioned in this section that state actors have at times made their own interpretation of measures intended to protect democracy. In the next section, I will examine how state authorities have defined political radicalism. In doing so, I aim to identify how public actors have used the legal instruments at their disposal in order to construct a state doctrine that defines political radicalism. Development of an anti-extremist doctrine Ever since militant democracy became anchored in the German legal system, state actors have developed their own vision of political radicalism which has further defined its boundaries. For this reason, I will now discuss the role of state actors in the public construction of political radicalism in Germany. As shown in Chapters 1 and 2, state actors intervening in the regulation of the radical right are diverse. Here, administrative and political actors will be examined. Political actors developed their own conception of radicalism directly after the Basic Law was passed. I mentioned in the previous chapter that the Adenauer Decree in 1950 evicted Neo-Nazis but mostly Communists from the German administration. In the meantime, the decree allowed the reintegration of former Nazis who had been expelled from the civil service thanks to the Allies and denazification policy shortly after the end of the war. Essentially, the Christian Democratic

National responses to right-wing radicalism  89 government (in coalition with the Liberal Party) considered the Communists a much greater danger (Jaschke, 1991; Rigoll, 2013) than the radical right and consequently used legal instruments against them; as stated in the previous chapter, the West German government mostly proscribed associations that were close to the Communist Party (Gerlach, 2012). Two party-bans occurred and repressed different political families, first in 1952 against the right-wing extremist “Sozialistische Reichspartei” (SRP) and then in 1956 against the German Communist Party (KPD). However, the repression of right-wing and left-wing radicalism has not been implemented with the same forcefulness by the federal government, domestic intelligence service, police, prosecution departments, and tribunals, which all have taken part in the general repression against Communists. This asymmetrical repression was particularly acute during the Adenauer era; the early 1960s marked a détente in the prosecution of radical movements (Jaschke, 1991). The aftermath of the 1968 social movement helped refine the official definition of political enemies. In 1972, a decree further widened the gap between democratic and radical movements. That year, the state Minister-Presidents and the SPD Federal Chancellor agreed that “individuals whose activities were deemed hostile to the Constitution or who were members of parties or associations that were deemed hostile to the Constitution would be excluded from the German civil service” (Capoccia, 2013, p. 212). The decision was made at a time when the Social Democratic government defended the position that the “Deutsche Kommunistische Partei” (DKP, successor party of the banned KDP) and the NPD were evidently pursuing anti-constitutional objectives, which meant that these parties could only restrictively ask for the rights and freedoms guaranteed by the Constitution (Rigoll, 2013). Meanwhile, the Christian Democrats brought the issue of loyalty to the Constitution onto the political agenda but were actually divided on this matter. In some states such as North-Rhine Westphalia, applications of DKP members for the civil service were rejected. Bavaria, on the other hand, stuck to the more liberal doctrine of party privilege according to which members from a legal party could not be expelled from the civil service. In light of these contradictory views, a political debate arose on the possibility of excluding persons with a radical background from the civil service. There was a general consensus that radical activists, with whom no mainstream party was in contact, should be removed from public service, which led to the Radikalenerlass, or Radicals Decree, made on 28th January 1972. The Radicals Decree was a compromise that can be read in two ways. Like the Adenauer decree, it can be understood as an invitation to purge the civil service. But the Radicals Decree gives the additional possibility for rejected persons to appeal the administrative decision to the justice department. In practice, the domestic intelligence service was in charge of investigating the political behaviour of applicants for the civil service. The employment bans put in place by this decree generated thousands of regular inquiries and therefore a significant amount of data collection. The search for radical activists in the civil service became a new policy field (Rigoll, 2013). Repression mostly affected the official political enemy, the Communists, a trend strengthened by the growing importance of the Red Army Fraction attacks; therefore, fewer radical right-wing

90  National responses to right-wing radicalism civil servants were affected by the measures than were persons with a radical leftwing background. Although the Federal Constitutional Court authorised the practice of the employment ban (decision of 22nd May 1975), the negative reaction that the ban garnered among the press and academia both in Germany and abroad led the German authorities to progressively withdraw the employment ban. Nevertheless, the long-lasting focus of security authorities on the radical left led to neglecting the role of the radical right-wing ideology in public service. The issue has arisen again in the last decade and has been politicised, in particular within the police and military forces, where hundreds of civil servants with a radical rightwing ideology have been internally identified.6 In sum, the 1970s and the Radicals Decree marked the emergence of a consensual vision of defending democracy among the German-established political parties, which was largely validated by the Federal Constitutional Court. In the political context of the 1970s, the bid to defend democracy allowed the repression of deviant political behaviour. The Federal Office for the Protection of the Constitution, which was in charge of inquiring about the biography of applicants for the civil service, played a decisive role in making the term Extremismus (extremism) a central normative concept to understanding political radicalism in Germany. From 1974 onwards, the yearly reports of the domestic intelligence service have used the word to replace Radikalismus, a change officially recognised and justified by Federal Minister of the Interior: The concept of ‘extremism’ takes into account the fact that political activities or organisations are anti-constitutional not because they pursue aims that could be defined in common terms as radical. . . . They are extreme and therefore anti-constitutional in the legal sense because they are opposed to the fundamental elements of the democratic and constitutional state structures. (Report of the Federal Office for the Protection of the Constitution, 1975) According to this new semantics, German institutions have repressed extremists who are actively opposed to the constitutional order and not radicals who are still part of the democratic scope. The term Extremismus became commonplace in administrative literature: reports from the domestic intelligence service, the Constitutional Court, the West German Federal Agency for Civic Education, and political foundations like the Christian Democratic Konrad Adenauer Foundation all made use of this term (Oppenhäuser, 2011), which indicates a unanimous acceptance of this conception of political radicalism among political actors and the German administration. However, the sustainability of this politico-administrative terminology would not have been so spectacular without the implication of German academia. The concept of extremism was indeed thoroughly discussed and conceptualised in normative terms by scholars such as Uwe Backes and Eckhard Jesse from the 1980s onwards. In Germany, extremism is now considered an ideology composed of political movements and parties with different programmes, organisations, and political strategies. The extremist ideology is defined by its opposition to the democratic constitutional state. Thus, the political spectrum is necessarily

National responses to right-wing radicalism  91 divided between a democratic core and extremes at the outer edge. By making the concept of extremism relevant to political science, these scholars developed a new field, extremism research, and helped the notion of extremism to reach a larger audience, as political scientists began using this concept to study democratic politics. Extremism research contributed to the consolidation of a political framing very much centred on the distinction between the democratic middle and extremes whose reverberations can still be felt today. In fact, during my field trips in Germany, most political actors framed responses against political radicalism as a set of measures targeting right-wing and left-wing extremism.7 Yet, some German scholars criticised this approach.8 For instance, Richard Stöss (2008), who disapproves of the classification of political parties according to the criteria of extremism, argues that this approach is likely to put parties from very different political families in one basket and that such a classification therefore limits the possible scientific knowledge gain. Instead, he defends that parties should be classified with respect to their size, power, and internal structures, ideological programme, and strategic purposes, which is congruent with the practice of scholars of party politics. A further criticism of the extremism research is the polarisation between the extremes and the democratic middle, which conveys the idea that extremism is a phenomenon that nestles exclusively within the borders of the two extremities of the political chessboard. Numerous studies challenged this thesis and showed that racist and authoritarian attitudes are found among the so-called democratic middle (Jäger and Jäger, 1992; Decker, Kiess and Brähler, 2012). In conclusion, the German legislative framework was thoroughly impacted by the experience of National Socialism. This historical period was the prelude for the establishment of a so-called militant democracy grounded in the Basic Law. Drawing on this legacy, state actors have developed a national narrative from the 1950s onwards: defending democracy was first built on an anti-fascist frame. The tools for defending democracy – repressive tools as well as education programmes  – were then used and developed in order to repress Communism. Jaschke (1991) insightfully argues that the leading idea of defending democracy in the post-war era was slowly replaced by the necessity of repressing radical left-wing movements. A political consensus between all mainstream parties could be found in the 1970s on this matter. In sum, the qualitative objective of the Basic Law, which had been to fight against anti-democratic tendencies, was partly replaced by a quantitative aim mainly restricted to mass surveillance (and whose flagship measure was the employment ban) instead of concentrating on an intellectual and a political struggle. The use of the Extremismus semantics, introduced by the German administration and political actors, and legitimised by scholars, further contributed to solidifying the existence of what can be called an “anti-extremist policy”. Reforming the anti-extremist policy? As mentioned in Chapter 2, reunification and the 1990s marked a turning point in how regulation of political radicalism was perceived in Germany. The national

92  National responses to right-wing radicalism frame defining responses to political radicalism has been deeply impacted by the many changes that have occurred since reunification. The current section seeks to show how traditional anti-extremist policy has evolved in light of the new challenges of this period. Challenging the anti-extremist frame with the enactment of new provisions Measures challenging the anti-extremist frame emerged prior to reunification. In the pre-reunification period, national and international contexts became intertwined and caused the enactment of additional repressive provisions. For instance, the Convention on the Elimination of All Forms of Racial Discrimination was voted by the General Assembly of the United Nations in 1965 and entered into force in Germany in 1969. The anti-Semitic wave that occurred in Germany in the late 1950s (see Chapter 2) contributed to the development of an international convention repressing all forms of discrimination by the United Nations (Fennema, 2000). In Germany, the enforcement of this convention occurred in 1973 with the modification of Article 130 of Criminal Law to punish incitement to racial hatred. Additionally, the 1980s saw the enactment of provisions repressing Holocaust denial. Germany became one of the first countries to repress this offence by law in 1985, in the context of an increasing number of cases involving Holocaust denial. Germany was followed by a wide range of European countries in the late 1980s. This legislative move was largely supported by European institutions such as the Council of Europe, which “called on its members to criminalise denial, gross minimisation, approval, or justification of genocide or crimes against humanity” (Bleich, 2011, p. 50). In 1994, Germany tightened its legislation against Holocaust denial and provided that such an offence could be punished with a prison sentence up to five years (Canu, 1997). These new measures, integrated into the German legislation between 1960 and 1989, were voted in because of international incentives, which suggests that ideas had been circulating between national and international institutions (Dolowitz and Marsh, 1996, 2000). Although some measures fitting the anti-extremist frame, such as the prosecution of Holocaust denial, were enforced by judges (Jaschke, 1994), the introduction of an anti-discrimination framework into judicial practices was not very successful, as will be evidenced next, suggesting that the historical anti-extremist frame was at first rather inflexible at integrating other perspectives. In the 2000s, Germany faced international pressure for its legislation against racism. German legislation did indeed mainly target political radicalism, which explains why part of its legal framework had regularly been qualified as antifascist legislation by international observers (Fennema, 2000). Organisations such as the European Commission against Racism and Intolerance (ECRI) criticised the German legal framework for labelling racist acts as right-wing extremist acts. They argued that racist, xenophobic, and anti-Semitic acts had not emanated exclusively from these rather marginal groups but from German society as a whole (ECRI, 2003). In 2006, Germany responded to pressure from the European

National responses to right-wing radicalism  93 Union by finally enacting a comprehensive General Equal Treatment Act that “forbids discrimination in employment, in housing, and in the exchange of goods and services based on race, ethnic origin, religion, or ideological belief, as well as based on cognate categories like gender, disability, age, and sexual identity” (Bleich, 2011, p. 123). Geddes and Guiraudon (2004, p. 347) argue that German authorities – and French authorities for that matter – perceive anti-racist legislation as synonymous with anti-discrimination legislation, in contrast to the United Kingdom, which considers anti-discrimination legislation as a means to “manage visible migrant minorities”. In sum, German actors perceive the obligation to pass anti-discrimination provisions as an enrichment of the traditional anti-extremist legal framework. This was particularly visible in 2001 when the German Ministers of the Interior decided to reform the production of criminal statistics in order to better register offences and crimes with a right-wing motive. The reform introduced to the traditional categories (left-wing criminality, right-wing criminality, and “crime among foreigners”) a new sub-category: hate crimes. In practice, hate crimes have mostly been considered as right-wing motivated crimes by the criminal police who produce these statistics. For instance, in 2013 the Federal Ministry of the Interior registered 3,248 racist offences, 97 per cent of them being classified as right-wing motivated. This example suggests that German authorities have articulated new anti-racist legislation (in this case, the obligation to register hate crimes) with the historical anti-extremist paradigm (hate crime has basically become a subcategory of right-wing criminality). Adaptation to reunification’s challenges: towards the introduction of preventive measures The early 1990s were characterised by major difficulties containing right-wing violence for state authorities and by widespread right-wing attitudes among the German population. The limits of the traditional (repressive) approach towards political radicalism became visible at this time. Scholars have highlighted the flexibility of radical right-wing movements facing proscription (Minkenberg, 2006). In Chapter  2, I  presented the various critiques made of state authorities for their lack of adequate responses against right-wing violence. Since the late 1990s, public authorities have introduced innovative responses to these critiques. In 2000, incumbent Federal Chancellor Gerhard Schröder called for “an uprising of the decent people”. This episode marked the start of federal programmes consisting of resources for civil society projects promoting democratic values and the prevention of radicalism. It is worth noting that, while, in theory, these programmes have targeted all forms of political radicalism, in practice, funding has mostly been allocated toward fighting and preventing right-wing radicalism. A tenuous collaboration between state actors and civil society has developed in Germany since 2001, resulting in an adaptation of the anti-extremist policy characterised by a state security approach to recent challenges. In Chapter 1, I identified three types of responses to the radical right: political strategies (restricted to party politics), repressive measures, and preventive

94  National responses to right-wing radicalism measures. During the Cold War, the West German Federal Agency for Civic Education played a preventive function. Despite being relatively isolated in this endeavour, the institution was instrumentalised by state actors to focus antiextremist policy on communist groups. Interestingly, the early 2000s marked a renewal of preventive responses to the radical right, both at the state and federal levels, and the frequency of these responses increased in the following decade. In 2000, a range of preventive programmes against right-wing radicalism and racism was launched; over €200,000 were invested at the federal level between 2000 and 2003 (Lynen von Berg and Roth, 2003, p. 9). By comparison, the federal government announced an investment of €115  million for projects promoting democracy in 2019. Federal programmes against right-wing radicalism have involved a wide range of new policy-makers. Until the early 2000s, public policy against political radicalism had mostly involved state actors, and repressive measures had been exclusively implemented by state authorities. The introduction of numerous projects addressing right-wing radicalism has included non-state actors, mostly non-governmental organisations (NGOs), responsible for conceiving and carrying out state-funded projects against right-wing radicalism. The inclusion of new actors in policy-making suggests that the former anti-extremist policy has been modernised and has become a policy against right-wing radicalism. Preventive programmes involve various professions such as scholars, social workers, psychologists, and teachers, and have contributed to the development of new kinds of occupations, such as personal consultants for right-wing extremist activists wishing to quit, and new kinds of organisations, such as NGOs specialised in building projects at the local scale against the spreading of radical right-wing ideas (see Chapter  4). Put differently, the emergence of a stress test, that is, the dramatic growth of offences with a right-wing motive and the increasing discontent about inadequate policy responses, not only put the regulation of the radical right on the political agenda, but also compelled state actors to come up with solutions that significantly changed the modes of regulation of right-wing radicalism. Evaluations have indeed highlighted several positive effects of the introduction of new policy-makers in federal and state programmes promoting democratic values (Roth, Lynen von Berg and Benack, 2003). First, right-wing radicalism has been recognised as a public problem that needs to be specifically addressed. Second, it has been acknowledged that the radical right has not been a deviant behaviour affecting the youth or the most extreme milieus only but an issue affecting society as a whole. However, negative effects of these programmes have been pointed out too. Two shortcomings seem particularly noteworthy. Roth, Lynen von Berg, and Benack (2003) highlight the challenges to articulating and fostering cooperation between state repressive actors and the NGOs in charge of prevention. They also point out the dependent relationship between state authorities and non-governmental structures in charge of conceiving and implementing projects. Further reflection on these matters in light of empirical findings will be provided in Chapter 4. Regarding the content of preventive programmes, they share a common aim, that is, to promote and strengthen democratic culture. However, there is a wide

National responses to right-wing radicalism  95 variety of projects and measures. Table 3.2 presents the various preventive measures that have been formulated by non-state actors in Germany. As depicted in Table 3.2, the implementation of preventive measures involves various NGOs. Whereas youth work, de-radicalisation, and counselling for victims require a strong link with the field, networking initiatives rather focus on Table 3.2  Prevention measures in Germany per type Type of measure

Description of projects

Political education

Federal and local projects providing information to the public. Aims are to promote democratic values, process German history and tackle issues such as anti-Semitism, racism, and xenophobia Publications, exhibitions, local actions, workshops, happenings, and so on

Research

Scientific projects conducted by research centres, research and publications funded by foundations Documentation and archives on right-wing radicalism Publications, conferences, documentary centres, and so on

Counselling for victims

Projects supporting victims of radical right-wing violence and their families. They aim both to empower and to recognise the victims of radical right-wing violence Counselling stations, awareness-raising work involving publications/communications, statistics of victims of radical right-wing violence, workshops

De-radicalisation

Projects following former members of radical right-wing groups wishing to quit these groups (Exit Deutschland) Counselling stations, research on de-radicalisation involving publications, expertise work

Youth work

Actions targeting the youth and promoting democratic values and intercultural exchanges. Youth work also aims to prevent violence and extremism Education projects in schools or youth associations involving sports, (street) arts

Online initiatives

The radical right expands its activities on the internet. This led to the emergence of initiatives tackling radical right-wing influence online Happenings, awareness campaigns, mediation work, online monitoring

Advisory projects

Projects with the so-called Mobile Beratung traveling through Germany/Länder in order to help/empower local actors with the emergence of radical right-wing groups/violence Counselling stations/bus, coaching, training

Networking initiatives

These structures support and/or fund local initiatives and projects Management of the aforementioned activities, coordination of the cooperation with state institutions

Source: Own composition adapted from Federal Agency for Civic Education, 2017.

96  National responses to right-wing radicalism coordination and cooperation between institutions. Drawing on that remark, it is reasonable to suppose that the great variety of NGOs involved in responding to the radical right may hide various positions towards the state policy against rightwing radicalism. Therefore, a series of fruitful questions emerge which will be addressed in Chapters 4 and 5: do all of these actors have the same understanding of right-wing radicalism? How has this new type of cooperation affected the rest of state responses against the radical right? In sum, the regulation of right-wing radicalism in Germany results from a historical, constitutional framework with militant provisions in order to defend democracy; political radicalism (or part of it) is addressed because it threatens the democratic order. Based on this notion, I evidenced that state actors have contributed to the development of a common frame in which the democratic order must be protected against clearly identified extremist threats. Progressively, an antiextremist doctrine, characterised by the enforcement of mostly repressive means against what was then perceived extremist (e.g. the radical left), was constructed by political and administrative actors. In this sense, there is a national frame in Germany that affects how (right-wing) radicalism has been addressed. In fact, what is really at stake is the policy-makers’ process of defining who is extremist. At the beginning of this chapter, I asked whether the framing process of rightwing radicalism was influenced by the organisational characteristics of the radical right. I contend that some structural factors eventually challenged the orientations of an anti-extremist policy frame. Reunification saw increasing right-wing attacks of groups from the subcultural milieu as well as the concomitant mobilisation of civil actors advocating for another type of regulation of right-wing radicalism. This has challenged state actors’ traditional perceptions in two ways. First, the radical right has progressively come to be perceived as a central extremist target after decades of intense repression towards the radical left. Second, the repressive approach has proven inadequate, and state actors have formulated new policy measures oriented towards prevention that fosters cooperation with non-state actors. In the meantime, Germany’s international commitments have forced the authorities to enact anti-racist legislation, and I suggest that this external pressure has also been a factor contributing to the redefinition of the anti-extremist policy with particular attention paid to right-wing radicalism. To summarise, the framing of right-wing radicalism as a policy issue in Germany is not determined by the structures of the radical right. However, the dynamics within the radical right and the salience of this political family have impacted the process of redefining who is perceived as extremist and therefore the target of the anti-extremist policy.

Repression of the radical right in France: an assemblage of various legislative traditions The French legal framework is characterised by a range of measures used to repress the radical right. However, in contrast with the German case, no state doctrine has ever clearly emerged. In this section, I will specify the measures that have enabled French authorities to repress political radicalism, and thus identify

National responses to right-wing radicalism  97 how right-wing radicalism has been legally framed. Starting with constitutional provisions, the French legislative framework has not set the protection of the constitutional order as a fundamental principle. However, the constitution adopted in 1958 contains a few provisions contributing to the protection of the democratic order. In this regard, a few French and German similarities can be highlighted. Three limitations may prevent the amendment of constitutional law. First, according to an entrenchment clause (Art. 89§4), no constitutional amendment can be adopted if the territory of the Republic is under attack. This provision takes into account the lessons learnt from the 1940–1942 period when Philippe Pétain reviewed constitutional law although half of the French territory was occupied by Nazi Germany, which helped turn French democracy into an authoritarian regime (Canu, 1997). Second, the constitutional amendment procedure is derogatory. The constitution may be amended either per referendum or through Parliament; in Parliament, a two-thirds majority is required in order to amend the constitution, which means that constitutional reviews must gather a large majority. Third, and this might be the provision that resembles the German eternal clause the most, according to Article 89§5 the “republican form of government” shall not be questioned. These constitutional provisions establish a basis for the protection of democracy. In fact, these are common throughout Europe, which is especially true for entrenchment clauses (Hein, 2018). Despite the existence of these provisions, the framing of responses to political radicalism in France has not been characterised by its constitutional framework as I will now show. Anti-fascist provisions In French politics, it is an old habit to control political radicalism and, if considered necessary by political actors, to repress it. The repression of anarchist groups in the late 19th century with the so-called villainous laws is one example. Passed in 1893–1894, the most remarkable measure regarding the repression of political radicalism allowed state authorities to convict individuals or newspapers advocating for anarchism. In addition, I underlined in the previous chapter that the radical left had been subjected throughout the 1960s and 1970s to great repression from political authorities with the help of the State Security Court (Cour de sûreté de l’Etat). With regards to the repression of right-wing radicalism, the first legal cornerstone was laid in 1936 in response to the rapid development of fascist leagues in France as provisions were passed allowing the government to proscribe associations. When freedom of association was originally introduced with the law of the contract of association (1st July 1901), only associations created to pursue illicit goals could be banned. In addition, a seminal judgment from the Conseil d’Etat of 1933 recognised the necessity to combine freedom of association and the enforcement of public order (Conseil d’Etat, 1933). To this end, public law judges must evaluate the appropriateness of a proscription in proportion to the threat. However, from 1934 onwards the political context was dominated by violent street confrontations involving right-wing extremist leagues which led parliamentarians to pass new legislation restricting the freedom of assembly. Thanks to a law

98  National responses to right-wing radicalism enacted on 10th January 1936, the government could proscribe groups that would disturb public order. Put differently, armed and paramilitary groups that organised public demonstrations and jeopardised “territorial integrity” or “the republican form of government” could henceforth be proscribed. This measure was extensively used during the 1930s to stop fascist leagues and in 1945 to outlaw a series of right-wing extremist associations that had been created under the Vichy regime. This measure has been broadly used to outlaw other types of associations. Algerian independentist groups were banned during the decolonisation wars, and leftwing associations were also outlawed in the course of the 1960s–70s, when the 1936 law was increasingly used as a police measure and not solely as an instrument helping to protect the integrity of the Republic. Yet, it is worth noting that proscriptions have regularly been appealed. As mentioned in the previous chapter, the French government has sometimes had difficulty in effectively banning associations, mostly on formal grounds. Legally, disbanded associations do not have the right to reform. If they do, the individuals involved may be charged with reformation of a banned organisation, which has been punished with a maximum of five years of imprisonment and a €75,000 fine (Art. 431–13 of the Criminal Law). An obvious difficulty for the police and the justice is proving that the group has actually reformed. Yet, a few reformed groups have been successfully repressed: the conviction of the members of the Identitaires, who were considered a reformation of the proscribed Unité Radicale, the association was fined €20,000 and its president €10,000. In spite of this conviction, the movement still exists, and it was neither banned again nor were its leaders imprisoned. This raises the question of the impact of this measure and the motivations of political actors to make use of it. Earlier in this chapter, I showed that major incidents caused by the radical right have led to the ban on associations. In Chapter 6, I will therefore thoroughly compare the use of association bans in France and Germany. It is interesting to note that the association ban has been the flagship anti-fascist measure in France. Another significant anti-fascist provision (Art. R 645–1) was enacted in the Penal Code in 1964 and reads that persons “carrying or displaying the uniform, the signs, or the emblems that have previously been carried or displayed by declared criminal organisations . . . or by a person convicted of crimes against humanity” may be punished by fines apart from “films, shows, or an exhibition including a historical dimension”. Here again, this provision resembles the German Article 86a that also represses the use of banned organisations. A  third measure used to repress the radical right has been strongly influenced by the French historical legacy concerning Holocaust denial. Erik Bleich (2011) argues that Western European countries have been deeply marked by their fascist history and have enacted legislation repressing Holocaust denial. As stated earlier, post-fascist Germany was the first state to enact provisions repressing Holocaust denial. France followed in 1990 after the desecration of the Carpentras Jewish cemetery and a series of Holocaust denials from right-wing extremist scholars and political leaders (see Chapter  2). France’s criminalisation of Holocaust denial has been enforced by judges who recognise its compatibility with the freedom of expression (Ibid.). If most of the penalties have been restricted to fines, deniers who have already been

National responses to right-wing radicalism  99 sentenced by French criminal justice for similar offences may still be convicted with an imprisonment sentence in some rare cases. In sum, the measures offered by the legal framework for repressing radical right-wing activists contain a few instruments that can be related to the historical legacy of France and more generally of Western European countries that experienced authoritarian regimes during World War II. These measures are scarce but have been continuously used either by political actors (bans) or by judges during prosecution (Holocaust denial, use of signs from banned organisations). The repression of radical groups is justified by both their ideology, considered to promote non-democratic, racist attitudes, and by their propensity to violence. In comparison with the German case, it is remarkable that French actors have largely excluded radical political actors organised in parties, which have traditionally been integrated to party competition (Baudouin, 2000). For instance, the legal existence of the Rassemblement National (formerly Front National, FN) has never been seriously jeopardised, unlike German radical right-wing parties that have regularly been under a ban or surveillance threat. This indicates that the framing of responses to right-wing radicalism in France has relied on the idea that a limited part of the radical right (e.g. those immediately threatening democratic values) should be targeted with policy means, whereas responses to political parties would be countered in the political arena with political strategies. Maintenance of law and order Besides the use of anti-fascist measures against its most extremist fringes, repression of the radical right has also relied on the general legal framework allowing the maintenance of law and order. Legal framework The anti-fascist measures presented earlier have not been sufficient to repress offences and crimes with right-wing motives. As mentioned, the French system, unlike the German system, has not developed a specific legal framework to repress radical political activities. In order to identify the measures commonly employed to repress right-wing offences, the existing legal provisions in the French Penal Code need to be presented (Canu, 1997). First, a set of measures have been used to repress violent acts, to wit, causing grievous bodily harm with intent (Art. 221–1 to 5), unintentional wounding (Art. 221–6), and genocide (Art. 211–1 and 213–1 to 5). Another type of violence concerns offences against property. A  series of offences is listed in the Penal Code: property damage (Art. 322–1 to 5), graffiti (Art. 322–1), desecration of graves (Art. 225–17 to 18), and arson (Art. 322–5). These measures have allowed for the repression of violence, including right-wing violence. One illustration is the conviction of skinheads who threw Brahim Bouarram in the Seine during a demonstration of the FN in 1995 (see Chapter 2). The offender, Mickaël Fréminet, was convicted on the grounds of Article 221. During the trial, the racist motive was largely addressed by the prosecution and the press

100  National responses to right-wing radicalism who sought to frame the crime as a racist one; however, a racist motive was not considered an aggravated circumstance until 20039 and the judicial authorities, applying the Penal Code, all but ignored the racist dimension of the murder. The fact that Fréminet was sentenced to a mandatory eight years in prison, substantially less than the ten to twelve years demanded by the prosecution, was interpreted by non-state organisations as an underestimation of the gravity of the racist crime on the part of the criminal justice system.10 Second, France has enacted a series of provisions repressing terrorist undertakings (derogation clauses of the Penal Code) since 1986. Right-wing terrorism can theoretically be repressed with these provisions. However, it must be noted that few right-wing extremist persons have been convicted for terrorist undertakings. A rare example is the indictment of a neo-Nazi, Kristian Vikernes, by the antiterrorist prosecutor for the planning of a terrorist attack (Art. 421–1 of the Penal Code). However, the charge was not retained, and the right-wing activist was eventually convicted for hate speech. This example leads me to a third type of repressive measure within the Penal Code: hate speech. This measure is based on Article 24 of the 1972 Law against Racism, which “prohibits anyone from publicly inciting another to discriminate against, or to hate or to harm, a person or a group for belonging or not belonging, in fact or in fancy, to an ethnicity, a nation, a race, a religion, a sex, or a sexual orientation, or for having a handicap”. Radical right-wing activists such as Kristian Vikernes have been sentenced to fines and in some rare cases to imprisonment for hate speech. These legal provisions have also been used by the prosecution against prominent radical right-wing personalities such as Jean-Marie Le Pen or Brigitte Bardot (for her Islamophobic statements). However, these provisions are inscribed in the Law on the Freedom of the Press, which is part of the Penal Code but benefits from derogation. The Law on the Freedom of the Press is indeed widely seen as protecting the freedom of expression. A few regulations have been added in order to prevent defamation and incitement to hatred; therefore, the Law on the Freedom of the Press is characterised by a satisfactory balance between the protection of freedom of expression and of individual rights (Bigot, 2017). Put differently, the repression of hate speech is subject to a complex balance between freedom of speech and repression of hate speech by criminal judges. In sum, general provisions of the Penal Code allowing the maintenance of law and order have contributed to the repression of right-wing radicalism: in contrast with the German case, it is notable that this legal framework has not openly targeted radical political activities in particular. Security authorities in charge of maintaining public order In the course of repressing political radicalism, actors of the police have played a significant role. As in Germany, French legislation has established a domestic intelligence service in charge of ensuring security of the national territory. This service is divided into two separate and independent departments. First, the “Direction Générale de la Sécurité Intérieure” (DGSI) is an agency in charge of

National responses to right-wing radicalism  101 monitoring persons and groups that may endanger national security. The DGSI assumes responsibility for protecting the “fundamental interests of the nation” (Art. 1). Regarding political radicalism, the DGSI is in charge of protecting society from radical groups and individuals that might use violence and therefore jeopardise national security. Interestingly, the word “violence” has been explicitly put down in the decree stipulating the organisation of the DGSI. Consequently, the main task of this administrative service is to prevent radical violent acts, which in part refers to acts that might cause a threat to public security. The second intelligence institution is the Renseignement territorial (RT), which is divided into two departments and gathers information at the regional level. First is the Service central du renseignement territorial (SCRT), which gathers local intelligence on social movements for the prefects. This department underwent a profound reorganisation in 2008 under Nicolas Sarkozy’s presidency when the domestic intelligence service was reformed. After the reforms, 80 per cent of the staff was transferred to the newly established agency, the DGSI. Following this reform, the SCRT suffered from a lack of financial means as well as qualified personnel (Assemblée Nationale, 2013). The second department of the RT, which also gathers intelligence on social movements, is the gendarmerie. With the introduction of the “Sous-Direction de l’anticipation opérationnelle” (SDAO) in 2013, the French gendarmerie has sought to increase and maximise the circulation of information between gendarmerie local stations up to the regional and national services. As the SCRT, the intelligence department of the gendarmerie is centrally organised and seeks to mutualise the information collected by police officers in charge of monitoring and analysing social movements expressing themselves in public space. Like its predecessor, the DGSI has remained a very centralised organisation that has in practice monitored both groups and individuals suspected of fomenting terrorist acts. Unlike the German intelligence service, the DGSI has two missions: monitoring individuals and conducting criminal investigations, which is permitted by the agency’s powers of prosecution. Regarding radical right-wing groups, inquiries mostly concern individuals suspected of being members of terrorist organisations. The DGSI is an agency working all over the territory with closed sources of information and thus enjoys a very secretive culture. The RT is in charge of the surveillance of social movements at the “département” level, which potentially includes radical right-wing groups, especially the sub-cultural milieu that is loosely and locally organised. Officially, the agents of the RT are “the eyes and the ears of the prefect” (Assemblée Nationale, 2015, p. 7), which basically means that they are instructed to report the (social, political) events in the département that might be of interest for the state to the prefect. Unlike the DGSI, the RT may not conduct criminal investigations. Yet, they have access to intelligence instruments (phone tapping, use of informants, surveillance of mail and telecommunications, and so on), and the main purpose of RT officers is to participate, along with other police officers, in maintaining law and order at the local scale. In contrast, the DGSI has been an independent agency since 2014 and therefore enjoys relative autonomy from the police.

102  National responses to right-wing radicalism In conclusion, monitoring the radical right is a task that has been shared amongst three departments in France. The RT has quantitatively taken up most of the work concerning the monitoring of political radicalism; the DGSI has taken charge of the most serious cases (Assemblée Nationale, 2013). Since the RT has been mandated to ensure the protection of public order, the task of monitoring radical right-wing movements has been part of a larger strategy aiming to prevent the occurrence of violent acts. Additionally, I  have shown that a large part of the repression of the radical right has relied on general provisions of the Penal Code. In contrast with the German case, ideology does not appear to be a central concern  – neither of the Penal Code, nor of the domestic intelligence service. Rather than protecting the democratic order, the French intelligence service is first and foremost expected to safeguard territorial security (DGSI) and to maintain public order (RT). The main objective is to repress violent acts irrespective of ideological motivation. Hate speech legislation is an interesting exception: it shows that not only physical violence is deemed as criminal but also verbal violence, considered as such because of the radical ideology it spreads. Development of anti-racist legislation In this sub-section I emphasise how French justice has progressively repressed individuals, including radical right-wing activists, on the grounds of racist utterances or actions. Additionally, I  highlight the role played by another category of policy-makers in the enactment and the enforcement of anti-racist legislation in France, non-governmental organisations. I posit that anti-racist discourse was helpful in the repression of radical right-wing activists. It is necessary to explore the process that has led to the enactment of anti-racist legislation. In his 2003 study, Bleich (p. 115) retraces how French non-governmental organisations have impacted the legislative work on formulating the Anti-Racist Act. First, the author underlines that racism was framed “in terms of memory of Nazism, anti-Semitic newspapers and public speeches by far-right spokespersons”. Second, Bleich identifies relevant civil society actors who have organised themselves in the postwar era to respond to racism, especially the human rights association Movement Against Racism, Anti-Semitism and for Peace (MRAP). Albert Lévy, a former MRAP General Secretary, describes “the era until the middle of the 1950s as the period of the aftermath of the war, where the dominant questions were neoNazism, the revival of anti-Semitism and the Cold War” (in Bleich, 2003, p. 119). This suggests that the struggle against racism and the repression of right-wing radicalism likely overlapped after World War  II in France. Put differently, the anti-racist mobilisation of the post-war era derived from the traumatic experience of right-wing extremism and its aftermath. It is important to shed light upon how anti-racist civil mobilisation has evolved and how its achievements have contributed to the repression of right-wing radicalism. Regarding advocacy of an anti-racist law, MRAP remained a central lobbying organisation and advocated for a strong legislative framework that could make the prosecution of both racist acts and hate speech possible. Indeed, the

National responses to right-wing radicalism  103 legal instruments that allowed for the repression of racism until 1972 were limited to the tools provided by the Marchandeau Decree-Law (21st April 1939), which introduced the first provisions against racism in French legislation (Epstein, 2008) shortly before World War II began. This piece of legislation repressed insults stirring up hatred. In the pre-war context, and in continuation with the law permitting the proscription of associations, these regulations were mainly enacted in order to convict individuals guilty of anti-Semitic statements. In such cases, the prosecution entirely relied on the initiative of the public prosecutor. This limitation had been introduced against the will of Jewish associations in order to get approval from the proponents of the freedom of expression in 1939. The Decree-Law was suspended under the Vichy regime and has seldom been enforced since the end of the war. Bleich (2003) explains that, given these limitations, the MRAP increasingly advocated for anti-racist legislation against the backdrop of decolonisation and extra-European immigration. The first proposals for new anti-racist legislation were formulated by the MRAP around the 1950s and built on a specificity of French Criminal Law that allows interest groups to initiate or take a lead in instigating cases that relate to the specific interests of their organisation. In its proposal, the MRAP states its aim is to trigger “a procedural change to the law that would permit antidiscrimination groups to participate as ‘civil parties’ in court cases involving racist crimes” (Ibid., p.  121ff.). However, Bleich recalls that “between 1945 and 1972, courts had systematically excluded antidiscrimination organisations from becoming civil parties in racism cases unless the associations themselves had suffered direct injury”. For MRAP, on the other hand, the main advantage of being a civil party to a criminal case was to be able to instigate criminal cases. Of course, the public prosecutor may refuse to launch an investigation, but the prospect of submitting evidence to the court in order to set a criminal case was considered by anti-racist associations as an opportunity to obtain a pivotal role in the enforcement of new anti-racist policy. In order to get anti-racist legislation passed, the French anti-racist movement lobbied French parliamentarians from the 1950s onwards. In the meantime, as mentioned earlier, the United Nations had adopted the International Convention on the Elimination of All Forms of Racial Discrimination, which was ratified by France (as by Germany) in 1971. This political context, combined with the intensified lobbying work of anti-racist associations between 1971 and 1972, facilitated the passage of the law in 1972. From that moment on, French law allowed civil society groups and regular public prosecutors to bring cases into court. Subsequently, this “has led [in France] to more convictions than in Britain, and to more opportunities for judges to enforce laws limiting racist speech” (Bleich, 2011, p. 29). The early commitment of French anti-racist NGOs in repressing racist crime and hate speech, both of which often emanate from right-wing groups (see Chapter  2), may explain the decisive role of civil initiatives in the 1980s (when the FN started growing) in framing right-wing radicalism as a problem that could be addressed with anti-racist tools. In sum, NGOs played a central role in the development of an anti-racist frame that has been used to repress, amongst others, individuals from radical right-wing movements. As a complement to anti-fascist measures

104  National responses to right-wing radicalism and provisions ensuring law and order, French parliamentarians – with the key support of organised interest groups – have developed a third legal framework used to repress and prosecute radical right-wing individuals and groups based upon anti-racist legislation. However, and this is remarkable, French policy-­ makers have targeted racist offences and not right-wing radicalism per se, which is in great contrast with the German case where the political dimension of radicalism is at the focus of attention. To conclude the French case, it is a challenge to clearly identify a unified legal framework which allows for the repression of the radical right because the issue is not framed as a policy issue. However, I have demonstrated that radical rightwing activists and groups have nonetheless been repressed and highlighted three sets of measures at the disposal of state actors. Interestingly, all three were developed in parallel over the last century, and French political actors never constructed a state doctrine against political radicalism that relies on a comprehensive legal framework such as in Germany. Even if anti-fascist provisions are regularly used to repress specifically political groups, the other legal provisions that have been presented do not openly target the radical right, but rather violence or racism, although they contribute to its repression in practice.

Concluding remarks Meindert Fennema (2000, p.  127) asserts that in Europe “the legal repression of extreme right parties has shifted its ideological foundation from anti-fascism (with the logic of a militant democracy in which fascist propaganda was considered illegitimate because it was directed against democracy) to anti-racism (human equality principle)”. The only exception pointed out is the repression of Holocaust denial, which belongs to the anti-fascist tradition. In this chapter, I nuanced this statement, showing that the German case is still dominated by a strong policy against political radicalism. In contrast, French legislation has been shaped by three different traditions that have made the repression of the radical right possible, anti-racism being only one of them, and measures from these three traditions have been enforced. In this respect, the legal framework gives us precious indications regarding how state actors have framed the radical right in both France and Germany. A central distinction between the two country cases is the identification of a clear policy orientation. In Germany, addressing political radicalism is a policy matter, which has experienced several developments. Framing political radicalism as a policy issue was a result of the German legacy and has not particularly been influenced by the characteristics of the radical right. However, the evolutions of the radical right have helped, amongst other things, reform the orientations of the anti-extremist policy. In France, where it is challenging to identify a comprehensive frame, the underlying rationale has been marked by the belief that political radicalism should not be addressed in policy terms unless the groups are violent or express racist opinions. Therefore, the French legal framework has developed a heterogeneous set of measures focusing on the repression of violence and racism. In fact, political parties and even the concept of right-wing

National responses to right-wing radicalism  105 radicalism (or any notion close to this concept) are absent from the French framing process, which does not clearly name political threats. In this chapter, I  identified different arenas composed of policy-makers who influence the formulation and the enforcement of measures regulating right-wing radicalism. First, there is the political arena composed of actors with political interests that pass or enforce laws responding to right-wing radicalism. Not only parliamentarians but also the government belong to this category. In Germany the governments have taken the lead in passing new rules repressing political extremism, especially left-wing radicalism before the 1990s. In France, their role remains hardly visible due to the heterogeneity of the legal framework. Chapters 5 and 6 exploring their role shall bring light on this matter. Second, I outlined the role of the security authorities, the domestic intelligence service, and the police in enforcing part of the anti-extremist policy in Germany and the legal provisions maintaining law and order in France. But this chapter also outlined the growing influence of the third sector in the development of preventive measures in Germany and in the enforcement of anti-racist measures in France. I will refine in the next chapter the classification of policy actors and explore thoroughly their perceptions as well as their understanding of the right-wing radical phenomenon. In doing so, I intend to determine whether all actors share the same perceptions of the phenomenon and whether there is only one national policy frame, derived from the legislative framework, that influences state actors in the formulation of responses against the radical right. I continue to emphasise the diversity of state actors: political, administrative, justice, and non-state actors have all responded to the radical right. Among them, there are very diverse institutional traditions, from the police to the social ministries that have implemented preventive measures in Germany. Therefore, I see it as necessary to adopt a micro-level perspective where the policy frames of policy-makers can be explored in order to better understand their perceptions of right-wing radicalism and how they have addressed political radicalism.

Notes 1 In the post-war period the German civil service, which encompasses universities, was purged of 200,000 employees. In Hessen, no less than 75 per cent of the civil servants lost their jobs (Rigoll, 2013, p. 37). 2 Concerning the civil service in general, Rigoll (2013) reports that the Allies were quickly confronted with areas where only very few civil servants had not collaborated with the National Socialist regime. In such cases, they strived to place uncontaminated civil servants in the most sensible positions (judges, heads of administrative departments). However, Rigoll underlines that this strategy has not been successful everywhere (in particular in the police). 3 Translation into English: Müller, 2012, p. 1259. 4 Due to the federal structure of the German Republic, there are 17 Offices for the Protection of the Constitution: 16 have been under the authority of Länder, and one has been under the leadership of the federal government. Remarkably, the police letter in 1949 did not oblige state administrations to separate the police and the intelligence service. Yet, all Offices for the Protection of the Constitution enforced the separation

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5

6 7 8 9

10

rule – including the “new” state after reunification. There could be several reasons: on the one hand, new states extricated themselves from 45 years of authoritarian rules where state security had cumulated intelligence and police powers to the detriment of its population. On the other hand, legal cooperation was set up after reunification between “old” and “new” states. Unsurprisingly, the new states took up the same administration organisation. Yet, the parliamentary inquiry committees investigating the responsibilities of security authorities in the failure to prosecute the NSU terrorist group in 2012–2013 (see Chapter 2) showed the structural weaknesses of the parliamentary control which highlighted the actual limits of the state architecture to repress anti-democratic threats (further details in Laumond, 2015). The issue is particularly discussed amongst the military, in which 199 right-wing extremists were identified between 2008 and 2018. This perception was not identified among political actors from left-wing parties such as Die Linke and Die Grünen. However, these respondents referred to this model, underlining the significant influence it has had on German politics. For an exhaustive review of these criticisms, see Falter, 2019. See Law Aiming at Strengthening Sentences against Offences with a Racist, AntiSemitic, or Xenophobic Motive (03/02/2003). Parliamentarians enacted new legislation on the grounds of growing racist and anti-Semitic violence that was pointed out by the yearly report of the CNCDH in 2002. See the audiovisual archive of the INA where the President of the NGO SOS Racisme regrets a light sentence: INA (16/05/1998).

References Assemblée Nationale (2015). Audition de Gilles Leclair. In: Compte-rendu de la Commission d’enquête sur la surveillance des filières et des individus djihadistes. Paris: Assemblée Nationale. Assemblée Nationale (2013). Rapport d’information n°1056, Suivi et surveillance des mouvements radicaux armés. Paris: Assemblée Nationale. Bachmann, U. (1997). Die Hessische Verfassung – Pate und Vorbild des Grundgesetzes? Einflüsse der Hessischen Verfassungsgesetzgebung und Verfassungsgeber auf das Bonner Grundgesetz. In: H. Eichel (ed.), 50 Jahre Verfassung des Landes Hessen: Eine Festschrift. Wiesbaden: Westdeutscher Verlag, pp. 90–121. Baudouin, J. (2000). Dynamique démocratique et intégration républicaine. In: M. Sadoun (ed.), La Démocratie en France. Paris: Gallimard, pp. 333–411. Bigot, C. (2017). Pratique du droit de la presse. 2nd ed. Paris: Victoires. Bleich, E. (2011). The Freedom to be a Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism. Oxford: Oxford University Press. Bleich, E. (2003). Race Politics in Britain and France: Ideas and Policy Making since the 1960s. Cambridge: Cambridge University Press. Bligh, G. (2013). Defending Democracy: A New Understanding of the Party-Banning Phenomenon. Vanderbilt Journal of Transnational Law, 46, pp. 1321–1379. Bourne, A. (2015). Why Ban Batasuna? Terrorism, Political Parties and Democracy. Comparative European Politics, 13(3), pp. 325–344. Canu, I. (1997). Der Schutz der Demokratie in Deutschland und Frankreich. Opladen: Leske+Budrich. Capoccia, G. (2013). Militant Democracy: The Institutional Bases of Democratic SelfPreservation. Annual Review of Law and Social Science, 9, pp. 207–226.

National responses to right-wing radicalism  107 Capoccia, G. (2005). Defending Democracy: Reactions to Extremism in Interwar Europe. Baltimore: John Hopkins University Press. Conseil d’Etat (1933). Arrêt Benjamin, Decision n° 17413 17520. Decker, F., Kiess, J. and Brähler, E. (2012). Die Mitte im Umbruch. Rechtsextreme Einstellungen in Deutschland. Bonn: Dietz-Verlag. Dolowitz, D. and Marsh, D. (2000). Learning from Abroad: The Role of Policy Transfer in Contemporary Policy-Making. Governance, pp. 5–23. Dolowitz, D. and Marsh, D. (1996). Who Learns What from Whom: A  Review of the Policy Transfer Literature. Political Studies, 14, pp. 343–357. ECRI (2003). Third report on Germany. Strasbourg: Council of Europe. Epstein, S. (2008). Un paradoxe français: antiracistes dans la collaboration, antisémites dans la résistance. Paris: Albin Michel. Falter, J. (2019). Zum Begriff des ‘Politischen Extremismus’ – Kritik und Kritik der Kritik. In: Demokratie und Entscheidung. Beiträge zur Analytischen Politischen Theorie. Wiesbaden: Springer VS, pp. 41–59. Federal Agency for Civic Education (2017). “Initiativen gegen Rechtsextremismus”, Bonn: Bundeszentrale für politische Bildung. Federal Constitutional Court (23/10/1952). SRP-Verbot, 2, 1. Fennema, M. (2000). Legal Repression of Extreme Right Parties and Racial Discrimination. In: R. Koopmans and P. Statham (eds.), Challenging Immigration and Ethnic Relation Politics: Comparative European Perspectives. Oxford: Oxford University Press, pp. 119–144. Geddes, A. and Guiraudon, V. (2004). Britain and France and EU Anti-discrimination Policy: The Emergence of an EU Policy Paradigm. West European Politics, 27(2), pp. 334–353. Gerlach, J. (2012). Die Vereinsverbotpraxis der streitbaren Demokratie, verbieten oder nicht-verbieten? Baden-Baden: Nomos-Verlag. Hafeneger, B. (2015). Von den Anfängen bis zur Gegenwart. Bundeszentrale für Politische Bildung. URL: www.bpb.de/gesellschaft/kultur/politische-bildung/193945/von-denanfaengen-bis-zur-gegenwart?p=all, last accessed on 29.09.2019. Hein, M. (2018). Constitutional Entrenchment Clauses as Measures of Militant Democracy. A Study on Constitutional Review in Europe (1945–2016). Paper presented at the Joint Sessions of ECPR. Hentges, G. (2013). Staat und politische Bildung, von der Zentrale für ‘Heimatdienst’ zur Bundeszentrale für Politische Bildung. Wiesbaden: VS Verlag für Sozialwissenschaften. INA (16/05/1998). Le procès d’un crime raciste: procès suite meurtre de Bouarram. Soir, 3. URL: www.ina.fr/video/CAC98018014, last accessed on 29.09.2019. Jäger, M. and Jäger, S. (eds.) (1992). Aus der Mitte der Gesellschaft. Zu den Ursachen von Rechtsextremismus und Rassismus in Europa, vols. 1–3. Duisburg: Duisburger Institut für Sprach- und Sozialforschung. Jaschke, H.G. (1994). Die Republikaner. Profile einer Rechtsaußen-Partei. Dietz: Bonn. Jaschke, H.G. (1991). Streitbare Demokratie und Innere Sicherheit. Grundlagen, Praxis und Kritik. Opladen: Westdeutscher Verlag. Kohlstruck, M. (2013). Bürgernähe und Bürgerkontrolle schließen sich aus – Der Verfassungsschutz überspannt den Bogen. In: Weiterdenken – Heinrich-Böll-Stiftung Sachsen/ Kulturbüro Sachsen (eds.), Wer schützt die Verfassung? Kritik zu den Verfassungsschutzbehörden und Perspektiven jenseits der Ämter. Dresden: Heinrich Böll Stiftung Sachsen, pp. 117–128. Lang, M. (2007). Karl Loewenstein: Transatlantischer Denker der Politik. Stuttgart: Franz Steiner Verlag.

108  National responses to right-wing radicalism Laumond, B. (2015). Police et surveillance de l’extrême-droite en Allemagne. Paris: L’Harmattan. Lautmann, R. (1972). Justiz – die stille Gewalt: Teilnehmende Beobachtung und Entscheidungssoziologische Analyse. Königstein im Taunus: Athenäum. Loewenstein, K. (1937). Militant Democracy and Fundamental Rights. The American Political Science Review, 31(3), pp. 417–432. Lynen von Berg, H. and Roth, R. (2003). Maßnahmen und Programme gegen Rechtsextremismus wissenschaftlich begleitet. Opladen: Leske + Budrich. Michael, G. and Minkenberg, M. (2007). A  Continuum for Responding to the Extreme Right: A Comparison Between the United States and Germany. Studies in Conflict and Terrorism, 30(12), pp. 1109–1123. Minkenberg, M. (2006). Repression and Reaction: Militant Democracy and the Radical Right in Germany and France. Patterns of Prejudice, 40(1), pp. 25–44. Müller, J.W. (2012). Militant Democracy. In: M. Rosenfeld and A. Sajo (eds.), Oxford Handbook of Comparative Constitutional Law. Oxford: Oxford University Press, pp. 1253–1266. Musterle, A. (2012). Die Reichszentrale für Heimatdienst 1918–1933. Bundeszentrale für Politische Bildung. URL: www.bpb.de/geschichte/deutsche-geschichte/geschichte-derbpb/141567/reichszentrale- fuer-heimatdienst-1918–1933, last accessed on 20.09.2019. Oppenhäuser, H. (2011). Das Extremismus-Konzept und die Produktion von politischer Normalität. In: Forum für Kritische Rechtsextremismusforschung (ed.), Ordnung. Macht. Extremismus. Wiesbaden: VS Verlag, pp. 35–58. Rigoll, D. (2013). Staatsschutz in Westdeutschland. Von der Entnazifizierung bis zum Extremistenabwehr. Göttingen: Wallstein. Roth, R., Lynen von Berg, H. and Benack A. (2003). Programme und Maßnahmen gegen Rechtsextremismus und Fremdenfeindlichkeit – Fragen und Anmerkungen zu ihrer wissenschaftlichen Begleitung. In: H. Lynen von Berg and R. Roth (eds.), Maßnahmen und Programme gegen Rechtsextremismus wissenschaftlich begleitet. Aufgaben, Konzepte und Erfahrungen. Opladen: Leske + Budrich, pp. 9–24. Schwagerl, J. (1985). Verfassungsschutz in der Bundesrepublik Deutschland. Heidelberg: C.F. Müller. Scott-Smith, G. (2012). Western Anti-Communism and the Interdoc Network. Basingstoke: Palgrave Macmillan. Stöss, R. (2008). Extremistische Parteien: Worin besteht der Erkenntnisgewinn? Aus Politik und Zeitgeschichte, 47, pp. 3–7.

4 Towards the identification of multiple frames among actors responding to the radical right Between ideas, institutions, and interests

In this chapter, I  question the assumption that there has been one broad policy frame to address right-wing radicalism in each country. Scholarship underlines that “policy frames may be more or less coherent in different policy spheres, at different times, and in different countries” (Bleich, 2003, p. 30). Building on this notion, I  have formulated two overarching questions that I  will explore in this chapter: are there several policy frames within each country-case that coexist amongst the public actors responding to right-wing radicalism? If there is a plurality of policy frames of responses to the radical right, does this variety of frames exist in both France and Germany despite different historical legacies? According to the theoretical framework of actor-centred institutionalism (see Chapter 1), “the solutions  .  .  . to a given policy problem must be produced by the interdependent choices of a plurality of policy actors with specific capabilities and with specific perceptions regarding the outcomes that could be obtained” (Scharpf, 1997, p.  69). This perspective values the analysis of the diversity of actors in policy-making. Additionally, Scharpf emphasises the importance of the institutional setting in the formation of capabilities and ultimately in the making of decisions. I will therefore explore the capabilities of policy-makers in the light of their institutional environment. However, Bleich argues that the inputs of the ideational perspective are crucial when it comes to identifying frames among policy-makers. Policy frames indeed “point actors towards normative judgments about effective and appropriate policies in ways that tend to propel policy down a particular path and to reinforce it once on that path” (Bleich, 2003, p. 26). Yet, this perspective has long been missing in the institutional approach. For this reason, I will also explore the normative judgments of policy actors by analysing their use of definitions, analogies, metaphors, or symbols that lead them to identify problems and set goals. This procedure is in line with the argument developed by Palier and Surel (2005) according to which exploring institutions, ideas, and interests articulates complementary research streams. It is only after the data analysis through the lens of these three factors that I will be able to identify their impact in the formation of policy frames as illustrated by Table 4.1. Following the analysis, I posit that the institutional setting, the actors’ interests, and their normative judgments have shaped the policy frame of the actors under investigation, possibly to different extents.

110  Actors responding to the radical right Table 4.1 Influence of the factors in forging policy frames on (non-)state actors responding to right-wing radicalism Actors

Factors

Output

State and non-state actors in France and Germany

Institutional setting Interests Normative judgments through personal perceptions

Policy frame(s)

The empirical material collected during the fieldwork research is decisive for the argument made in this chapter. In each interview, specific attention was paid to the perceptions and the beliefs of respondents which contributed to the identification of policy frames. The institutional actors whose perceptions will be scrutinised in this chapter are summarised in Table 4.2. Political actors do not come into direct consideration in this chapter. Their influence on policy-making will be taken into account in following chapters. For the sake of clarity, actors are classified according to their institutional belonging in Table  4.2 and have been divided into four main types of institutions. First, there are non-state actors, such as associations helping right-wing activists to exit the subcultural scene, who play a major role in the public responses to the radical right. “Non-state actors” refers to a wide range of organisations that are not legally part of the state, although they might have close ties with state institutions through public subsidiaries. Here, they are considered as non-state actors because they emerge from civil society and, as I will show, have challenged state traditional regulation of political radicalism. To that extent, they must be analysed as separate actors, even though they have increasingly collaborated with ministries and relied on public funding. In opposition to Katzenstein’s argument on para-public institutions (1987), non-state actors do not always “depoliticise controversial policy areas by turning them into areas of technical and administrative expertise” (Green and Paterson, 2005, p. 5), but quite the reverse. For all of these reasons, associations will be addressed as non-state actors, which marks their critical distance towards state institutions. Second, there are state actors working for ministries or independent public institutions who develop preventive responses to the radical right. From one government to another, the names of the ministries may change; however, the actors concerned mostly deliver educative, cohesion-strengthening, and researchoriented responses. In the German case, the Ministry of the Interior has an obligation to prevent extremist acts; consequently, the department in charge of political education and prevention has developed a series of mainly educative measures. The German Ministry for Family Affairs, Senior Citizens, Women, and Youth, and some research institutions have developed responses to the radical right too. In France, the “Commission Nationale Consultative des Droits de l’Homme” (CNCDH), recognised for its capacities for gathering professionals from the

Actors responding to the radical right  111 Table 4.2  Distribution of the actors responding to the radical right in France and Germany Categories

Institutional actors

Non-state organisations

Non-state actors (DE, FR)

Public institutions without repressive powers

Actors from the Ministry for Family Affairs, Senior Citizens, Women, and Youth (DE), Scholarship (DE)

Security authorities

Officers from the Criminal Police (DE), actors from the Offices for the Protection of the Constitution (DE)

Justice system

Judges from the administrative justice system (DE), prosecutors from the criminal justice system (DE)

Actors from the Commission Nationale Consultative des Droits de l’Homme (CNCDH, FR), actors from the Délégation Interministérielle à la Lutte contre le Racisme, l’Antisémitisme et la Haine anti-LGBT (DILCRAH, FR), Scholarship (FR) Police officers (DGSI and RT) (FR), gendarmerie officers (FR) Judges from the administrative justice system (FR), prosecutors from the criminal justice system (FR)

French administration, academia, and civil society, issues yearly recommendations to prevent the occurrence of racist acts. The “Délégation Interministérielle à la Lutte contre le Racisme, l’Antisémitisme et la Haine anti-LGBT” (DILCRAH), which carries out interdepartmental preventive work against racism, funds projects that indirectly address right-wing radicalism. The third type of protagonist considered is security authorities working for the police and for the domestic intelligence service. The fourth category is the justice system, which is separated into two categories in both France and Germany: the criminal and the administrative justice systems. These institutions and their actors, who might have developed various policy frames because they regulate right-wing radicalism in different ways, will be distinguished in the analysis.

Box 4.1  Methodological box During data collection, I aimed to identify how actors perceived right-wing radicalism in the context of their daily work-activities. In my interview grid, I explored the articulation between these normative perceptions, the interests of the actors, and the existing institutional constraints while responding

112  Actors responding to the radical right to the radical right. In so doing, the respondents were led to talk about different measures that they have been formulating. These narratives helped me to assess the role played by interests, normative judgments, and institutional settings in the shaping of the actors’ perceptions of how to regulate right-wing radicalism. I asked, for instance: • • • • • •

How do you respond to right-wing radicalism? To which part of the radical right do you respond? At which point do you intervene? Which (non-)state actors do you cooperate with? Why don’t you cooperate with XX when you work on this XX case? How do you perceive the work of this XX institution?

These questions, which were for some of them based on the actors’ previous statements, encouraged the respondents to describe their perceptions of 1) the delimitation of the phenomenon they respond to, 2) the responses they have developed in their institution, and 3) the relations they have had with partner institutions. These questions highlighted existing tensions between actors, which helped to better picture the vested interests and normative judgments of each actor and the nature of actors’ constellations. Outlining differences and similarities in the given responses and pursuing a qualitative analysis of these statements will allow the identification of different policy frames.

Non-state actors involved in public programmes In this section, non-state actors are referred to by different terms: namely, nongovernmental organisations (NGOs), the third sector, or the voluntary sector. These terms will be used as synonyms designating registered organisations independent from state institutions or the private market. In addition, I will use the broader concept of civil society. It refers to a heterogeneous group of actors that does not belong to state institutions and that has developed specific norms, values, and social representations. As civil society has acquired a conceptual autonomy which promotes the auto-organisation and auto-regulation of the group (Pirotte, 2007), the positioning of these groups towards state actors and towards each other will be thoroughly explored. From personal perceptions to responses: a diversity of methods and goals In France and Germany1 some respondents insisted on the priority of monitoring and publishing radical right-wing activities. An active member of a well-established anti-fascist organisation in Berlin involved in archival work explains:

Actors responding to the radical right  113 We carry on prevention work through information activities.2 Our priority is to monitor the right-wing subculture and to analyse it.  .  .  . We describe that in our publications which are at the public’s disposal. . . . We are also confronted with stuff. By now, we have acquired status, so when something occurs, people come to us. They know our work and expect from us that we take a position. In France, anti-fascist groups also addressed the issue of right-wing radicalism by publishing information about the activities of these movements, mostly through news bulletins and websites. Following is an example from the anti-fascist internet platform La Horde: We pass on information regarding anti-fascist initiatives and put historical and make current antifascist documentation available. We encourage those who want to confront the extreme right to comment on, to correct and to pass on the information on our website and to come up with new documentation. In line with the German example, the aim of the platform is to provide and spread political information on the radical right. Despite the use of different labels to name the radical right, this example suggests that the country in which these actors operate is largely irrelevant as they share common views on how to address right-wing radicalism. In contrast, a respondent in charge of scientific support in a Berlin NGO involved in youth work describes the method he uses on a daily basis: Political education is totally irrelevant for us. It might be useful for prevention, but we do social work, we rehabilitate and even de-radicalise. . . . That is a word I don’t particularly like. . . . Anyways, we are better equipped with the tools of therapeutic work. . . . That is social work, partly social therapy work and psychotherapeutic work, and partly group therapy sessions. We have our own methods. And it’s true, we tend to consider politics as the Other. These excerpts illustrate two different methods of addressing right-wing radicalism based on two distinct perspectives. This supports the argument that non-state actors have conceived various strategies that are not compatible to achieve their respective aims. This diversity of perceptions on the field is strengthened by the director of an exit initiative who has worked with persons wishing to leave the radical right-wing scene since 2000. During the interview, the respondent refers to “situation analysis” and “community coaching” which refer to a method, involving practitioners and a social scientist, developed by the exit initiative in response to action research addressing radical right-wing militancy (Wagner, Wichmann and Borstel, 2013). Proponents of this method assume that right-wing radicalism is a phenomenon perceived very differently from one local actor to the other. In this regard, NGO actors using community coaching to empower local actors are expected to make a thick description of the different and mostly complex perceptions among local

114  Actors responding to the radical right actors confronted by the radical right. To do so, interviews are organised with actors from local institutions such as schools, local administration, local sport associations, and elected representatives. This allows the mapping of interactions and problems related to the handling of right-wing radicalism. The situation is then evaluated, and several potential solutions to the problems are proposed. These various examples emphasise two determining elements. First, the actions carried out by NGOs are partly inspired by scientific work, which reveals the existing permeability between associations and academia. Second, a whole body of publications was generated which intensified knowledge transfer between institutions. This is illustrated by the example of exit initiatives, which thrive in Germany, especially among domestic intelligence agencies. The diversity of methods and actions suggests that there is a wide variety of perceptions amongst the various non-governmental actors. Since the methods used by NGOs are numerous, the profile of NGO actors should be very diverse too. As a matter of fact, most respondents mention the diversity of their own staff: The rationale that unites us as a team is anti-fascism; we are committed antifascists.  .  .  . There are some who have studied, whereas others have not. That’s not decisive. (Respondent 1 active in an anti-fascist association) We have former police officers, football coaches, also social workers, teachers – very different people. (Respondent 2 working in an NGO designing youth programmes) We have always worked interdisciplinarily. You find locals but also academics, directors of museums, researchers at the military research centre, also activists from the local alliance, from local civil society. (Respondent 3 who took part in a working group in a town home to the largest World War II military cemetery in Germany, which has become a rallying point for right-wing extremists) These excerpts depict various profiles and constellations of actors according to the organisation (e.g. shared political views, diversity of professional qualifications, and interdisciplinarity in local working groups). In sum, the variety both of actions and of the profiles of the actors involved in NGOs addressing the radical right spans a wide spectrum of perceptions and practices. With respect to these examples and to my broader research design, I ask whether it is possible that these diverse actors could share a common policy frame regarding the regulation of the radical right. Designing an institutional setting to deliver preventive measures In the 1980s and 1990s, non-governmental initiatives emerged at the local scale in France to protest against the growing electoral success of the Front National (FN,

Actors responding to the radical right  115 see Chapter 2). New networks of anti-fascist groups organised themselves against right-wing radicalism. Likewise, German anti-fascist groups, trade unionists, but also persons involved in the Church, undertook actions in localities where radical right-wing groups had emerged. In both countries, citizens got involved in order to counter radical right-wing activism. These actors considered their own activism a civic duty, a task that can be legitimately handled by initiatives from civil society. A former leader of the French movement against the FN, “Ras l’Front”, explained that it was not a duty of the state to fight the party but of citizens and added that “inarguably, our republic is not in danger”. In both countries, actions performed by civil society against the radical right, not just traditional state-led actions by institutions of the state, are seen as legitimate. The statement of the French respondent also suggests that the legitimacy of initiatives from French civil society is strengthened by the fact that responding to the radical right is not a state duty, especially in times where the republic is not threatened. This perception is consolidated by the lack of state preventive responses against right-wing radicalism. Indeed, both French and German states did not actively develop comprehensive programmes impeding the progression of right-wing radicalism until recently. Therefore, spontaneous and often weakly organised initiatives emerged in reaction to a phenomenon framed as a public problem that had not been handled by state actors. Co-regulation of the radical right in Germany The early 2000s in Germany marked a turning point in the inclusion of non-­ governmental initiatives in state authorities’ regulation of the radical right, as the German state largely increased the funding of non-governmental prevention programmes against right-wing radicalism. There are three possible explanations as to why the federal government decided to call on non-governmental initiatives. First, civic initiatives developed before state actors decided to fund large prevention programmes. Some of the initiatives vigorously criticised the shortcomings of the repressive policy against political extremism and, in reaction, developed their own preventive projects (see Chapter 3). A respondent from a regional initiative offering counselling in municipalities in Brandenburg underlines the critical standpoint of his predecessor before the introduction of a comprehensive preventive policy by the state: Prior to my arrival [in 1998 when the state largely funded these initiatives], a structure existed but there were only 2,5 employees, the situation was very precarious. Colleagues had to drive a lot throughout the state. [Question] Was there some kind of organisation before 1998? Yes, there was something, and by the way they were extremely critical towards the state. Actually, the association might have disappeared because they were telling the truth. Their work has helped us greatly . . . but it was very controversial because they criticised the state policy. What the Land did back then was definitely not enough.

116  Actors responding to the radical right These first initiatives took risks in criticising the state and could have lost their subsidiaries. However, they also put pressure on their government and contributed to the policy shift towards more prevention. This experience partly explains the decision of state actors to largely involve civic initiatives. Second, liberal democracies whose fundamental values are not constantly attacked tend to respond to political radicalism by taking the “immunised route” (Pedahzur, 2001, 2002) and therefore delegate a large part of their responses to NGOs. Delivering projects against right-wing radicalism is a duty that involves civil society and not merely state actors. With this in mind, the inclusion of nongovernmental organisations to the politics of democracy is required in order to establish a bottom-up dynamic. However, the decision to delegate a large part of the prevention against the radical right to the voluntary sector can also be interpreted in another manner. According to Rhodes (1988, 2000), Western European governments have begun to include new actors in the production of public policies – one of them being the voluntary sector. Rhodes (2000, p. 349) argues that “government policy fragmented service delivery. It compensated for its loss of hands-on controls by reinforcing its control over resources. Decentralising service delivery was coupled with centralised financial surveillance and a massive extension of regulation”. In sum, the government adopted a strategy of more control over less. In light of these explanations, the perceptions of German non-­ governmental actors on the devolution of missions to the third sector should be explored more thoroughly. The rash development of preventive responses to the radical right in the early 2000s was thought of as a new policy area that would be largely devolved to NGOs. This element has also been central in the argumentation developed by German non-state actors during their interviews, as illustrated by the respondent mentioned before who works for a counselling organisation in Brandenburg: In Great Britain the concept of QUANGO [quasi-autonomous non-­ governmental organisations] was introduced. I would define our association as such. It was created by citizens, not by the state. But in practice, we are almost a semi-governmental organisation because of the state financial support. . . . We are an independent organisation but most of our work is on behalf of state institutions.  .  .  . Questions are raised when the state, the ministerpresident or anybody says, “now this and that should be implemented”. We certainly do it, but we do not get as motivated as when it comes from active citizenship. Persons doing something they really believe in, that is important. In our case, yes, we have a government mission, but the mission reads that we have to support and promote civil society. This excerpt emphasises state-funded organisations’ dependence on the state, which tends to corroborate Rhode’s theory. But the respondent also advocates for the delegation of preventive programmes against the radical right to citizens. This nuanced perception is a way for non-state actors to legitimise their position in the new preventive policy against the radical right and to express their interest

Actors responding to the radical right  117 in keeping control over the implementation of preventive measures. Despite the variety of projects led in the past 15 years, non-state actors encountered during my field trips have continuously emphasised the importance of formulating innovative responses based on the experience of citizens in the field. In this funding system, projects conducted by NGOs are regularly evaluated. Their funding is dependent on the results of the evaluations, which illustrates the financial dependence of non-governmental initiatives that remain mostly state-funded.3 As suggested by Rhodes, the decentralisation of preventive responses to the radical right has indeed generated intensified financial control as well as a series of regulations concerning the use of public funds and the evaluation of the project’s outputs. Despite their financial dependence upon the state, NGOs recognise that their actions exist in a policy field that has so far received little investment from state institutions – and they consequently defend their interests, which is very visible in the interviews. This observation corroborates Pedahzur’s thesis, according to which combatting political radicalism is a duty that can legitimately remain in the hands of civil society. NGO actors claim that they have produced knowledge and that their projects have become essential. This has impacted how they define themselves in the policy constellation and how they perceive their role in the policy process. A respondent in charge of scientific support in an NGO promoting intercultural education and preventing violence relates an oral exchange with state representatives that took place during a European committee: State actors are likely to say: “we are powerful, and we know everything. And you are going to do as we say”. But what they are really saying is: “we own the power and that’s a good thing but in order to actually do something, we need your input”. This excerpt epitomises the seemingly antagonistic dimensions of the position of the German state and its NGOs in responding to the radical right: although the regulation of preventive policy against right-wing radicalism relies on a scheme inspired by new public management wherein non-state actors are seen as subordinate, these actors are also very well aware that their competencies are much needed in order to effectively deliver preventive responses to the radical right. German non-state actors as a collective actor? Different German NGOs addressing right-wing radicalism have gathered and cooperated at the local level. This process mostly occurred after striking rightwing attacks that encouraged civil society actors to come together. This implies that citizens with different social and political commitments may find an agreement in order to collaborate and respond collectively to right-wing radicalism. In a city in North-Rhine Westphalia, for instance, citizens and already existing organisations merged into a broad alliance after right-wing violent activists chased down and assaulted children and teenagers in an immigrant neighbourhood of their city in 2000. However, the alliance split shortly afterwards due to internal divisions

118  Actors responding to the radical right regarding which strategy and political line to adopt. A  representative of a leftwing municipal alliance against the radical right in the city outlines the difficulty of keeping the former initiative together: By now there are several alliances. For instance, there is one which is under the leadership of the Church; I think it is a good thing. . . . They are very active and really try to politicise their members, especially those who do not adhere to the left-wing thinking. So, I am really grateful that they exist, but I still think that they should not have left the first global alliance. What they do, they could have done it with us. It is important to be able to endure conflicts. So, there is this union that seeks to reach the middle of society. . . . Then, there are alliances which do not intend to stay alive for 10 or 15 years. They have precise goals. For instance, there is “Blockado”. You can imagine what they do, they just want to block and forestall neo-fascist demonstrations. Then you have “X without Nazis”, they react to fascist provocations – they also organise demonstrations with blockages. This excerpt shows the tensions between the different approaches that have led to secessions in the past. In doing so, the respondent suggests that non-state actors have different solutions for the problem posed by the radical right, which has had major consequences on their organisation and has prevented them from acting as a collective actor. Unexpectedly, the same respondent underlines a positive role of the municipal initiative, namely, launching a coordination unit that has helped to federate the different alliances: In 2007 a coordination unit was created. Its aim is to  .  .  . bring everyone together at the same table. . . . Thanks to this coordination unit, we have managed to do what we had failed at earlier. It was decisive that we got sustainable funding for this unit. If there was no money, I think that the individuals would not have cooperated very long. The municipality played a central role in strengthening non-state actors and making a collective actor out of these small groups. The perceptions of non-state actors involved in the policy-making process of preventive programmes depends not only on their own goals and actions, but also on those of state actors. State actors show interest in having one identifiable and collective partner representing civil society whom they rely on to implement preventive measures against the radical right. Even if non-state actors do work differently, they nevertheless share common goals and are influenced by the institutional setting inducing them to become one collective actor. In sum, German respondents have favoured the emergence of a form of multi-actor governance involving different policy-makers  – state actors and non-state actors. Actors from civil society have expressed their interest in obtaining ownership of preventive responses towards the radical right. They have effectively become essential in the constellation of actors who enforce preventive responses to the radical right, a fact of which they are aware and which strongly impacts their policy frame.

Actors responding to the radical right  119 Non-state actors in France: evolving alongside the state as a strategic advantage In France, several groups addressing the radical right disappeared in the early 2000s. This is illustrated by the anti-fascist sections struggling against the FN: after expanding in the 1980s and 1990s, they have progressively faded away. During an interview, a former activist of Ras l’Front admitted that activists preferred getting involved in other causes once the FN’s electoral results sank after 2002. To explain this, it is important to recall that the French state has hardly developed well-funded programmes to support civil initiatives against the radical right. Rather, it has financed NGOs involved in anti-racist projects. It is therefore relevant to explore how actors from NGOs involved in anti-racist work have perceived their role in policy-making. In France, non-state organisations recognised by the state as serving the public interest may participate in court cases as civil parties. The representatives of the most established NGOs involved in anti-racist work have greatly emphasised this right during interviews, arguing that it gives them the opportunity to exist in the media and to establish themselves as relevant actors throughout the process of prosecuting radical right-wing activists. A senior representative of SOS Racisme, one of the leading French NGOs against racism and one that maintains a close relationship with the Socialist Party, explains: We are rather well-endowed with the legal basis. However, we advocate for tougher penalties and for the enforcement of the existing legal rules by the justice system. We want to raise awareness through civil society actions. For instance, we take part in court cases as civil parties. Another respondent from the same organisation, employed in the litigation section, underlines: “the court cases we get involved in should make noise. We mix politics and law”. These two excerpts highlight the direct relationship between the institutional setting (e.g. the legal possibilities granted to SOS Racisme) and the main strategy of the organisation, which is to take part in court cases and thereby raise awareness on the issue of racism. NGOs take part in court cases to get involved in the political debate and advocate for their interests through lobbying activities. Put differently, it is the specific position of non-state actors who are part of criminal proceedings that allows them to have impact. In addition, state actors have delegated to French NGOs some missions deemed necessary for the enforcement of an anti-racist policy. Several conventions have been set up between the authorities and established NGOs in order to organise legal aid for victims of racist acts and promote tolerance in schools. This means that historically well-established French NGOs under contract actively participate in the achievement of policy measures and consequently become insiders.4 Contrarily, smaller organisations that stand in political opposition with mainstream parties (e.g. anti-fascist organisations, organisations fighting Islamophobia) are ideological outsiders5 (see the next section). Despite their work in the field, they eventually operate out of the policy-making process. In sum, well-established NGOs

120  Actors responding to the radical right play a crucial role in accompanying victims throughout the judicial process and in publicising public problems. The prevailing institutional setting has allowed some NGOs to become active in the policy process of repressing racism (and right-wing radicalism to a certain extent). As suggested by the German case, these French actors have also defined their actions according to their position in the policymaking process. However, French civic initiatives are more strongly scattered between outsiders and insiders. In this context, outsiders remain largely excluded from the state funding system, which is in contrast with Germany, where groups with a radical (left) political line, despite distant relationships with state actors, may find local funding. Conclusion: toward a common policy frame among NGOs actors? Different degrees of involvement of non-state actors against right-wing radicalism were identified: French non-state actors are less numerous and less well funded, and flagship organisations are integrated into the policy-making process, whereas in Germany non-state actors are largely involved in the prevention of right-wing radicalism. What does this mean for the identification of a non-state actors’ frame? NGOs have conceived various projects driven by different perspectives in France as well as in Germany: this is the result of different educational and political backgrounds among non-state organisations. Therefore, contrasting normative judgments among non-state actors were collected, which suggests that these judgments contribute to the formation of a policy frame among non-state actors. In this respect, various normative judgments lead to the shaping of different policy programmes: anti-fascist work, social work, rehabilitation work, and so on. Interestingly, the structural organisation of the radical right (i.e. the larger sub-cultural milieu in Germany) could not be identified as a central factor that contributes to the formation of the policy frame of non-state actors. Much more decisive is the actors’ constellation. In both countries, all non-state actors express their interest in taking the lead on preventive measures against right-wing radicalism or racism. This is a central discursive element in the interviews: NGOs are increasingly involved in the process of delivering responses to the radical right, particularly in Germany, which has led them to identify themselves as indispensable actors in the policy-making process. They have also attempted to enhance their savoir-faire in responding to right-wing radicalism (or racism in the French case) and have profiled themselves as experts in the field. Therefore, non-state respondents consider themselves legitimate policy-makers and intend to stay part of the policy-making process. In this respect, the interest of non-state actors (which, admittedly, mostly concerns insiders in France) in acquiring growing importance in policy-making is a factor in the shaping of their frame. In sum, there is a common policy frame built on the shared view that civil society, in its diversity, has a great role to play as a knowledge producer in policy-making. The normative judgments (e.g. reasons for the commitment to struggle against right-wing radicalism) differ among actors, and examples of broken alliances at the local scale in Germany illustrate the fragility of such

Actors responding to the radical right  121 a great variety of beliefs. However, this diversity is also a driving force because non-state actors are composite actors producing broad knowledge of right-wing radicalism and enabling the introduction of a wide range of responses to this phenomenon for state authorities. In this case, the institutional dimension (i.e. the fact that actors are non-state actors) is overdetermining to identify their frame.

Public actors without repressive powers and their responses to the radical right Besides non-governmental actors, ministries and ad hoc public institutions without repressive powers are involved in the formulation of measures to combat the radical right. I will start by mapping in Figure 4.1 the constellation of actors in charge of prevention, that is the “set of actors that are actually involved in particular policy interactions – their capabilities, their perceptions and evaluations of the outcomes obtainable” (Scharpf, 1997, p. 72). In order to gain comparability and to reduce the scope of the analysis to a manageable level, I will concentrate upon actors at the national level. The prevailing constellation of actors in Germany can be mapped as follows. The size of the boxes and the thickness of the arrows represent the importance of actors in the policy-making process and the strength of connections between public actors, respectively. Figure 4.1 maps the actors involved in the prevention of right-wing radicalism and the interactions amongst them. All actors interact, yet to different degrees of intensity. The Federal Ministry for Family Affairs, Senior Citizens, Women,

Actors from the Ministry for Family Affairs, Senior Citizens, Women, and Youth*

Public actors from municipalities / states

Non-governmental actors

Academics (human and social science)

Figure 4.1 Constellation of public actors without repressive powers and third-sector actors involved in the formulation of responses to the radical right in Germany * The Ministry for Family Affairs, Senior Citizens, Women, and Youth also works in cooperation with the Ministry of the Interior, which has conceived a programme promoting democracy and tolerance.

122  Actors responding to the radical right and Youth has become the main federal state player in the deliverance of public subsidies to NGOs. Municipalities benefit from federal funding in order to obtain additional resources in their budget to combat right-wing radicalism when needed. Additionally, all states cooperate with the Federal Ministry for Family Affairs to set up regional democracy centres promoting actions for democracy and tolerance, and against radicalism. Furthermore, NGOs are part of this constellation as they submit projects to the Federal Ministry, which eventually selects projects to receive five years of funding; they also interact with municipal actors in localities where they are active. Finally, academics specialised in radicalism also form a part of the constellation of preventive actors: they not only interact with ministries but also establish connections with non-state actors – either via virtual interactions (that is the diffusion of academic work among NGOs) or more directly via action research projects. In the French case, at the national level, the current constellation of actors can be mapped in Figure 4.2. Figure 4.2 displays five types of actors. The DILCRAH is a quite recent interdepartmental institution which is subordinated to the Prime Minister and in charge of coordinating public measures taken against racism. Since its reorganisation in 2014, the actors of the DILCRAH have also developed partnerships with NGOs and academics. Another public institution is the CNCDH, a historical independent administrative authority that counsels the government on matters pertaining to human rights. The organisation, in cooperation with academics, publishes yearly reports on the prevention of racism and commissions an opinion poll each year in

DILCRAH*

CNCDH**

Outsiders ****

NonGovernmental Actors*** (insiders)

Academics

Figure 4.2 Constellation of public actors without repressive powers and third-sector actors involved in the formulation of responses to the radical right in France *   Inter-ministerial Delegation against Racism, anti-Semitism and anti-LGBT+ hate **   National Advisory Human Rights Commission, independent administrative body ***  Main associations, which have a public service delegation contract: SOS Racisme, LICRA, LDH ****  Main associations that are not state-funded: CCIF,6 PIR,7 anti-fascist groups

Actors responding to the radical right  123 order to measure trends in public opinion concerning tolerance (see for instance Mayer et al., 2016). Finally, non-governmental organisations are also included in this constellation: the most-established organisations have been cooperating with the DILCRAH to conduct projects supporting the victims of racism in their legal proceedings. As mentioned earlier, there are also associations in France that do not depend on state funding and who have developed a state-critical stance (outsiders). Finally, a significant number of academics are involved in the activities of NGOs; these connections are illustrated by NGO activists being invited to scientific events and vice-versa, which suggests circulation of knowledge amongst the various actors involved. Institutional setting and normative judgments in the formation of policy frames A specificity of the aforementioned constellations is their fragility. In the French case, the DILCRAH exemplifies the significant changes that have occurred within the public institutions developing preventive measures. In 2003, an interdepartmental committee in charge of providing preventive responses against racism was created by decree from incumbent President Chirac (Decree, 08/12/2003). It was thought of as the thinking body of the French policy against racism. In practice, few results emerged. The committee held nine meetings between 2003 and 2013. In November 2014, the new Prime Minister decided to overhaul the DILCRAH with enhanced responsibilities and budget (€100,000 for 2015–2018) in order to run national initiatives and encourage local policies to promote citizenship. With regard to the historical outline of the institution, it was important to see how respondents perceived their position within this unstable institutional setting. One senior employee of the DILCRAH, a member of the steering committee, was asked about the institution’s place within the larger institutional setting: [Question] Regarding the prevention against the extreme right [in French, extrême droite], how does the DILCRAH take position? Well, we are. . . . There is no rule, but we are an interdepartmental delegation, so we are something between a state organisation and an administrative body. It is difficult to be independent when we take political stands. When asked how the radical right was perceived among the DILCRAH, the same respondent explains: The extreme right constantly criticises us for being politicised. . . . But our defence is to give a universal response: we do not say “that is Marine Le Pen”, “that’s X or Y”. I am legally obliged to remain neutral. So, whilst facing the Front National – let’s be honest, that’s what we are talking about – I have to stay neutral. If we mean the extreme right, we will say “the extremes”. You may think this is hypocritical but there is more. We assert that whatever happens, our problem is the [illegal] deeds. We don’t care whether it comes from

124  Actors responding to the radical right Marine Le Pen, Christian Estrosi, Nadine Morano, or Manuel Valls,8 what is said is said and is going to be repressed because it has negative consequences for national cohesion. We do not identify actors and groups as long as they act within the law. This excerpt shows a decoupling mechanism: the respondent outlines that administrative institutions have been tied to the law that does not identify political radicalism as a possible threat to democracy, which explains why state responses target illegal acts and not persons or groups as long as they act legally. However, in practice, it is challenging not to target a political family which has been ostracised in the political arena for decades and which promotes ethnocentric attitudes. This explains why the respondent acknowledges that this proceeding may seem “hypocritical”. This excerpt is the empirical illustration of a powerful cognitive differentiation between the countering of radical right-wing parties operated by political actors and the struggle against racism and proscribed groups that may be conducted by administrative actors such as the DILCRAH. In sum, the respondent does not perceive her institution and state authorities in general as having the legitimate authority to frame radical right-wing activists as a policy problem; therefore, their policy responses are framed as targeting acts rather than political groups. But in practice, they also prevent right-wing radicalism. In structural terms, the DILCRAH had an operating budget of roughly €4 million in 2015 of which €2,5 million was spent on the creation of partnerships and projects with other institutions and €1,4 million was allocated to 218 local projects, suggesting an interest in engaging with non-state actors to prevent racism. The same respondent asserts: We create partnerships with the organisations that we support. . . . We have flagship and historical associations but also smaller cultural organisations, [organisations in charge of] memorial sites and academics. . . . Besides that, we have a call for projects at the local scale. These are one-year projects. We do not have the possibility to establish multiyear agreements on aims. . . . Our budget is at risk every year, especially next year [2017, a presidential election year]. In comparison with what has been previously mentioned about the integration of French civil society in the making of measures against the radical right, this is a new direction despite receiving only short-term support. The perceptions of the respondent are greatly influenced by the instability of the prevention budget due to the dependence of the DILCRAH to political uncertainties. However, cooperation between the DILCRAH and NGOs has thrived, bringing the institution closer to the German example. An empirical finding is that the frame of these public actors is also influenced by normative judgments. For instance, the DILCRAH, whose similarity to politics has prevailed, has endorsed and spread a vision of anti-racism in line with the traditional state vision of racism (see Chapter 1). An illustration of this ideological

Actors responding to the radical right  125 closeness is the refusal of political authorities to use the concept of Islamophobia despite its establishment in academia (Hajjat and Mohammed, 2016). In this political context, the DILCRAH and the main state-critical association fighting Islamophobia, “Collectif contre l’Islamophobie en France” (CCIF), do not have any relationships and projects of CCIF that grant help to victims of racism or right-wing radicalism are not state-funded but may benefit from the financial support of other public institutions which recognise Islamophobia (e.g. the European Union). In that respect, public actors of the DILCRAH have been marked by the traditional constellation of actors in French anti-racist policies and their normative judgments. In sum, largely inherited judgments have played an important role in the conception that actors of the DILCRAH have had of appropriate public responses to racism and right-wing radicalism. In the German case, looking at the institutional setting is decisive to identify how state actors have developed a policy frame. To illustrate this point, I would like to consider one example that has had a lasting impact on preventive actors. In 2011, the incumbent Federal Minister for Family Affairs, Senior Citizens, Women, and Youth, Kristina Schröder (CDU), introduced the so-called Demokratieerklärung (declaration on democracy), or Extremismusklausel (extremism clause) for its detractors. This rule compelled non-governmental organisations whose projects were state-subsidised to sign a clause certifying that they would not cooperate with persons or groups that were known as opponents of the free democratic basic order (FDGO) or that could potentially operate against it. One of the consequences of this clause was that NGOs collaborating with actors from the radical left classified by state authorities as opponents to the FDGO were threatened, and the clause prevented them from getting public subsidies. This decision should be considered in the German context where the Christian Democrats have traditionally been in favour of an exclusion of left-wing and right-wing radicalism (see Chapter 3). Given the significant number of NGOs coming from the left-wing corner and carrying out projects against right-wing radicalism, the government wanted to prevent public funding from financing left-wing radical movements. The introduction of this rule, after a decade of proliferating relationships between federal ministries and NGOs, can be analysed as a step backwards (Quent and Schulz, 2015). Numerous civil society actors distanced themselves from this clause and decided not to sign the form, effectively refusing funding from the federal state. NGOs could still send applications for funding from other levels of governance (e.g. from Länder) that did not implement a similar rule. But the traditional cooperation between NGOs and federal ministries had deteriorated. The former leader of an NGO against anti-Semitism, who joined the Ministry for Family Affairs, Senior Citizens, Women, and Youth was years later asked about this episode: Minister Schröder was first and foremost committed to struggle against Islamism and left-wing extremism. She was constantly in opposition with civil society regarding the extremism clause. All associations were obliged to agree on the clause or else risked being monitored by the intelligence service. A climate of suspicion developed.

126  Actors responding to the radical right This respondent now speaks as one of the representatives of the Ministry for Family Affairs, under the political leadership of the Social Democrat Ministry that replaced Kristina Schröder and which repelled the extremism clause in 2014. This shows both the ideological changes within the same institution from one legislature to the other and the mobility of the upper echelon of NGO staff that have progressively been able to join German administration. Mostly, it emphasises the dependency of the administrative structure to political change, which impacts the normative judgments that are set to be promoted within the institution, and therefore also impacts the interactions taking place between state actors and actors from the third sector. Finally, it reinforces the idea I have invoked in this sub-section that changes in normative judgments are intertwined with the developments within the institutional setting: both factors concurrently influence the orientations of preventive policy against right-wing radicalism. Actors’ interests I now turn to the analysis of interests in the formation of the policy frame of state preventive actors. Ministries without repressive powers not only contribute to the conception of preventive programmes but are also part of the broader policy field of responses to political radicalism. In this way, they are key stakeholders, along with security authorities, which have historically been involved in repressive measures. Actors from ministries without repressive powers have received increased importance in the making of measures against right-wing radicalism over the last few years, both in France and in Germany. How have these preventive actors positioned themselves toward the traditional repressive actors? In both countries, their missions were at first perceived by political authorities as complementary measures to the traditional repressive measures. Progressively, state preventive actors have delivered policy measures, have produced recognised knowledge, and have finally managed to establish themselves as leading actors in prevention – especially in Germany. Yet, these actors have faced substantial institutional challenges in securing their position. One respondent of the German Federal Ministry for Family Affairs, who coordinated both the development and the implementation of the current multi-year programme, Demokratie Leben (Living Democracy), gives the following account of the coordination meetings on the matter of right-wing radicalism between different ministers: [Question] How do you cooperate with other departments? We work well together with the Ministry of the Interior now. They’ve finally understood that they cannot do all the work alone. So, we’ve developed an interdepartmental working group, “democracy promotion and prevention of extremism”. In this group, there are also people from the Federal Ministry of Finance and from the Federal Ministry of the Interior, but other organisations are also involved like the Labour Ministry or the Federal Ministry of Economics. We need to make sure that programmes against extremism are made in these ministries as well.

Actors responding to the radical right  127 This statement suggests that there is coordination and contacts within the federal administration and therefore common perceptions regarding the importance of developing preventive measures in coordination with non-state actors. However, this is the result of a process marked by an attempt, by the actors from the Ministry of the Interior, to take the lead on a policy field that is historically theirs. Yet, the actors from the Ministry for Family Affairs have managed, over the years, to become a recognised policy-maker managing a large part of the policy against right-wing radicalism. On that point, I argue that the policy frame of preventive state actors resembles, in many ways, the frame of non-state actors: both are interested in seeing preventive measures acquire a higher rank in the general policy against right-wing radicalism. In this section, I emphasised the role of politics in the forging of policy frames. First, actors’ normative judgments, which often derive from political constructions (e.g. anti-extremist doctrine in Germany derived from the historical dominance of security authorities, separation between the arenas of politics and policy in France), strongly impact the formation of their policy frame. Public actors without repressive powers in both countries recognise the necessity to work with non-state actors in that they both share the idea that prevention, which strongly relies on the programmes and actions carried out by NGOs, is crucial. Second, preventive programmes are fragile due to their dependency on the political willingness to fund prevention. Whilst this is very visible in the French case, German preventive programmes against right-wing radicalism are more comprehensive and sustainable. Yet, even in the German case, political alternation may destabilise the actor’s constellation and exclude NGOs from the regulation of right-wing radicalism. In this respect, a hypothetical radical right party in office would have major consequences on the policy against political radicalism. In the Brandenburg Parliament for instance, the minoritarian AfD faction introduced an amendment in an attempt to remove the state policy against right-wing radicalism altogether. This suggests that the policy frame of preventive state actors is very much influenced by the institutional setting and characterised by great dependency of preventive actors on the normative judgments of the executive. Third, scrutinising the interests of public actors without repressive powers shows that they first and foremost want to be recognised in the policy-making process and position themselves towards ministries traditionally in charge of repressive measures. In this context, preventive actors are characterised by their identity of relatively new policy-makers.

Policy frame of actors from security authorities I now seek to identify the policy frame of security actors handling right-wing radicalism. A distinction must be made between the Criminal Police and the Offices for the Protection of the Constitution in Germany, and between the police (with an intelligence service integrated in the public security department of the police, the Renseignement territorial), the gendarmerie (with an intelligence department, the Sous-direction de l’anticipation opérationnelle), and the independent intelligence service, Direction générale de la sécurité intérieure (DGSI), in France. Despite

128  Actors responding to the radical right the fact that the police are hierarchised and centralised into structures where decisions are made vertically, the police forces are also composed of diverse interests, from which concurrence might emerge (Jobard and de Maillard, 2015). Regarding this hierarchisation, the criminologist Jean-Paul Brodeur (1983) makes a central distinction between high and low policing. Whereas high policing seeks to protect and perpetuate a political and social order making it the paradigm for political policing (Manning, 2008), low policing aims at protecting the community and is first and foremost focused on repressing offences and crime. The nature of these two types of policing is different: whilst high policing manages crime, low policing seeks to repress it (Brodeur, 2003). Does this distinction impact how the various security actors handle right-wing radicalism? Put differently, do different security actors’ perceptions regarding the handling of the radical right conflict with one another? Classifications, procedures, and goals: shaping perceptions France As stated in Chapter 3, responding to right-wing radicalism is not, and has not historically been, a central issue in French policy-making. It is interesting to explore how actors from the police and the gendarmerie define a phenomenon to which, whilst not of central importance, they must nevertheless respond. A senior civil servant from the DGSI explained that a distinction must be made between the FN and the “ultra-right” (ultra-droite), even though he recognised the existence of bridges between these movements, especially within the security branch of the FN. He divides the ultra-right into three categories: one made up of the “identitarians that are mostly combatting Islam”, a second made up of “ultra-nationalists with a very restrictive vision of what France is”, and, finally, “the neo-Nazis”. A respondent from the central services of the gendarmerie with a senior position identifies a specific relation of the ultra-right to French history. In his opinion, “counter-revolution heritage is central for the ultra-right”. He then identifies two categories: “the bourgeois and Catholic ultra-right” and “pagan movements such as the solidarists or the neo-Nazis” who “sociologically belong to the working class”. My analysis of these two excerpts is twofold: there is a consensus about the broad definition of the object of observation despite different institutional belongings. The creation and use of a common term, ultra-right, help define the phenomenon they have been struggling against. It refers to the most extreme fringe of the radical right. In their discourse, the ultra-right is separate from the FN. Moreover, despite the fuzzy and disputable character of their classifications of ultra-right movements, these excerpts show that security actors have been producing a certain state knowledge on the nature and organisation of the French radical right. Actors were then asked to elaborate on the reasons for which they repressed the ultra-right to further explore their personal perceptions. A senior police officer from the intelligence section of the gendarmerie explains that the ultra-right is a phenomenon which “threatens public order”. He further adds that its repression

Actors responding to the radical right  129 is included in the broader policy of “maintenance of law and order”. Another respondent, an intermediate intelligence officer from the French police (Renseignement territorial), indicates that the “extreme right” on the contrary is “a political party, the FN”. Since 1995 and the Socialist Party’s wiretapping scandal, the domestic intelligence service has been (at least legally) constrained to stop monitoring political parties. The respondent subsequently underlines that “today we neither monitor the extreme right, nor the extreme left . . . we do not watch normal political parties”. When asked what he meant by “normal political parties”, the respondent answered that it refers to “legally registered parties that are represented in assemblies, which is an indicator of political legitimacy; these are parties that operate according to established rules”. In this regard, “the only thing we can act upon is public order”. He finally asserts that movements acting illegally belong to the ultra-right. In a similar vein, a senior respondent of the domestic intelligence service that preceded the creation of the DGSI agency asserts that the aim of intelligence is to “counter movements that may attack against democracy”. He later adds “we are focused on violence above all”. Another respondent from the DGSI agency underlined that the agency “is mainly interested in terrorist threats”. In all these excerpts illustrating how security actors have explained to whom they respond, the emphasis is put on maintaining law and order in the first two cases (police and gendarmerie) and in the last case, on protecting the democratic order, which is understood as the fight against terrorist movements (DGSI). The common aim of the respondents is to fight the violent character of the ultra-right. In previous chapters, I outlined that legislation allowing the repression of political radicalism has focused strongly on the maintenance of law and order. Consequently, it comes as no surprise that radical right-wing movements are perceived by security authorities through their propensity to become violent. Their harmfulness is defined by the violence they could bring upon the public space. In sum, these excerpts show that security actors produce state knowledge thanks to their grass-root activities: this is even more visible at the local scale. A  senior civil servant from the gendarmerie of a rural département in Northern France underlines that the gendarmerie as well as the police present their results to the executive authority, the prefect, once a week. Their role in the production of an official knowledge base has far-reaching consequences. The example of left-wing radicalism is blatant. In 2008, acts of sabotage on the railway network were perpetrated. Dufresne (2012) shows how the inquiry quickly focused on a radical leftwing group living in a community in a small village, Tarnac. A central figure in the political construction of this case was Alain Bauer, a professor for criminology with tight connections within the Ministry of the Interior. He provided chief executives of the French police with a new book published by an anonymous ­committee – The Coming Insurrection (L’insurrection qui vient) – an anarchist pamphlet advocating for a political uprising. Rapidly, police actors and the incumbent Minister of the Interior became concerned about the purpose of the authors of the book and about left-wing terrorism in general. Several intelligence officers mentioned during the interviews that the right-wing scene is better known by the police than the left-wing scene whose structures are more resistant to police surveillance. This

130  Actors responding to the radical right perception has had major political consequences: left-wing radicalism, symbolised by the Tarnac case, became a priority during Michèle Alliot-Marie’s term as Minister of the Interior (2007–2009). This case illustrates the influence that security actors may have on political actors when it comes to the regulation of political radicalism, and how they might impact the normative judgments of political actors. In regards to right-wing radicalism, the police have similarly produced institutional knowledge, and right-wing radicalism has been framed as clearly identified groups whose activities and projects are easily accessible to the police. Germany In the German case, the importance of the separation of the intelligence service and the police is central to identify frames. Three respondents of the intelligence service who had a degree in humanities, amongst whom two were PhDs, were asked to describe their daily routine. One respondent from a state intelligence service with a PhD in political theory explains that he is expected to respond to requests from his administration and to submit evaluations, for instance prior to meetings with the Parliamentary Control Committee, in charge of controlling the activities of the intelligence service. Giving the example of the right-wing party, Die Rechte, that launched a campaign rejecting asylum seekers, the respondent acknowledges his role as a facilitator who explains how to face this political mobilisation. His professional occupation leads him to perceive right-wing radicalism, not in terms of legal rules, but in terms of group dynamics and ideology – using his academic knowledge as well as his field observations. This interest in understanding the dynamics of radical right-wing groups is also reflected by the involvement of some Office for the Protection of the Constitution at events on right-wing radicalism, gathering academics, NGOs, and police forces. This is confirmed by the statement of another respondent from a state intelligence service, also with a PhD degree in social science, who long worked within the police and eventually took a senior position within the Office for the Protection of the Constitution: At the office, there is a tradition, we do not only analyse activism but also ideology. You have persons here who work on the issue of revisionism in the right-wing extremist ideology. They do not only ask whether revisionist comments are a criminal offence. That means that we know much more about right-wing extremism than the police. . . . I have always been moved by xenophobic violence, I have never really forgotten how I thought when I was in the police and on the field. Our working paper [on revisionism] surely helps but often, it is just talk. Here, the respondent emphasises two different perspectives that he has developed after having worked both in the police and for the intelligence service. He suggests that repression of right-wing radicalism is based on a thorough analysis of its dynamics, beyond the legal definition of right-wing extremism, in contrast with police work. Beyond the usual rivalry between security institutions, this comment

Actors responding to the radical right  131 outlines the differences in the nature of the respondent’s activities within the intelligence service and those of the police. Intelligence officers working on the radical right on a daily basis have first and foremost considered themselves as the producers of knowledge on the radical right and its current dynamics, without directly addressing the eventuality of a repressive action. Regarding the criminal police, actors have been constrained by the police criminal statistics that command police officers from the Criminal Police Department in charge of political criminality (the State Protection Office, or Staatsschutz) to classify their cases according to their motivation. In other words, right-wingmotivated offences and crimes must be registered. I mentioned in Chapter 2 that these statistics had a great political meaning and were fiercely discussed in the early 2000s (Bleich and Hart, 2008) because a range of right-wing motivated offences had not been classified as such. Two reasons were invoked: first, only offences with the intention to endanger the fundamental democratic principles of Germany were registered as political criminality; second, it was argued that police officers were not systematically able to identify the right-wing radical character of an offence. This suggests at least two things: the classification system encouraged police officers to restrict right-wing radicalism to acts against the state, and identifying right-wing radicalism requires knowledge that was not part of the training of police officers. The director of the Criminal Police Office in Berlin explains how his service now classifies politically motivated offences: On politically motivated crime, we have to act in coordination with the public prosecutor’s department. It is a legal requirement; however, for mass delinquency it is not always the case in practice. Politically motivated offences can be smearing or assaults; it can also be really specific like crimes against the state such as espionage. Property damage can be politically motivated. Espionage and incitement to hatred cannot not be political. If somebody keeps on denying the crimes of the NS regime, it can only be politically motivated. These are cases that we work on. This excerpt illustrates that the perceptions of officers specialised in politically motivated criminal offences towards the radical right are deeply influenced by official classifications. The objectives of actors from State Protection Offices concerning political radicalism are well-determined, they need to keep track of politically motivated crime and investigate these cases. Investigation work plays a central role in the interviews conducted with police officers from different State Protections Offices. In short, right-wing radicalism is perceived through the lens of right-wing criminal acts, which need to be registered and, eventually, solved. In the discourse of respondents, it clearly appears that the investigation of politically motivated crime also relies on preventive work. In this context, a police officer from the State Protection Office in Brandenburg explains: We enforce preventive measures according to police law. So, we have this mission, to identify [right-wing] structures at an early stage in order to be

132  Actors responding to the radical right able to influence them. For instance, with MEGA [mobile task forces against violence and xenophobia]. Countering right-wing radicalism being perceived as a political priority in Brandenburg, specific units have been introduced in order to conduct patrols in places where radical right-wing groups gather. In this context, activists can be monitored. If these prevention units aim to prevent right-wing criminality, they are also part of the investigation work of the police. On this subject, the same police officers adds: These MEGA units, they go to certain places during core time to catch criminal offences as they occur, to investigate criminal cases, and to arrest the offender. Actually, that’s what they do. That’s something I could not do properly with an investigation unit. MEGA prevention units have one priority, to uncover illegal activities and investigate criminal cases. Due to the importance given to the repression of right-wing criminality in Brandenburg, the prosecution of criminal offences is preceded by regular contact with right-wing activists, helping the police to map right-wing activities and to detect illegal deeds. In short, police officers’ perception of the radical right is strongly driven by their mission of prosecuting criminal offences. Unlike the intelligence service, when actors from the criminal police monitor radical right-wing activists, they seek to detect illegal acts that could be prosecuted instead of examining the logic of their militancy and the tenets of their ideology. In doing so, actors also produce knowledge on the radical right, first through the systematic production of statistics, and second, through prevention work involving the thorough monitoring of the activities of right-wing groups. By comparison, German actors from the domestic intelligence service and from the police have developed various perceptions on how to repress right-wing radicalism due to having different practices. A key mission of the Offices for the Protection of the Constitution is to process information on the organisation of radical right-wing groups and produce knowledge on extremist movements for political authorities. In contrast, the German criminal police are expected to investigate crimes and offences and lead the cases to court. Since the regulation of right-wing radicalism has become a salient issue involving a great number of civil society groups, criminal cases are subject to significant political and media exposure. The salience of the issue has been accentuated by cornerstone events such as the discovery of the NSU terrorist network and the more recent murder of the government official Walter Lübcke by a right-wing extremist activist. In addition, there has been growing pressure on the police to solve criminal cases with an increasing tendency to incorporate the tools of new public management into the police organisation (Savage, 2007; Jobard and de Maillard, 2015), for instance, measuring the efficiency of the police or paying greater attention to clearance rates. These cumulating evolutions have strengthened the policy frame of police officers, which is characterised by the centrality of investigation work. Although there is a

Actors responding to the radical right  133 consensus on the perimeter of right-wing extremism due to the history of the antiextremist policy among security authorities, the criminal police have focussed on implementing repressive measures in a short-term perspective and are rather aim-oriented, whereas actors from the Offices for the Protection of the Constitution have undertaken missions that focus on collecting information on right-wing movements in order to produce state knowledge on political radicalism. In sum, the perceptions of German security actors on how to respond to rightwing radicalism are quite contrasting. These perceptions vary according to actors’ institutional affiliation and, consequently, their professional and educational background. The French example is characterised by a unified production of knowledge since the police and intelligence service are not as separate as in Germany. In both countries the institutional setting is central to explaining the perceptions of actors. These perceptions have led security actors to produce state knowledge, which bears on how political actors perceive the radical right and evaluate the dangerousness of radical groups, as illustrated by the Tarnac case in France. Embeddedness of perceptions in the broader policy against political radicalism I now move to the question of how security actors perceive their actions within the broader scope of the policy delivered against the radical right. A first striking element is the perception that actors from the political arena – including the Minister of the Interior and parliamentarians – have from the responses against right-wing radicalism implemented by the security authorities in France and Germany. This is particularly visible when the issue is on the political agenda. In the German case, both the criminal police and the domestic intelligence service have been empowered throughout the last few decades. One might recall the state initiative, Tolerantes Brandenburg, in 1998, through which the Social Democratic Minister-President established a comprehensive framework against right-wing radicalism. The programme sets out three priorities that facilitate an efficient response to right-wing radicalism: political signals, repressive measures, and social-integrative initiatives. The interplay between these three approaches was perceived, and continues to be, as the most reasonable way to dam the radical right in Brandenburg. In the late 1990s, after almost a decade of criticisms addressed at the government for not being able to contain right-wing violence, this programme involving different policy approaches was undoubtedly a way to manage the demand for an innovative policy. In this context, security authorities continued to enforce repressive measures, as conveyed in the following interview excerpt from an intermediate police officer in Brandenburg: Tolerantes Brandenburg is first and foremost a political programme. It spreads over different levels of governance among all those who tackle right-wing extremism. Countering right-wing extremism, helping victims are substantial parts of it. You also have the counselling stations. And other social forces. . . . It gathers persons who not only repress like we do in the police, but also

134  Actors responding to the radical right persons who handle right-wing extremism at the political level. . . . If we put labels on these persons, we clearly are those who come when something has happened. This excerpt illustrates how police actors have internalised the role they have been assigned (i.e. the implementation of repressive measures) in contrast with the preventive ones assigned to other actors. In addition, actors from the political arena have increasingly legitimised security actors in their repressive responses to right-wing radicalism. In the French case, security actors have been assigned the leading role in the repression of radicalism. A recent example is the increased budget for the DGSI in order to respond to the terrorist threat, and the strengthening of territorial intelligence after it was stated by the Parliament in 2015 that they were too under-financed and under-equipped to effectively repress political radicalism. In Germany, despite the disclosure of the NSU case in 2011 which revealed the major shortcomings of the Offices for the Protection of the Constitution, the German government decided to strengthen the intelligence service, in a context where both right-wing radicalism and Islamism were perceived as risky (Minkenberg, 2017; Grumke and van Hüllen, 2016). These examples show that in both countries the actions of the intelligence service and the criminal police are mainly perceived as repressive by security actors themselves. This self-perception is strengthened by the increase of the annual budget of security authorities in times when radical groups are evaluated as highly dangerous. However, the production of knowledge leading to political choices concerning the regulation of right-wing radicalism is based on analyses produced by security actors themselves. The latter consequently have an interest in remaining hegemons in the production of state knowledge on political radicalism. This may explain why the Federal Ministry of the Interior in Germany launched a preventive programme that is considered the second pillar of state programmes against political radicalism. Similarly, among the domestic intelligence service, several states and the federal government have established hotlines and programmes in order to support radical right-wing activists wishing to exit the scene, thus getting involved in prevention activities. At first glance, this conveys the idea that security actors are committed to prevention. However, it is worth exploring how actors perceive these specific activities. Two types of responses were identified among respondents. First, the respondents from the intelligence service were likely to integrate their preventive function in their work and even to claim a preventive tradition that would have existed among the Offices for the Protection of the Constitution. An actor with an intermediate position in the Hamburg intelligence service explains: We are the first people to be contacted. We can help. We too have people who talk with extremists. People know that their case will be treated confidentially. But then, the further assistance. . . . We contribute to the exit process but social services, the NGOs, they assist victims. You know, these are different approaches and different tasks. We don’t do much together and still, right-wing extremists willing to exit don’t slip through the net. . . . We have

Actors responding to the radical right  135 a constitutional duty, called militant democracy, to protect democracy. And that’s something we take seriously. Our first task is to monitor and analyse extremist phenomena, to provide the public with information, that’s what we do. Of course, we inform exit programmes. There are many NGOs helping activists leave the scene, we organise information booths together. The respondent defends his institution’s legitimacy to undertake preventive measures despite the existence of associations engaged in these activities. To this end, he mobilises the constitutional framework that grants the Offices for the Protection of the Constitution a significant role in the protection of democracy. Without denying the role of NGOs with whom he collaborates, the respondent defends the commitment of the intelligence service for preventive actions. Another respondent, who has an intermediate position within another state intelligence service, reports that his administration is often perceived as not legitimate to conduct preventive measures because the intelligence service has mainly been a repressive institution. He contests this position and points out that federal prevention programmes conducted by the Ministry for Family Affairs have not brought any major changes because security authorities have always done such things. He finally asserts that the Ministry of the Interior in his state has been a forerunner for preventive activities. By taking a defensive stance towards the activities of state actors from non-repressive ministries, this respondent asserts the role of historical policy-makers as producers of valuable knowledge for the regulation of right-wing radicalism in the country. This suggests that the frame of security actors is influenced by the normative judgment that security institutions were, and remain, central to policy-making. Regarding the police, a mid-level police officer explains: Preventive work is rather in the hands of society, we do that as well, of course, but not to that degree. In so doing, we have a sphere of cooperation, but each actor operates in his own field. Cooperation is very visible when we work with the Opferperspektive [associations in charge of giving support to victims of right-wing violence]. That means that the Opferperspektive supports us when we receive the victims. As suggested by this excerpt, and in contrast with actors from the intelligence service, police officers generally recognise the complementarity of their repressive missions and the preventive tasks undertaken by non-state actors. In line with the previous findings, police and intelligence actors seem to cultivate different perceptions: whereas the former – as main producers of knowledge on political radicalism – tend to endorse preventive missions, the latter rather distance themselves from this task and recognise the legitimacy of non-state actors. On the French field, the respondents did not provide such detailed responses. As a matter of fact, respondents from the different departments of intelligence service did not address the issue of prevention at all. An exception is a senior civil servant working on intelligence issues for the president’s administration who expressed

136  Actors responding to the radical right a clear position concerning the preventive measures that should be taken against radicalism, mostly against Islamism. During the interview conducted in late 2013, the respondent mentioned a project that was then confidential regarding the prevention of radicalisation. This underlines how late the prevention issue appeared in the French context when compared to the German case. This actor emphasised the necessity of “finding upstream solutions” against radicalism. He however underlined that this mission should not be left only to the intelligence service and then added that intelligence institutions “should not do prevention”. In this apparently contradictory discourse, the respondent argues that other actors, such as social services, education actors, or health actors, need to address the issue of prevention, although it is French security authorities who have conceived the new prevention plan against radicalism. This rejection of prevention is hardly surprising as radicalism, when handled with policy measures, is framed as a security matter in France. This resonates with the reluctant reactions of police officers who had to do prevention work in French banlieues as part of the police de proximité (community policing), a major reform under the socialist government in the late 1990s which was then abolished in 2003. The same respondent promotes interdepartmental policy to associate actors seen as having more legitimate authority to carry out preventive actions. Since prevention became salient in 2012 with a new wave of terrorism, security actors have preferred not to take the lead but have nonetheless welcomed prevention initiatives. Due to the shock caused by terrorism among French society in recent years, a prevention policy against Islamism was rashly developed: even though security actors were first propelled as key players in the prevention of terrorism, the prevention policy has largely introduced actors from ministries without repressive powers and non-state actors in 2015 (Sèze, 2019). In sum, a strong feature of the policy frame of security actors is to endorse repressive missions to regulate radicalism and to distance themselves from preventive work. In this sub-section I argued that both French and German security authorities are perceived by political authorities as legitimate in implementing repressive measures against radicalism. The historical production of knowledge by security authorities on political radicalism emphasises their authority to develop repressive measures. With the increasing importance of prevention, French security authorities and the German police have distanced themselves from these activities. The German domestic intelligence service, however, has a unique position in accordance with its institutional interests: respondents from the intelligence service claim their legal authority to conduct preventive measures and take a critical stance towards the activities of other legitimate non-state actors who have developed wide knowledge on right-wing radicalism in the last decades. Concluding on the frame of actors of French and German security authorities, I  contend that despite different framing processes at the national level, French security actors and German police actors have developed similar core perceptions on how to respond to right-wing radicalism: the idea that repressive measures, the core mission of the police, should have a central part in the regulation of rightwing radicalism is key. They are historical policy-makers who have produced

Actors responding to the radical right  137 state knowledge on political radicalism; in this, they have strongly influenced the normative judgments of political authorities on the regulation of right-wing radicalism. In sum, the institutional setting is central to understanding how responses to right-wing radicalism are framed. Examining the role of the institutional setting and the actors’ interests also allowed me to bring to light the specificity of actors from the Offices for the Protection of the Constitution in Germany, who consider themselves as the main producers of theoretical and empirical knowledge on rightwing radicalism in the policy-making process. Finally, analysing the interests of security actors helped identify their positioning towards other policy-makers: this confirmed that police forces first and foremost consider themselves as repressive actors. Again, the actors from the Offices for the Protection of the Constitution claim their authority in the production of preventive measures, thus positioning themselves as competitors of non-state actors.

Frame(s) of justice(s) In this section I explore the perceptions of judges involved in the repression of right-wing radicalism. Both French and German legal systems have separate administrative and criminal justice. Therefore, these two types of actors will be analysed separately. On the one hand, administrative justice decides on the legality of administrative decisions such as demonstration or association bans.9 On the other hand, criminal justice rules on offences contained in the Penal Code (Code Pénal in France and Strafgesetzbuch in Germany), such as hate speech or violence against persons or goods with right-wing motives. Among actors of the criminal justice, interviews were conducted with prosecutors. I chose prosecutors for a pragmatic reason: they both represent the state during trials and enforce the penal policy. Regarding the administrative justice, judges from higher regional administrative courts were interviewed in Germany, as there is no administrative prosecutor. In France both rapporteurs (commissioners of the law) and judges10 from the Conseil d’Etat, the highest administrative court, were encountered. Administrative justice In both countries, administrative justice rules on the relations between citizens and state institutions. Administrative justice contributes to the development of a liberal order conciliating the protection of individual rights and the prerogatives of the state in order to maintain civil peace and to ensure general interest (Lochak, 2007). In interviews conducted with German administrative judges, it appears that cases with a right-wing background are not perceived as specific matters. An administrative judge from the Berlin-Brandenburg jurisdiction illustrates this assertion: [Question] How do you perceive this phenomenon  – right-wing radicalism or right-wing extremism? When this case landed on your table [an association’s ban], how did you work on the case?

138  Actors responding to the radical right Well, like any other case that we would have received. We must work cases with a clear head. We look at previous cases. . . . With the other judges, we prepare the hearings, we discuss the case during the oral proceedings, and then we prepare a decision with the other judges and eventually make a decision. . . . Our mission is to examine the specific circumstances of the case, and to see whether the conditions laid down by the law for a proscription are met. This excerpt is in line with sociological literature highlighting that German judges tend to value judgments that first and foremost focus on the facts present in the documents sent by the administration and by the defence as well as in the debates during the hearings (Lautmann, 1972). Whilst emphasising the standardisation of legal proceedings after being asked about the perception of right-wing radicalism, the respondent sought to produce evidence that his possible personal judgment on right-wing radicalism has not played a role in the decision-making process. In fact, decision-making of German administrative judges relies on three elements. First, jurisprudence from the Constitutional Court is central and orients judges. The same respondent explains: “the ban on associations is a delicate matter because constitutional judges have set very high standards [to be able to proscribe] and we were often met with incomprehension”. This means that administrative judges are constrained by rather permissive jurisprudence of the Constitutional Court when it comes to demonstration or association bans, which make it challenging to proscribe radical right-wing groups and their activities. Second, and unsurprisingly, administrative judges mostly rule on ban decisions that are perceived as unproblematic: “the associations that are being proscribed by governments  .  .  . these are mostly really clear cases where the state authorities come and say, we ban your organisation”. This suggests that actors from the executive only proscribe a demonstration or ban a group when they are confident that the administrative court will not repeal their decision (more details in Chapter 6). In this context, judges’ decisions are impacted by the documents produced by security authorities (interceptions of communication, monitoring reports, documents and objects from house search, and so on). Here again, police knowledge, and more generally the anti-extremist frame identified in previous chapters, orients judges’ perceptions of radical right-wing groups. Third, knowledge produced by civil society actors has been integrated in the evaluation of judges and eventually help them to form a decision: In the ruling, we listed 2–3 references. All of them are public. It is common to look for public sources, that is what we did here as well. . . . In this case, for instance, we used the research of a journalist. . . . It was a very well-informed work, which was very interesting for us to have preliminary considerations. It does not mean that we blindly follow what they say. But it was really helpful, because we could better reflect on our findings and sort them out. Due to the judicialisation of cases involving right-wing radicalism, large jurisprudence exists. Consequently, administrative judges frame right-wing radicalism

Actors responding to the radical right  139 according to the legal framework. However, knowledge produced by both security authorities and non-state actors shape judges’ perceptions of cases. Because of this, it is challenging to identify the expression of any personal judgment or interest in the discourse of German judges. The institutional setting and its rules have been overdetermining in the shaping of their policy frame. In France, judges who rule on cases involving right-wing radicalism initially distanced themselves from the concept of “right-wing radicalism” during interviews. For instance, the president of the litigation section of the Conseil d’Etat (CE) argued: Actually, we [administrative judges] do not put political labels on our cases. So, I cannot really say that we had cases involving political ideologies. . . . If you look in the Lebon volumes11 you will not find anything about the extreme right in the index. This statement is quite surprising, as a significant part of the administrative decisions repressing the radical right are built on an anti-fascist legal framework, as evidenced in Chapter 3. Instead, judges brought up legal arguments to explain how they dealt with cases involving the radical right. A judge from the CE seconded to the Ministry of the Interior when the interview took place, who has contributed to the proscription of right-wing extremist associations, asserted that the ban is a “legal tool with high standards because it is a strong limit to a constitutional right, the freedom of speech” and subsequently listed nine legal reasons allowing proscription (further details in Art. L212–1 of the Code for Internal Security). As shown in the German case, French administrative judges, when asked about their perceptions on the ban on radical right-wing groups or demonstrations, also spontaneously make sense of the situation by invoking legal means. Moreover, another judge who is the chairman of a chamber in the CE, underlines that traditional decision-making on these cases is based on a written and sometimes long procedure where the decision is taken collegially, allowing the judges to make “good decisions”. For instance, CE Vice-President’s interview for Le Monde12 following the one-man show of a radical right-wing artist with anti-Semitic opinions (see Chapter 6) illustrates how administrative judges put forth the fact that they embed their decisions in traditional jurisprudence when handling political matters: The Conseil d’Etat has made a decision based on jurisprudence, especially the “Commune de Morsang sur Orge” (1995) and “Benjamin” (1933) decisions were decisive. The court has been confronted with an unprecedented situation with this one-man show. Judges had to articulate the freedom of speech and its limits that are necessary in democratic societies. [Journalist] What do you mean by “an unprecedented situation”? The Conseil d’Etat has never been confronted with cases presenting similar characteristics that justify the ban on the show. In particular, the question of whether repeated incitements to racial hatred degrading human dignity can be prevented was raised for the first time.

140  Actors responding to the radical right Legal reasoning dominates in this public interview. Yet, the data collected suggest that not only legal arguments shape how judges perceive the radical right. The interview situation has indeed led respondents to express personal judgments concerning the outcome of the case previously mentioned involving a one-man show with an anti-Semitic stance. For instance, a commissioner of the law asserts that there have been liberal positions represented within the CE. Taking himself as an example, the respondent argues that “repressing” the expression of radical ideas is mostly “a sign of weakness”, thus conveying a personal, liberal stance towards hate speech. Another judge, the president of the litigation section of the CE voices a more repressive perspective: Honestly, I did not have many doubts because there were statements inciting hatred [in the one-man show]. I  am absolutely convinced that these statements . . . may have a significant impact, I think that he [the comedian] is a real threat to public order and to human dignity. When a third decision of the CE finally allowed the new one-man show of the same comedian to take place, the commissioner of the law recounts that some judges were relieved because the decision evidenced that “there indeed [were] different possible legal interpretations” in a similar case involving the same comedian. These excerpts reflect the variety of normative judgments amongst judges regarding the repression of hate speech despite their common institutional background. Some share a permissive frame, whereas others defend more repressive stances. This diversity of perceptions is endorsed by the commissioner of the law who underlines the constant concern of the CE to make balanced decisions. In the course of the interview, the commissioner of the law eventually pointed out that the “rise of the extreme right” had been in the background of several cases, mostly cases regarding the principle of public secularism (laïcité) or immigration. The respondent further insists on the importance of paying attention to the reactions of public opinion and of trying to make decisions that will not “jolt right-leaning folks” by systematically favouring “minorities”. These statements confirm that administrative judges expect their decisions to be balanced in order to be accepted by the population, which is in strong contrast with the German case. This conception of their work bears significant consequences: as the respondent notes that right-wing radicalism is widespread in French society, he also assumes that it is a legitimate political ideology. Following this logic, when administrative judges make a decision, they take into account the various political demands in French society. Indeed, the respondent finally argues that the decisions made by the CE reflect the conception that judges have of the society in which they live, which is in line with Latour’s conclusions (2010, p. 263) when he explains that “saying the law” involves being part of the rest of the social world and that “it would be pointless to think of law as entirely autonomous”. In sum, the conceptualisation of right-wing radicalism has been carefully avoided by judges in their daily practices, which is in accordance with the German case. However, this does not mean that judges turn a blind eye to right-wing radicalism

Actors responding to the radical right  141 and its growing popularity in France. This section indeed suggested that political demands are taken into account by judges whose frame is characterised by both permissive and repressive views, and most importantly, by the necessity of a balance between these two views. I find that this balance is reached through the existence of various personal judgments among administrative judges, reflecting the variety of public opinions. In conclusion, Germany displays a case marked by the historical repression of political radicalism, leaving the personal opinions of judges aside. The institutional setting largely explains the policy frame of administrative judges, which is strongly impacted by permissive constitutional jurisprudence when it comes to the proscription of demonstrations or associations. Contrarily, the frame of French administrative judges is characterised by the attempt to find a balance between repressive and permissive decisions. Yet, in both cases the legal framework primarily explains how actors make sense of cases involving right-wing radicalism, and the perceptions of administrative judges are impacted by various sources of knowledge (security authorities, civil society) that they use in order to make a decision that will eventually regulate right-wing radicalism. Criminal justice Racism and anti-Semitism on the agenda in France I indicated in previous chapters that several legal traditions have been drawn from to repress the radical right. The anti-racist frame and the legal dispositions maintaining law and order have been used by the criminal justice system to rule on cases involving radical right-wing individuals. Therefore, it comes as no surprise that magistrates have not framed the radical right as such. A French respondent, a former anti-terrorist prosecutor with a senior position among the administration of the Ministry of Justice, asserts that there has been no policy against the ultra-right because these movements have not been trying to “terrorise the population”. According to him, “violence” carried out by the “ultra-right resembles any other type of violence”. Interestingly, the respondent employed the vocabulary used by the actors from the security authorities, which can likely be explained by the increasing number of criminal cases in recent years leading to closer contact between prosecutors and police on judiciary cases (Jobard and de Maillard, 2015). This example suggests that perceptions circulate between institutions. In addition, the prosecutor compares right-wing violence with other types of violence, thus denying this type of violence any specificity, which is particularly striking when compared to the German case wherein political violence holds a specific status. Yet, this is in line with a legal framework that does not consider that violence might be politically motivated. Offences committed by the ultra-right are not quantified, given that they fall under other criminal offences, mostly aggravated violence. In sum, criminal magistrates have not perceived right-wing radicalism per se because the concept does not appear in the Penal Code. In practice, the radical right has been

142  Actors responding to the radical right perceived both through the spectrum of the repression of common violence and through that of the repression of aggravated violence (for instance, when there is a racist or homophobic motive). Moreover, the French system is characterised by the specialisation of certain magistrates that only deal with cases that fall under the Press Law. They are grouped in the so-called Section for Press and the Protection of Fundamental Freedoms. As underlined in Chapter 3, the Press Law is thought of as protection for individual rights, and mostly the protection of the freedom of speech. Through this lens, it is interesting to see how prosecutors from that section have perceived hate speech: The section is involved in the struggle against racism because we enforce the Press Law. . . . There is no political dimension in justice. What really interests us is to know whether statements are racist or anti-Semitic. Of course, there are much more racist or anti-Semitic comments among the radical right than anywhere else. . . . But that’s not political, we stick to the legal dispositions repressing the words used. The respondent, a prosecutor in the Section for Press and the Protection of Fundamental Freedoms, understands right-wing radicalism as part of politics and not as a matter that could affect how the judiciary operates. The radical right is therefore perceived through the lens of the anti-racist legal framework and as administrative judges, criminal prosecutors carefully avoid framing cases as political ones. When asked how the magistrates refer to and define right-wing radicalism, the respondent answers that the magistrates “simply do not refer to it”. Although right-wing radicalism is indirectly addressed and effectively repressed, it has not been identified as an issue and has subsequently not been named. Finally, the principles of the Press Law which protect the freedom of speech have come in tension with the struggle against racism. The decisions made by prosecutors from the Section for Press and the Protection of Fundamental Freedoms exacerbate a fundamental dilemma for liberal democracies: how can we balance the core values of preserving freedom while limiting the harmful effects of racism (Bleich, 2011, p. 3)? Since magistrates from this section have been permanently dealing with this dilemma, it is enlightening to explore how they have forged their frame. The same prosecutor explains: The Press Law has one goal: to protect freedom of speech. Unlike the rest of Criminal Law, which is repressive, it’s a law that protects a series of principles of freedom and sets a few limits for which offenders generally won’t be very severely punished. The incitement to racial hatred, it’s one year, for racial insults it is the same  – no, 6 months. In fact, these offences are not severely punished. At least, there are no ancillary penalties. . . . It’s difficult to tell yourself that you send people to jail for speech offences. I guess it’s part of French culture – actually there are hardly any mandatory sentences [for these offences].

Actors responding to the radical right  143 The respondent underlines what she perceives as a French peculiarity, the reluctance to be punitive on hate speech. I argue that this excerpt also is an illustration of the specific position of magistrates from the Section for the Press within the French judicial system. This becomes more visible when the same respondent opposes the decision to remove the incitement to terrorism from the Press Law: We have just seen that last week [November 2014] the incitement to terrorism was removed from the Press Law. Personally, I was opposed to this move. We wrote a memo because the prosecution department was heard by the committee in Parliament. . . . Now, I wonder whether we won’t be told one day, “Why would the incitement to racial hatred or homophobia be less serious [than the incitement to terrorism]?” What’s sure for now is that it’s never been planned to remove these offences from the Press Law. But there have been procedural developments responsible for the softening of the procedure regarding hate speech, thus getting the procedure closer to ordinary Criminal Law. The respondent expresses a normative judgment connected to her institutional belonging: the repression of hate speech shall continue to be governed by the Press Law. Her policy frame is marked by two elements. First, she has not conceptualised the radical right as such and has adopted an anti-racist frame to repress cases that would be considered right-wing motivated in Germany. Second, the specialisation of hate speech prosecution in France has led prosecutors from the Section for the Press to develop specific perceptions and to defend the specificity of their department which represses insult, defamation, incitement to hatred, and the denial of crimes against humanity and protects the freedom of speech. Right-wing radicalism on the agenda in Germany In the German case, right-wing radicalism is treated as a policy issue. For this reason, it can be expected that criminal justice actors have clearly framed this phenomenon. In Brandenburg, the programme against right-wing radicalism, Tolerantes Brandenburg, has encompassed measures for the justice department: the objective given was to prosecute “effectively” and “punish rigorously” cases with a right-wing motive (Landesregierung Brandenburg, 2013, p.  52). In 2015, the incumbent general prosecutor in Brandenburg explained: I had already started investigating the issue [of right-wing extremism] in December  1993 when I  arrived in Neuruppin as prosecutor. There are the former concentration camps Sachsenhausen and Ravensbrück in the jurisdiction. There were also incidents in this area. For me, it was extremely important that these right-wing motivated deeds were prosecuted. And I have put much effort into structuring a prosecution strategy. This excerpt illustrates the involvement of a prosecutor in the repression of right-wing radicalism, prior to the introduction of the programme Tolerantes

144  Actors responding to the radical right Brandenburg. The respondent became familiar with right-wing extremism because of the salience of the issue in his jurisdiction. Since the German constitutional framework has targeted political extremism, the respondent could set up a prosecution strategy addressing right-wing extremism directly and started by listing right-wing offenders in order to closely monitor the profiles of offenders and their changes. When he became general prosecutor in Brandenburg in 1996, he expanded the repressive strategy against right-wing extremism statewide, a move that would later prove that even a resolute repressive strategy was not sufficient to contain the phenomenon. With intensification of prosecution, the respondent nevertheless advocated for more repression and the hardening of sanctions. The underlying rationale of this strategy was, in line with Luhmann’s argument (1969), that procedures can achieve legitimation. From a comparative perspective, it is instructive to see how German prosecutors have perceived hate speech on the one hand and violent offences with a right-wing motive on the other hand. Each prosecution department has a section in charge of instituting infringement proceedings related to cases with a political motive. This section takes all cases with a right-wing motive whether it involves hate speech or racist violence. Only terrorist cases are the prerogative of the Federal Prosecutor. In this institutional context, it is necessary to find out whether prosecutors have strictly distinguished these offences or not. The General Prosecutor in Brandenburg expresses his opinion regarding hate speech: There are the so-called propaganda delicts, if somewhere you find texts with punishable contents. . . . In my list, I don’t have these offenders because violent acts were more important to me. So, the list does not provide a whole picture of the problem posed by right-wing extremism but just a part of it, which is of particular importance. [Question] Does it reflect German jurisprudence? Of course, because physical integrity is a legally protected right, it is under special protection. Contrarily, the protection of human dignity occurs through the repression of the freedom of speech.  .  .  . Even if in Germany, when it comes to the limits of speech, we handle differently than the Anglo-Saxon countries. Sometimes, it’s not understood at all. But it’s linked to German special history. Propaganda delicts in Germany correspond to the offences repressed by the Section for Press and the Protection of Fundamental Freedoms in France. In line with French prosecutors, the respondent underlines that propaganda offences should be distinguished from violent acts with right-wing motives and should be punished less severely, even if he rightfully recalls that countries such as the United States have been much more permissive towards hate speech (Bleich, 2011). The excerpt reveals a position towards right-wing radicalism which is much more punitive than the position expressed by administrative judges in the previous section. This suggests that German justice actors might have permissive views when it comes to administrative police due to constitutional jurisprudence that strongly protects the freedom to

Actors responding to the radical right  145 demonstrate and the freedom of association and have much more repressive opinions in cases involving politically motivated violence and to a lesser extent hate speech. In addition, the General Prosecutor of Brandenburg was forced to recognise the limits of his actions as a magistrate and more generally the limits of repression: “In June 1996, I gave an interview and said, ‘Repression does not bring us forward’ ”. The respondent openly criticised the poor impact of the criminal justice on the expansion of right-wing radicalism. Later in the interview he outlined the importance of prevention and the involvement of civil society actors in framing the issue as a societal problem. His biography teaches us that he extended the scope of his responses against right-wing radicalism by privately being active in an NGO promoting preventive measures. It might of course be objected that the personal involvement of the prosecutor of Brandenburg is an exception. It is true that few prosecutors have committed so intensively (or so early on) to the prevention of right-wing radicalism. However, governments in the German Länder under study have surely expected prosecutors to be committed to responding to right-wing radicalism. An example is found in North-Rhine Westphalia where right-wing radicalism officially became a top-priority policy issue in 2012 when the Minister of the Interior delivered an eight-point programme against the radical right. In this context, newly nominated prosecutors were expected to engage in repressing right-wing radicalism. In this regard, the incumbent Minister of Justice emphasised in 2015 the importance of the new general prosecutor’s involvement against right-wing radicalism for his appointment in Düsseldorf: You have been sensible to politically motivated criminality for years. You still pay much attention to this work area. I want to say a few words on the project “Hellwach gegen Rechtsextremismus” [Wide Awake Against RightWing Extremism] that you largely initiated with the chief of police in Wuppertal in 2013 in order to effectively prosecute politically motivated offences. You also accompany demonstrations and other major events in your jurisdiction, instantaneously, often from the police operation centre. (Kutschaty, 13/03/2015) Underlining in an official discourse the action of the new general prosecutor against right-wing radicalism, which involves cooperation with non-state actors, is not only a political move in a country where struggle against right-wing radicalism has become a salient issue: it is also a sign that the repression of right-wing radicalism is morally valued by political authorities and has consequently become an important part of the general prosecution strategy. In sum, criminal prosecutors are marked by punitive views, which can be explained by the increasing repression of violence with a right-wing (in Germany) or racist (in France) motive. However, the frame developed by criminal prosecutors in Germany possesses the limits of a merely repressive approach. German magistrates are influenced by the institutional setting where political extremism is targeted and perceive the necessity of integrating preventive measures into the policy against right-wing radicalism, a perspective which is absent in interviews

146  Actors responding to the radical right conducted with French magistrates. French criminal prosecutors have developed a different perspective, which is also influenced by the institutional setting, oscillating between repression of racist violence or hate speech and protection of the freedom of speech, which is visible in the Press Section. In conclusion, the different legal frameworks identified in Germany and France (Chapter  3), one insisting on the danger of extremism and the other apparently ignoring it, have impacted how judges perceive right-wing radicalism: whereas German actors openly addressed politically motivated criminality during the interviews, French actors rather discussed how they handle cases involving racism or violence. Additionally, French administrative judges appeared to oscillate between permissiveness and repression, whereas their German counterparts showed more permissiveness due to jurisprudence. Despite all that, I argue that these actors share comparable frames. Judges, as a collective actor, have a frame characterised by a balancing of permissiveness and repression. For the identification of policy frames, exploring the impact of the institutional setting on normative judgments was decisive. More than any other actor, magistrates seem to take into account practices and knowledge produced by other state and non-state actors, as seen in the case of German general prosecutors who work with state and non-state actors and French administrative judges who seek to make decisions that represent French society.

Concluding remarks In this chapter, I explored how state and non-state actors have perceived right-wing radicalism and the appropriate responses to formulate against this phenomenon. I outlined the diversity of actors intervening and showed that policy actors were not an aggregate actor but actors with different policy frames as illustrated by Table 4.3. In order to identify these frames, I examined the influence of the institutional setting, the interests of policy-makers, and their normative judgments. Through the exploration of daily practices, I  emphasised the intertwining of the institutional setting with interests and normative judgments for explaining the policy frames. I first showed that there exists a large variety of normative judgments among actors from German NGOs who have developed different solutions to counter right-wing radicalism. In doing so, German non-state actors eventually came to produce innovative knowledge and became indispensable policy players. In contrast, few established and sustainable French NGOs are recognised policy actors addressing the radical right. Therefore, less knowledge is produced by non-state actors that can be injected into policy-making. But when scrutinising the interests of these non-state actors in France and Germany, I have shown that all of them advocate for the importance of carrying out preventive measures and defend their position as indispensable policy-makers in the responses to political radicalism. As for state actors without repressive powers, their normative judgments influence their policy frames regarding responses to right-wing radicalism. These judgments are based on traditional state practices produced by other state actors (e.g. focus on antiracism in France other anti-extremist frame leading to temporary

Actors responding to the radical right  147 Table 4.3  Results Policy frames

Actors FR

Repressive

– Actors from the police – Actors from the criminal police (including intelligence service) * production of state knowledge * production of state knowledge – Actors from the intelligence service * production of state knowledge

Prevention – Actors from state institutions: and CNCDH, DILCRAH cooperation * production of alternative with civil knowledge society – Non-state actors * production of alternative knowledge Permissive/ repressive *synthesis of knowledge

DE

– Actors from the Ministry for Family Affairs – Non-state actors * production of alternative knowledge – Actors from the intelligence service (partly) – Prosecutors from the criminal justice system (partly)

– Actors from the administrative – Judges from the administrative justice system justice system – Actors from the criminal – Actors from the criminal justice justice system system – Actors from the Press Section

exclusion of left-wing radical initiatives struggling against right-wing radicalism in Germany). Their policy frame arises out of political constructions; thus, politics play an overriding role in the formation of these actors’ frame: the orientations of these actors depend on the political orientations of the government, especially in France. This exposure to politics may endanger their survival as an institution. As a consequence, these actors advocate for the indispensable character of preventive measures and for their cooperation with non-state actors, from whose knowledge they benefit. In doing so, they defend their interests and claim their legitimacy alongside dominant policy-makers such as security authorities. Security actors, unsurprisingly, perceive themselves as state actors in charge of repressing political radicalism in both countries. They have historically produced state knowledge on right-wing radicalism thanks to their strong position on the field, and political authorities still largely rely on their insights, especially in France, to form their judgments. The analysis of the actors’ interests highlighted a difference between security actors: police officers perceive themselves as repressive actors  – seeking to solve criminal cases  – who are not interested in being identified as actors with preventive prerogatives, while actors from the Offices for the Protection of the Constitution in Germany claim their legitimacy in the production of preventive measures and background knowledge, and they therefore position themselves as competitors of non-state actors.

148  Actors responding to the radical right Finally, actors of the administrative justice insist on the importance of law and jurisprudence, and of a thoughtful balance between different fundamental rights in order to make a decision. In contrast, criminal prosecutors are marked by repression in both countries. An exception is found among magistrates from the Section for the Press and the Protection of Fundamental Freedoms in France who deal with hate speech and insist on freedom of speech, and therefore are less punitive against the radical right. Finally, German criminal prosecutors have recognised the limits of a repressive approach and have emphasised the importance of involving civil society in policy strategies to counter the radical right. In the analysis, I outlined the importance of non-state and state actors as knowledge producers who contribute to the orientations of the policy regulating rightwing radicalism. In fact, two types of knowledge are produced at the same time in each country case: historical knowledge built by security actors and recent knowledge produced by non-state actors mobilised against the radical right. As I explored the perceptions of magistrates, I could pinpoint that these actors sought to make a synthesis between different sources of knowledge. Interests are important in identifying the policy frame of all categories except magistrates. Interests are mostly expressed as the will to change the institutional setting: actors with a preventive frame are inclined to gain a higher position within the institutional setting, and eventually in policy-making more broadly. In contrast, repressive actors intend to defend their dominant position in the institutional setting as traditional policy-makers and main producers of official knowledge. Moreover, actors were scrutinised as part of institutions, which makes the institutional setting (or system of rules) a central element that cannot completely be objectified. Nevertheless, the weight of the institutional setting on perceptions is different from one category of actors to the other: among magistrates, for whom jurisprudence and the legal framework is a landmark that helps to make sense of cases involving right-wing radicalism, the institutional setting is overdetermining. Among other actors, the institutional setting is always a factor on which policy actors want to exert their influence in order to change or keep the established rules. The institutional setting is both a factor impacting frames and a factor on which actors want to exert influence. In many places it has been difficult to clearly distinguish the impact of these three factors  – interests, normative judgments, and institutional setting – which are closely intertwined. This underlines the relevance of “policy frame” as a concept: frames allow one to map a complex mix of interests and personal beliefs among policy actors that are at the centre of an ever-evolving institutional setting. Most importantly, frames allowed me to demonstrate similarities between France and Germany despite these two countries’ different historical trajectories. Finally, this chapter outlined the importance of knowledge production, which is often biased by the interests and judgments of the actors producing it, but it can be argued that the more policy actors producing knowledge are heard by political actors, the more diverse the policy against rightwing radicalism will be. In order to strengthen this argument, the next chapter will question the mechanisms intervening during the formulation and the implementation of measures against the radical right.

Actors responding to the radical right  149

Notes 1 In Chapter  3, I  presented the non-governmental organisations delivering preventive responses against the radical right. Whilst the German case is characterised by the great variety of non-state actors involved in policy-making, the preventive policy against right-wing radicalism in France relies on a more limited number of non-state actors. The interviews conducted in Germany showed that not only was the diversity of preventive actions remarkable, but so was the variety of methods deployed against the radical right. This is why I will elaborate more extensively on the German case than on the French case in this section. 2 Interviews were conducted in French or German. Original excerpts were translated into English for the purpose of this book. 3 The funding of these NGOs has been highly problematic in the last decade as they have only been funded on a project basis (i.e. over the short term). Finished projects cannot be renewed (even if successful) unless a new application is submitted and contains substantial innovations. Therefore, the news has regularly reported on organisations at risk of losing their financial public support. For instance, the umbrella organisations in charge of managing the organisation of local associations helping victims of rightwing violence as well as exit initiatives in Germany learned in July  2019 that they could not be supported any longer by the federal state. Structures that have contributed to the professionalisation of the third sector in the enforcement of programmes against right-wing radicalism have been hit especially hard. The reason is the legal impossibility of structural funding in opposition to project funding, which is in line with the new public management reforms introduced in Germany in the 1990s. However, the difficulties caused on the field are real and acknowledged by state actors. The reform of these rules has been discussed since 2014 but has not yet been reviewed. 4 Insiders are “a group who is ascribed legitimate status by government and is accordingly involved in meaningful consultation on a regular basis” (Maloney, Grant and McLaughlin, 1994, p. 18). 5 Outsiders are a “group who is unable to achieve such a favorable status position and does not become engaged in consultation processes” (Ibid.). 6 This organisation does not receive funding from the French state and is mostly funded by private donations. However, the European Commission and the Foundation Open Society have subsidised the CCIF. 7 Le Parti des Indigènes de la République is a controversial anti-racist movement that has “encouraged anti-democratic and essentialising tendencies” (Zobel, 2010). 8 These last three political actors are famous in France for having used racist language even though they are/were members of mainstream political parties. 9 In Germany an exception is the party ban, which is decided by the Federal Constitutional Court. 10 In the French Conseil d’Etat, “judges” are actually executive civil servants and do not enjoy the same independent status as criminal judges. In practice, however, judges from the Conseil d’Etat have not been dismissed by political actors. 11 Recueil Lebon is a compendium summarising the most significant decisions made by administrative justice. 12 Le Monde (11/01/2014).

References Bleich, E. (2011). The Freedom to be a Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism. Oxford: Oxford University Press. Bleich, E. (2003). Race Politics in Britain and France: Ideas and Policymaking since the 1960s. Cambridge: Cambridge University Press.

150  Actors responding to the radical right Bleich, E. and Hart, R. (2008). Quantifying Hate: The Evolutions of German Approaches to Measuring ‘Hate Crime’. German Politics, 17(1), pp. 63–80. Brodeur, J.P. (2003). Les visages de la police. Pratiques et perceptions. Montréal: Les Presses de l’Université de Montréal. Brodeur, J.P. (1983). High Policing and Low Policing: Remarks about the Policing of Political Activities. Social Problems, 30, pp. 507–520. Decree of 8th December 2003 Creating the Interdepartmental Committee Struggling Against Racism, Anti-Semitism and Hatred Against Lesbian, Gay, Bi and Trans Persons (France). Dufresne, D. (2012). Tarnac, magasin général. Paris: Calmann-Lévy. Green, S. and Paterson, W.E. (eds.) (2005). Governance in Contemporary Germany. Cambridge: Cambridge University Press. Grumke, T. and van Hüllen, R. (2016). Der Verfassungsschutz: Grundlagen. Gegenwart. Perspektiven? Opladen: Barbara Burdich Verlag. Hajjat, A. and Mohammed, M. (2016). Islamophobie, comment les élites françaises fabriquent le ‘problème musulman’. Paris: La Découverte. Jobard, F. and de Maillard, J. (2015). Sociologie de la police. Paris: Armand Colin. Katzenstein, P. (1987). Policy and Politics in West Germany: The Growth of a Semi-­ sovereign State. Philadelphia: Temple University Press. Kutschaty, T. (13/03/2015). Grußwort vom Justizminister Thomas Kutschaty anlässlich der Ernennung des neuen Generalstaatsanwalts Emil Brachthäuser. Düsseldorf: Pressestelle des Justizministeriums. Landesregierung Brandenburg (2013). Umsetzung des Handlungskonzepts ‘Tolerantes Brandenburg’ der Landesregierung. 4. Bericht der Landesregierung. Potsdam: Landesregierung. Latour, B. (2010). The Making of Law: An Ethnography of the Conseil d’Etat. Cambridge: Polity Press. Lautmann, R. (1972). Justiz – die stille Gewalt: Teilnehmende Beobachtung und Entscheidungssoziologische Analyse. Königstein im Taunus: Athenäum. Le Monde (11/01/2014). Affaire Dieudonné: le Conseil d’Etat réplique aux critiques. Press Article. Lochak, D. (2007). Le Conseil d’Etat en politique. Pouvoirs, 123, pp. 19–32. Luhmann, N. (1969). Legitimation durch Verfahren. Frankfurt am Main: Surhkamp. Maloney, W., Grant, J. and McLaughlin, A. (1994). Interest Groups and Public Policy: The Insider/Outsider Model Revisited. Journal of Public Policy, 14(1), pp. 17–38. Manning, P. (2008). Haute et basse police selon Jean-Paul Brodeur. Penal Field, 9. URL: http://champpenal.revues.org/8278, last accessed on 29.09.2019. Mayer, N., Michelat, G., Tiberj, V and Vitale, T. (2016). Le regard des chercheurs sur les différentes formes de préjugés. In: CNCDH (ed.), La lutte contre le racisme, l’antisémitisme et la xénophobie. Paris: La Documentation Française, pp. 281–366. Minkenberg, M. (2017). Repression gegen Rechtsradikalismus und Rechte Gewalt: Strategien und Wirkungen. In: C. Kopke and W. Kühnel (eds.), Demokratie, Freiheit und Sicherheit. Baden-Baden: Nomos, pp. 183–200. Palier, B. and Surel, Y. (2005). Les ‘trois I’ et l’analyse de l’Etat en action. Revue Française de Science Politique, 55(1), pp. 7–32. Pedahzur, A. (2002). The Israeli Response to Jewish Extremism and Violence. Manchester: Manchester University Press. Pedahzur, A. (2001). Struggling with the Challenges of Right-Wing Extremism and Terrorism within Democratic Boundaries: A Comparative Analysis. Studies in Conflict and Terrorism, 24(5), pp. 339–359.

Actors responding to the radical right  151 Pirotte, G. (2007). La notion de société civile. Paris: La Découverte. Quent, M. and Schulz, P. (2015). Rechtsextremismus in lokalen Kontexten: vier vergleichende Fallstudien. Wiesbaden: VS Springer. Rhodes, R.A.W. (2000). Transforming British Government. Basingstoke: Palgrave Macmillan. Rhodes, R.A.W. (1998). Beyond Westminster and Whitehall: The Sub-central Government of Britain. London: Routledge. Savage, S. (2007). Police Reform. Forces for Change. Oxford: Oxford University Press. Scharpf, F. (1997). Games Real Actors Play: Actor-Centered Institutionalism in Policy Research. Boulder: Westview Press. Sèze, R. (2019). Prévenir la violence djihadiste. Les paradoxes d’un modèle sécuritaire. Paris: Seuil. Wagner, B., Wichmann, F. and Borstel, D. (2013). Familienberatung und Deradikalisierung: Ausstiegsorientierung im familiären und sozialräumlichen Beratungskontext. Journal EXIT-Deutschland Zeitschrift für Deradikalisierung und demokratische Kultur, 1, pp. 108–153. Zobel, C. (2010). The ‘Indigènes de la République’ and Political Mobilization Strategies in Postcolonial France. e-cadernos ces, 7. URL: http://eces.revues.org/390, last accessed on 29.09.2019.

5 The decision-making process of policy responses to the radical right

The previous chapter outlined the different frames among policy-makers in France and Germany. I will now define how these frames are articulated and contribute to the making of policy decisions. In order to do so, I  assess the influence of the various policy-makers with different frames in the outcome of measures against right-wing radicalism. In accordance with Scharpf’s model (1997), great attention will be paid to the interactions occurring between actors with different frames along the policy process. I posit that the nature of these interactions largely explains the policy outcomes (see Chapter 1). The French-German comparison intends to examine the conditions for decisionmaking and will allow me to answer the following questions: under which conditions do actors make decisions about the regulation of the radical right? Who does really govern? What difference does it make to compare a country case in which political radicalism is defined as a policy matter and another country case in which this is not so? In this chapter, I  introduce a new category of actors in the analysis and examine the involvement of political actors in policy measures against right-wing radicalism. Actors from the political arena have specific interests, amongst which is to stay in power. They orientate policies that are based on their democratic authority to take action, so it can legitimately be supposed that they have developed different policy frames than other state actors. This chapter is about depicting the influence of political actors on other policy-makers regarding measures against rightwing radicalism and vice-versa. In sum, the dynamics taking place within the constellation of policy-makers will be analysed in order to assess how frames have resisted or surrendered to the influence of other frames. This analysis is not so much about the implementation process as about the role of interactions of ideas in decision-making. In the first instance, I  will scrutinise decisionmaking among actors with a (mostly) repressive policy frame and explain how interactions between different actors influence the policy outcome. In a second phase, I  will focus on actors with a preventive frame and explore the dynamics supporting the thesis of an expansion of preventive measures against right-wing radicalism.

Policy responses to the radical right  153

Decision-making among security authorities Policing of radical right-wing demonstrations The organisation of demonstrations in France, as in other European countries, has become a normalised practice, enshrined in the repertoire of actions (Fillieule, 2006). Demonstrating is now perceived by the police forces as a legitimate way of expressing political opinions in the context of West-European liberal democracies (for France, Fillieule and Jobard, 1998; for Germany, Della Porta, 1995). Therefore, the police have increasingly chosen cooperation rather than direct confrontation. Demonstrations are a central instrument of mobilisation for the radical right. Especially in the German case, demonstrations are a widely used instrument by radical right-wing groups (Virchow, 2011). In France, right-wing demonstrations are NOT as numerous as in Germany; however, they are ritualised, especially the yearly Front National demonstration on 1st May. This event has given right-wing radical demonstrations some visibility in France too. Consequently, it is fruitful to explore how state authorities make decisions concerning right-wing demonstrations. Given the large scope of this enterprise, it is not possible to scrutinise the entire process from the organisation of the demonstration to its aftermath. I narrowed the analysis to the early phase of the decision process: the organisation of the demonstration and, if relevant, the interdiction of the march. The aim is to highlight the mechanisms occurring during decision-making of French and German security authorities by first assessing the role that their repressive frame plays, and second by evaluating the influence of actors’ interactions with other categories of actors on the decisions that are eventually made. In doing so, the role of political actors will be thoroughly examined. France: an almost unaffected police frame The constellation of actors and the interactions taking place among the actors’ constellation are fundamental to explain their outcomes (Scharpf, 1997). As underlined by Fillieule and Jobard (1998), street demonstrations are part of a triangular game in which rules are prone to change during the course of the event. Three aggregate actors are identified: the police, the government, and the right-wing protesters. The challenge is to identify the influence of the interactions occurring between the police, the representative of the government (the prefect), and the right-wing movements on the outcome (i.e. the holding of the demonstration). In the French legal system, local authorities with police powers such as the prefect are entitled to ban demonstrations. Prefects are police chiefs who are both highly dependent on political authority and administrative civil servants (Tanguy, 2015) with a professional know-how, values, and personal interests. In short, prefects who ultimately decide on the proscription of demonstrations are political actors who also control the police administration. Prior to a demonstration, protest

154  Policy responses to the radical right organisers must register the march and give the police three days’ notice (Fillieule and Jobard, 1998), which gives the prefect the opportunity to ban the demonstration. However, there has been a gap between legal obligations and actual practice. In fact, except for the Paris region, prior notification about demonstrations remains unusual. This remark advocates for a further analysis of the actual practices of actors. There are three principles which rule protest policing. First, the police aim to prevent any unrest in order to avoid the use of force. Second, police intervention during a demonstration must be used sparingly and must not exacerbate the situation. Third, the police forces intend to control the situation at any moment, at all costs (Ibid.). With these principles in mind, police actors prepare the demonstration and involve the organisers in the planning phase. Not only do the police get in touch with the organisers to know their intentions and discuss details, but the intelligence service also produces a report providing a situation assessment. Usually, the police commander assumes that the demonstration will take place and discusses details with the organisers in order to reach a negotiated agreement. According to Scharpf (1997, p. 116), negotiated agreements are defined as a cooperative game whereby “rational actors will lead to voluntary agreements that will realise all potential welfare gains among the participants, provided that transaction costs are negligible, and that side payments or package deals are possible”. In the present case, police and organisers alike seek to realise welfare gains by organising a peaceable demonstration that does not require the use of force. In addition, the police commander, when receiving the organisers of the demonstration, seeks to make the demonstrators think that the restrictions are in their own interests and not merely requirements of law and order or political considerations. Organisers must always go away from the meeting with the feeling that negotiating helped in organising the march; police always act so that the organisers feel that they hold the main responsibility for the demonstration. The purpose of negotiating is to establish a climate of mutual confidence, with the organisers being persuaded that the police will respect their undertakings (Fillieule and Jobard, 1998). Drawing on these remarks, it is possible to infer that the police forces seek to reach an agreement without giving up on their policy frame, based on compliance with general rules of law and order. Internally, the police commander is expected to present a plan of action in compliance with the orders of the prefect. The worst-case scenario would be the ban of a demonstration, as the right to protest is well-enshrined in the French legal tradition. Moreover, the administrative jurisprudence shows that administrative jurisdictions, when they judge on the legality of a demonstration’s ban, do not assess whether the police had the means to maintain public order. The only consideration is the existence of a threat to public order. In this case, the policy frame of security authorities – focused on the prevention of any unrest – is decisive in explaining decision-making: if the chief of police finds that the technical requirements to ensure security are not fulfilled, this can be grounds for the prefect to ban a demonstration. Such was the case in Calais in 2016, when the prefect proscribed a radical right-wing demonstration after meetings with the organisers because the authorities found that the promise to prevent unrest expected from the organisers

Policy responses to the radical right  155 of the demonstration was not met (RFI, 01/10/2016). Besides the recommendations of the chief of police that influence the prefect’s decision, this actor also represents political interests and can ban demonstrations on the grounds of political interests. In short, the policing of demonstrations depends on the policy frame and the assessment of security authorities, but also on political authorities who may in some cases force a ban. Having briefly presented the procedure prior to a demonstration, I  will now examine whether the process leading to allowing or banning a demonstration differs when right-wing mobilisations are concerned. In an interview, a senior gendarmerie officer in the east of France mentions that the handling of right-wing radicalism mainly takes the form of policing gatherings and demonstrations. He then emphasises that the police rarely intervene because of public disruption: on the one hand, the police prevent disturbances by organising the demonstration carefully, and, on the other hand, there generally is a limited number of rightwing demonstrations, which contributes to better planning. An illustration of these assertions is found with the most symbolic demonstration of the FN which is organised on a yearly basis on 1st May in Paris.1 This gathering has been ritualised with a staging that is carefully defined in advance and marks a high point in the internal life of the FN. The aim of the former party leader Jean-Marie Le Pen was to transform a symbolical day, Labour Day, acquired by left-wing forces, into a patriotic day. In so doing, right-wing mobilisation on 1st May has become a rooted counterdemonstration to the left-wing marches. Despite a casualty during the 1995 march – Brahim Bouarram, a 29-year-old Moroccan, was thrown into the River Seine by a group of skinheads – the yearly FN demonstrations were never banned. How do security authorities handle these marches, gathering thousands (sometimes over 10,000) of demonstrators? The interview conducted with the former prefect of Paris, Philippe Massoni, during the Parliamentary Committee on the activities, the organisation, the functioning and the goals of the grouping DPS (security service of the FN, see Chapter 2) is used as material for the analysis: Regarding the staff of the DPS  .  .  . it appears that the Front National can count approximatively 950 volunteers who assume security missions within the DPS. . . . There are incidents from time to time, but these are not serious incidents. . . . In fact, most incidents are caused by the most extremist elements of the extreme right. . . . Of course, you all remember Brahim Bouarram, a young Moroccan who was brutally assaulted during the demonstration of the Front National on 1st May 1995. The perpetrators were arrested: these were skinheads. Let us note that they were regular collaborators of the DPS in the city of Reims, but they were not part of the security service. I also note that the manager of the DPS provided our criminal investigation department elements that helped the investigation. The DPS is not considered a threat by the Paris police: quite the contrary, this excerpt suggests that the DPS is regarded by the head of the Paris police as a reliable partner for the police in the organisation of demonstrations. As recalled

156  Policy responses to the radical right by Fillieule and Jobard (1998), the more the organisers are used to the practice of a demonstration, the more senior police officers find it pleasant to work with them. This example shows that having partners with whom the police can prepare a ritualised demonstration year after year is a factor encouraging the police not to favour repression towards right-wing marches. Another dominant aspect is underlined by a police officer specialised on intelligence matters in the East of France who argues that the police only intervene during demonstrations in order to maintain public order – stating that he would personally refuse to get involved during a demonstration of the Rassemblement National unless there were a risk that left-wing groups would be present and disturb the demonstration. Another respondent, the police chief from the same department lists the different options when “the extremes” get together during a demonstration: “the proscription of the demonstration by the prefect”, “the ban of some routes, which underlines the importance of having a tight connection to the organisers”, and “paying great attention to the maintenance of law and order during the demonstration because that is where the shoe pinches”. These statements suggest that public order is the main preoccupation of police officers and that the political component of right-wing radical demonstrations is deliberately ignored until different radical groups come together, because, in this moment, the political component is a source of tension and overlaps with public order. Only in this case do police officers feel they have the legitimacy to address the political dimension of the demonstration and to eventually intervene. In accordance with the policy frame of security authorities identified in Chapter 4, the main concern of these actors is to avoid unrests (even if that means using disproportional means) and remain out of potential political issues. When asked about the specificity of policing political groups, the police chief previously quoted distinguishes “political groups” from “clandestine groups”, referring to his experience in Corsica with the handling of nationalists. According to this respondent, political groups can be handled easily, whereas clandestine groups are by definition invisible and can only be apprehended with difficulty. This statement suggests that the real danger for the police regarding right-wing demonstrations is the invisible component. This is confirmed by an intelligence officer in the Paris region who underlines that during the “Manif pour Tous”, the difficulty lied in policing both “the good old Catholic” and other individuals participating in the demonstration who were “far nastier, ready to rumble”. Taken together, these statements suggest that there may be two types of radical rightwing demonstrations: legitimate ones that are well-organised and non-violent (the marches organised by the Manif pour Tous were never banned), and demonstrations likely to become violent and uncontrollable and whose marches are likely to be banned. For instance, the demonstrations planned by “Pegida France” in Calais in February 2016, which were composed of loose and ill-identified individuals in a region where the tensions with opponent groups was high, were eventually proscribed. In this regard, it is hardly surprising that other radical right-wing social movements such as the “Bloc Identitaire” have advocated for a resolute non-­ violent approach (Cahuzac and François, 2013) in order to ease their relationships

Policy responses to the radical right  157 with the police. Yet in some rare cases, local political actors (especially mayors) set the repression of non-violent radical right-wing movements on the political agenda under the pressure of civil mobilisation and eventually ban demonstrations: this occurred in 2007 when the incumbent Deputy Mayor of Paris, Bertrand Delanoë (Socialist Party), intervened to ban a distribution of pork soup for the homeless organised by the association SDF, Solidarité des Français, which intentionally excluded Muslims. The case took on national importance and the Conseil d’Etat eventually confirmed the ban, as the event was likely to generate turmoil in the public space and might harm the dignity of those excluded from this event (Conseil d’Etat, 05/01/2007). In short, two elements are essential for security actors when they police radical right-wing demonstrations: first, intervene in order to maintain law and order if the demonstration is allowed, or convince the prefect to ban the march for safety purposes; second, develop close and regular partnership with the organisers of the demonstration. In the light of the data collected, I argue that the police and political authorities rarely work together to regulate radical right-wing demonstrations, although political actors may directly intervene and then hijack the frame of police actors altogether. In terms of impact, the French radical right complies with the rules of the police and does not demonstrate often because it is structured around a hegemonic party with elected members. For these reasons, the policing of radical right-wing demonstrations is largely devolved to the police, whose policy frame is rarely challenged. Yet, political actors may intervene if the salience of radical right-wing demonstrations increases, especially in cases where civil society negatively reacts to radical right-wing demonstrations. Such cases imply that political authorities take back control of the policy-making process and repress the radical right as soon as the demonstrations become mediatised and politicised by civil society. Germany: decision-making of security authorities driven by the frame of constitutional judges As underlined in Chapter 2, the German radical right has developed a street strategy: in 2015, 202 demonstrations occurred in Brandenburg; in 2013 there were 61; in 2014, 130.2 The figures indicate a disproportionate number of right-wing demonstrations for a rural state. Policing radical right-wing demonstrations is an even more sensible issue in Germany given that many of them were violent in the 1990s. Consequently, some characteristics regarding the organisation of demonstrations in Germany need to be outlined to ensure comparability with the French case. Each German state has a security framework of its own and demonstrations are handled by the state security authorities. In 2006, German Länder were granted the ability to pass laws regarding the right of assembly. One could assume that each state would have gone its own way since then, making various law changes and eventually ending up with a range of reformed legislative frameworks ruling the right of assembly. However, only a few states reformed (and even then, only marginally) the right of assembly, and most of them kept the old federal model ruling the

158  Policy responses to the radical right right of assembly. Regarding decision-making in Germany, the police chief is the administrative actor deciding whether a demonstration is allowed or not. Like the French prefect, the German police chief is politically exposed and has traditionally been replaced in the event of political turmoil. In some cases, the Minister of the Interior consults with the police chief and the State Secretary to help the police to make a decision (e.g. for the only ban of a Pegida demonstration in January 2015). In sum, the institutional constellation in Germany does not greatly differ from the French one, which makes a comparison of the two countries appropriate. Germany distinguishes itself by allowing few bans on demonstrations, a practice stemming from the legal system and jurisprudence (Della Porta, 1995). In order to explain the policy process leading to the authorisation or ban of a radical right-wing march, it is essential to understand the role of judicial actors. The Constitutional Court of Karlsruhe rules on the right of assembly which has, despite several restrictions, been continuously protected by the judges. Complaints of radical right-wing organisations in summary judicial proceedings are often successful and the courts grant these organisations the right to protest.3 In 1985, the Constitutional Court made a seminal decision that recognised the right of assembly as a fundamental component of representative democracy (Federal Constitutional Court, 14/05/1985). It remains one of the most well-known constitutional decisions among police actors (Aden, 2016). As the freedom of assembly became a state matter in 2006, Brandenburg parliamentarians passed a new law restricting the freedom of assembly and forbidding demonstrating in cemeteries, especially when the ideological motive of the demonstrators is to glorify National Socialism or to trivialise or endorse despotism, genocides, crimes against humanity, or war crimes. Radical right-wing demonstrations were directly targeted by political actors. In addition, recent decisions of the Constitutional Court helped enshrine new liberal rules pertaining to the German freedom of assembly, for instance by justifying the ban of a demonstration (Federal Constitutional Court, 04/09/2009) and by regulating the disproportionate use of fines against demonstrators (Federal Constitutional Court, 26/06/2014). In sum, the legal context is characterised by growing liberality towards demonstrations. Let me now move back to the security actors and examine how they make decisions regarding the policing of radical right-wing demonstrations: what role does their policy frame play in final decisions? To what extent do interactions with other categories of actors influence the decision-making of security authorities? First, the recognition of the freedom of assembly as a fundamental right was widely recognised by police actors in the interviews, which is congruent with Aden’s conclusions stating that constitutional jurisprudence is well-known among the police (2016). An example is found in the statement of a police officer from the police criminal department in Brandenburg: [Question] There are regularly right-wing demonstrations in F* but also counterdemonstrations. How do you handle these public events? The freedom of assembly is a protected fundamental right. It does not matter what ideology the organisers of the demonstration defend. They do have a right to

Policy responses to the radical right  159 protest. We, the police, are obliged to stay neutral. And we try to be as neutral as possible and to ensure that the right to demonstrate, which is anchored in the constitution, prevails for everyone. . . . We are an administrative authority; we examine whether the registered demonstration can take place. It is not that easy to ban a demonstration. Just as in French interviews, the ideological aspect of the demonstrators is set aside. As confirmed by scholarship (Gusy, 2006), banning demonstrations because of registered counterdemonstrations hardly comes into question in Germany, which explains why the respondent insists on the protection of radical right-wing demonstrations by the police. Yet, a central issue in Germany is tensions and confrontations between right-wing demonstrations and counterdemonstrations. One respondent, who used to be chief of police in a big city of North-Rhine Westphalia, where the radical right has been particularly active, comments: Right-wing activists emerged in our city in the late 1990s. . . . They managed to regularly gather 200 to 600 right-wing activists for demonstrations. Moreover, they registered demonstrations in May; this caused outrage in the public opinion and generated big counterdemonstrations, which were also instrumentalised as a platform by autonomous left-wing activists willing to use violence. Here, the respondent considers the combination of a high mobilisation potential of the radical right and strong reactions from parts of civil society as a challenge for police work. This indeed forces them to handle two demonstrations with individuals ready to use violent means against each other at the same time. In the same vein, the trade union of the police, the “Gewerkschaft der Polizei”,4 voices the ambiguity of police work during radical right-wing demonstrations: In the last few years, we could not help but notice that the police, as a neutral security authority that must ensure the right to protest for any political movement, have received much hostility in the context of right-wing extremist demonstrations.  .  .  . The Gewerkschaft der Polizei advocates for a global protection of the freedom of assembly that also protects minorities. Illegal blockades, which to top it all must be dissolved, if necessary, with the use of police violence, harm civic confrontation [with the radical right] more than they help.5 This statement highlights a conflict between the protection of right-wing demonstrations anchored in the Constitution as well as in the practices of the police, and critical positions voiced by German public opinion in the last decades. Additionally, the excerpt shows that the police perceive blockades, which prevent right-wing demonstrations from occurring by blocking their route, negatively due to past experiences where demonstrations had to be dissolved through violent means. This corroborates the argument that security authorities are reluctant to

160  Policy responses to the radical right police radical right-wing demonstrations mostly because of counterdemonstrations. Another respondent, a police officer from the State Protection Office in Brandenburg, provides further details on that matter: I have to say, there have been many left-wing extremist violent acts in these [radical right-wing] demonstrations. . . . These are not normal citizens against right-wing extremism, but persons who come with this one goal. I need to say that out loud, at least this applies for our city. We hardly have any right-wing extremist offences [during demonstrations].  .  .  . Right-wing extremists are familiar with the freedom of assembly. They know what they are allowed to do. And they stick to it, because if they commit an offence beforehand, they will not be able to demonstrate. This excerpt not only illustrates that police actors have internalised the rules of the Constitutional Court, which constrain security authorities to allow right-wing demonstrations, but it also suggests the radical right’s capacity for adaptation. In fact, policing right-wing demonstrations is not an issue for police actors, unlike the unpermitted presence of counterdemonstrations. Counterdemonstrations interfere with the police’s ability to police demonstrations, and they therefore focus on prosecuting counterdemonstrators, a practice that has garnered criticism from civil society. This is congruent with the policy frame of the police identified in Chapter 4: the raison d’être” of the police is to prosecute offences and in the present case to ensure the basic rights of groups who comply with the law. Several instruments meant to avoid confrontations between political groups have been enforced in response to this particular grievance of the police. For instance, the police may change the route of the demonstration, the programme, or the use of slogans. Here again, the enforcement of these legal instruments is strictly controlled by the Constitutional Court, and in some cases the police decisions were repealed,6 which means that the repressive frame of police actors was undermined by the intervention of constitutional judges. The confrontation of the policy frames of judges and of security actors has generated sour criticism on the side of the police, who outline how judicial decisions can contravene their interests. The following excerpt of a press release from the trade union Gewerkschaft der Polizei (09/07/2015) illustrates this assertion: The Gewerkschaft der Polizei regrets the Federal Court’s decision today to repeal the decision made by the police to forbid a series of rocker clubs the use of their symbols for the street parade they organised. These clubs are not [just] supporters of highway enthusiasts who meet up on weekends to let their vehicles breathe in the fresh air. These so-called bikers have illegal activities involving racketeering, prostitution and drug and arms trafficking. They use their battle jackets as a means of intimidation. Here, the policy frame of security authorities, voiced by the most representative police trade union, strongly opposes the position of judges. This is not surprising,

Policy responses to the radical right  161 as police officers have developed a frame based on the prosecution of offences. Therefore, it is no coincidence that press releases highlight the criminal offences carried out by right-wing radical groups of rockers. The last excerpt shows that police actors criticise the demands of the court when these consistently oppose their policy frame. In this case, police actors did not endorse allowing demonstrations by members they perceived as criminals, though they eventually applied the court’s decision. Political actors have passed a range of measures that help the police to regulate demonstrations of radical forces: for instance, the Federal Law on Demonstrations (1989) entitled the police to use (audio- and) video-recordings during marches if there are indications that the demonstration may threaten public order (Ullrich, 2012). A central motivation of the introduction of audio- and video-surveillance during demonstrations was to use it during marches organised by extremist groups and then obtain pieces of evidence contributing to the arrest of extremist demonstrators (Ullrich and Wollinger, 2011). The introduction of such instruments was demanded by the police in order to better police violent confrontations between political groups and to facilitate the prosecution of violent persons. It can be assumed that political demonstrations have become an increasing concern of police law. Police trade unions have largely advocated for improving security forces’ means of policing radical right-wing (and left-wing) demonstrations. Introducing new instruments of regulation has facilitated the police’s missions. The approach of political actors can be interpreted as one of combining restrictive constitutional rules on demonstration bans with the police frame, which is characterised by the interests of their actors (secure demonstrations with minimum effort) and their beliefs (repressive aims, prosecution of offences). In sum, German security authorities are likely to police right-wing demonstrations in accordance with their policy frame, which includes the restrictive rules established by the Constitutional Court in their rationale. Interestingly, the influence of political actors remains quite limited, whereas judges are key players who are able to eventually repeal the actions taken by the police. The analysis of the French and German cases shows that the actors’ constellations are dominated by different policy-makers. Whereas judges play an essential role in the regulation of radical right-wing demonstrations in Germany and can constrain the policy frame of security actors, political actors are the actors in France able to curb the policy frame of the police. Yet, French political actors rarely intervene in the regulation of radical right-wing demonstrations, and security authorities may de facto act in accordance to their policy frame. They distance themselves from the political dimension of the demonstration and concentrate on the maintenance of law and order. Organisers of radical right-wing demonstrations who have developed historical contacts and reliable cooperation with the police are more likely to see their demonstrations authorised. Yet, when radical right-wing demonstrations are “re-politicised” by the mobilisation of civil society groups against the radical right, political actors may step in and proscribe radical right-wing demonstrations. In sum, the frame of the police is limited by the liberality of the frame of the courts in Germany, whereas the frame of French

162  Policy responses to the radical right police actors is rarely limited by any policy-maker, but, when it is, is limited by political actors who are likely to repress the radical right if there is civil mobilisation. These different modes of regulation have implications for how radical right-wing movements mobilise in the streets: in Germany, the radical right, until recently inaudible in the political arena, has developed a street strategy which is protected by liberal jurisprudence in order to gain visibility. In France, radical right-wing parties rather engage in the political arena where they have greater visibility. A few radical right-wing social movements in France continue to mobilise in public areas and usually comply with the frame of security actors. Surveillance of radical right-wing organisations Monitoring the activities of political groups with closed-source intelligence is another central concern for security authorities regulating right-wing radicalism. It raises pertinent questions about the relationship between politics and policies in liberal democracies. I will assess the role of the interactions occurring between security authorities and actors with a different frame in the actual monitoring of radical right-wing organisations. Placing radical right-wing parties under surveillance As specified in Chapter 3, the German Offices for the Protection of the Constitution may monitor political parties with extremist aspirations. Decisions to monitor parties are publicised and are given considerable media attention. Identifying the reasoning behind the decisions that lead to party surveillance helps to explain how politics and policies are articulated to repress right-wing radicalism. In order to monitor radical parties with closed-source intelligence, the Offices for the Protection of the Constitution are required to show that the parties in question do indeed threaten the free democratic basic order. They are required to furnish factual grounds proving the existence of anti-constitutional activities (More, 1994). In the case of political parties, the decision to monitor with closed-source intelligence is made jointly with political actors. One example is the Republikaner (REP). Political considerations around the necessity of monitoring this radical right party emerged following their electoral success in the 1989 elections. For the first time, established political parties had to deal with a radical right-wing party that was not clearly linked to the National Socialist past. Two states, North-Rhine Westphalia (NRW) and Hamburg, decided to monitor the activities of the REP in 1989. In NRW, the Office for the Protection of the Constitution began monitoring the REP in September 1989, shortly after the federal elections. The incumbent Minister of the Interior, Herbert Schnoor (SPD), used the political background of some REP officials to justify the decision. In fact, monitoring the REP was a way to collect data in order to examine whether proscribing the REP in NRW was feasible (Jaschke, 1993). This example suggests that monitoring a party is a politicised decision involving close interactions between security authorities and political actors, especially in the case of the REP, where the party had political importance.

Policy responses to the radical right  163 At the federal level, the Office for the Protection of the Constitution evaluated whether using undercover operations to monitor the REP would be appropriate, a procedure which was publicly announced. Interestingly, the period during which the federal intelligence service studied the possibility of classifying the REP as an extremist party lasted until 1992. Jaschke considers this move a political strategy seeking to intimidate and weaken the REP electorally. The monitoring and therefore the public exposure of parties under surveillance in the yearly reports of the intelligence service, which are widely distributed and discussed in parliaments, is indeed a powerful stigma in German politics (Kohlstruck, 2013). In short, the procedure leading to the use of undercover surveillance against German radical right-wing parties involves both the intelligence service and the government. The decision to monitor a party by means of undercover operations relies on two equally powerful factors: on the one hand, political and security actors both advocate for the monitoring of parties which are perceived as intending to threaten the free democratic order; on the other hand, these decisions are embedded in political competition and are also made by actors in the executive who have an interest in delegitimising political opponents. For instance, the federal intelligence service stepped up their surveillance of the youth organisation of the AfD as well as the most radical grouping within the AfD, “Der Flügel”, in 2019. Additionally, the intelligence service has decided to consider the possibility of monitoring the AfD as a whole. This decision was driven by statements indicating that these activists might defend anti-democratic values and maintain tight connections with extremist movements7 but can also be interpreted as a strategy to pre-emptively delegitimise a popular political party a few months before elections in three Eastern states (Saxony, Brandenburg, and Thüringen) where the AfD was predicted to emerge as one of the strongest parties. This example highlights the involvement of political actors in the decision-making process and shows how militant democratic instruments may be used to disqualify political opponents with a robust electoral base. By contrast, there is not any specific procedure regarding the monitoring of individuals and groups in France. The Parliament is not allowed to control the activities of the intelligence service, which monitor radical right-wing groups. Despite the launching of the Parliamentary Committee for Intelligence Matters in 2008, the intelligence service has not been effectively controlled by parliamentarians: a representative from this committee underlined during his interview that parliamentarians are not aware of the objectives of the intelligence service and follow up on their activities rather than control them. In France, the intelligence service serves the executive branch first and foremost without any sort of democratic control, as evidenced by the literature on the subject (Bonelli, 2001). This fact implies that knowledge on which political actors have traditionally relied to evaluate the significance of right-wing radicalism in France is produced by the police and remains uncontrolled by parliamentarians. However, the executive can also reform the domestic intelligence service as the former domestic intelligence service’s activities (Renseignement général, RG) in the 1990s have shown. In 1994, a scandal broke out around the espionage of the Socialist Party’s national board by an agent of the RG. After the information was leaked to the media, the

164  Policy responses to the radical right government discharged the RG from monitoring political parties altogether and from their historical mission, to produce election surveys for the government. In 2015, a police officer from the Renseignement territorial (RT, mostly working with open-source intelligence) underlined that this decision was “stupid” because the radical right in France is “a political party, the FN, and we cannot even work on them”. This statement shows that the 1994 espionage case leading to a radical decision made by the executive is an essential moment in the history of the French intelligence service, which marked its agents until now. Yet, the interviews conducted with intelligence officers from RT suggest that the intervention of political actors in the monitoring process is usually minimal. This can be explained by two elements: first, parliamentarians are not allowed to control the activities of intelligence actors, let alone their work practice; second, it is now prohibited to monitor parties that are active in political competition, which has caused the executive’s interest in monitoring right-wing radicalism to fade. Consequently, decision-­ making on the monitoring of radical right-wing groups is greatly impacted by the policy frame of intelligence actors. Of course, it is reasonable to assume that a hypothetical resurgence of radical right-wing subculture could alter the current mode of decision-making. For now, intelligence officers remain uncontrolled key players in producing state knowledge on right-wing radicalism despite the reorganisation of the domestic intelligence service in 2008 and the subsequent attenuation of departments in charge of monitoring the radical right. The monitoring process and impending repression After deciding to monitor a political group comes the process of monitoring itself, which can eventually lead to repressive measures. Regarding the German case, I will present the programme “Tolerantes Brandenburg” (TB) in order to explore the role played by political actors on the monitoring and repression of the radical right. The state government conceived TB in 1998 to counter right-wing radicalism when crimes and offences with a right-wing motivation had skyrocketed and were increasingly publicised. The motivation was primarily to limit negative publicity in an eastern German state where right-wing violent groups already had a deterrent effect on the attractiveness of the area. TB first and foremost aims at strengthening the commitment to a constitutional culture in which human dignity is a core value (Kleger, 2006). In order to do so, TB intends to support civil initiatives promoting democratic values. But TB also develops repressive measures in order to secure public life, which means that repressive actions enforced by security institutions are part of a broad political programme with diverse policy actors and consequently different policy frames. Since TB promotes the civil commitment of local actors against right-wing radicalism, one can assume that there are interactions, perhaps knowledge transfers between different policy spheres, or in any case that TB influences the practices of policy actors enforcing repressive measures. On this point, a respondent from the State Protection Office in Brandenburg was asked whether TB has influenced how his police department enforces responses to the radical right:

Policy responses to the radical right  165 [Question] How has the introduction of Tolerantes Brandenburg influenced your daily activities? Well, it hasn’t really influenced them. But let’s put it this way: it has become clear that there are other institutions working in this field of activity. There still is a separation, but we are informed through diverse internal memos and we are encouraged to work with them, to exchange information, etc. And that is something that has become increasingly important. We are not really influenced but for sure they sometimes get insights from persons who complain [that the police] “know that there is a right-wing radical or extremist activist here and yet do nothing”. . . . So, something we get active about and investigate thanks to the information given by associations. Although the respondent argues that TB has had a limited influence on his working routine, he brings up a situation which highlights the inputs of the programme: contact with civil initiatives monitoring radical movements on-site apparently allows the police to obtain information and open investigations on politically motivated offences. This example suggests that TB is strong at creating new dynamics between actors with various policy frames to address the radical right without affecting their core missions. Additionally, new policy instruments for monitoring and repressing right-wing radicalism were implemented by the police as TB was introduced. One of them is the so-called “Mobile Einsatzgruppen” (MEGA); these are police special units in charge of securing places where radical right-wing activists meet up. MEGA use stop-and-frisk tactics against activists, collect pieces of evidence, proceed to detention or order activists to leave the meeting place (Kleger, 2006). These units result from an internal confrontation with the phenomenon of right-wing group violence among the Brandenburg State Criminal Police Office (Landeskriminalamt). This example shows that actors with a repressive frame use the political initiative TB as a way to develop new instruments in a bottom-up perspective that improves the responses enforced against right-wing radicalism. In sum, the interviews show that the governmental decision to introduce a broad policy against right-wing radicalism has encouraged the police to cooperate with other categories of actors, thereby opening police work to new methods and routines. Internally, TB has also contributed to the development of new instruments such as MEGA in order to more closely monitor the activities of radical right-wing groups. In France, the policy frame of intelligence officers identified in Chapter 4 plays a significant role as they monitor radical right-wing activists. Indeed, interviews emphasise that security actors are free to develop strategies to regulate groups that disturb the public order without being much influenced or constrained by other categories of actors. The example of a group of neo-Nazis in the small town of C* in northern France is telling. A senior respondent of the gendarmerie of the département where C* is located, explains that there was a group of young right-wing activists who fought youngsters with an immigration background and anti-fascist activists between 2008 and 2011. The respondent also mentions the common action of the gendarmerie and the prosecution department to repress violence. In

166  Policy responses to the radical right the meantime, civil society urged political actors to intervene. Despite the lack of reaction from political authorities, the media multiplied reports on C* and the radical left organised demonstrations in the small city from March 2010 onwards (Mestre and Monnot, 2010; François, 2014), attracting over 400 left-wing activists and causing a significant police deployment which drew further attention to the small city. Moving back to the respondent from the gendarmerie, he explains that his team had hardly been in contact with the Minister of the Interior and underlines that the situation was handled with the “broken window theory” which consists of the surveillance of all right-wing activities in a given area and of the prosecution of any offence, even the smallest ones. This theory was developed by criminologists (Kelling and Wilson, 1982) and has inspired a technique of policing adopted by various police departments, most notably the New York Police Department during the 1990s (Harcourt and Ludwig, 2006). In C*, the gendarmerie decided jointly with the prosecution department to prosecute every single offence that occurred. This situation is comparable to the one in Brandenburg in some respects. A  similar process to the one conducted by the MEGA units developed and involved the deployment of large numbers of personnel to monitor the activities of right-wing activists and prosecute offences. By contrast, the actors from the gendarmerie handled the radical right alone, were not assisted by a comprehensive policy programme such as TB, and did not collaborate with civil society. The respondent from the gendarmerie evaluates the policy outcome positively, underlining that there were “21 offences in 2008, 72 in 2009, 32 in 2010 and progressively fewer until they became insignificant [in 2014]”.]8 What is striking in that case is that the strategy was conceived by and for the police force according to their own traditional policy orientations (repress and prosecute) without being influenced by any other policy-makers. This is consistent with the conclusions of the previous section on the French case where I stated that the policy frame of security forces largely remains unchallenged. Parliamentary oversight over the domestic intelligence service and the police Here, I  will expand on the German case, considering that the oversight of the intelligence service is institutionalised in this country. Each parliament has a Parliamentary Committee in charge of controlling the activities of the intelligence service. The role of these committees is to evaluate the appropriateness and the legality of the actions undertaken by the intelligence service. In addition, parliamentarians established a parliamentary committee of inquiry in order to explain the role played by the security authorities in the NSU terrorist case as a form of ex-post control. My aim is to determine the impact of this parliamentary control on security forces’ regulation of the radical right. I therefore ask: do control procedures conducted by political actors or policy instruments introduced by governments to reform the intelligence service conflict with the policy frame of these actors? First, instruments were introduced after the revelations of the murders carried out by the NSU network in order to promote communication between German

Policy responses to the radical right  167 security authorities. In 2012, the federal security force launched the “right-wing extremist database” (Rechtsextremismusdatei, RED), a software shared between security authorities (both the police and the domestic intelligence service), which compiles the information collected on radical right-wing individuals with a violent record. The introduction of RED was an attempt to foster cooperation between actors who are usually forced to work apart, be it because of the separation rule or because of federalism. This had an impact on the daily practices of security authorities but only to a limited extent. The chief of a State Criminal Police explains how RED influenced the work of his agents: So, I have my process system on my computer, I use it to write my reports and consult my notes at work. If I look for information, for instance on Mr. Mayer, then, I find all information registered in our police data system. I find out whether we have already investigated on him. I also find information that the police have gathered in other states on Mr. Mayer. I see where he lives, whether he has a car, whether he has a file at the Department of Foreigners. And suddenly, I am told that now I also need to query the name Mayer in another system [RED]. That’s an interruption in my workflow. That’s never a good thing, because in case of doubt, a police officer will not do it and say: “oh well I don’t feel like doing that right now”. You understand what I mean? Anything that is not part of the daily routine, that complicates my work, I might not do it at all, or not really, or not always. That’s why I find GETZ a better place to communicate. GETZ is a Joint Extremism- and Counter-Terrorism Centre (Gemeinsames Extremismus- und Terrorismusabwehrzentrum) that was created in 2012. This institution is in charge of coordinating all security institutions that are in charge of countering right-wing terrorism and regularly gathers actors from the police and the intelligence service to exchange on current criminal cases involving rightwing violence. This excerpt suggests that the direct and material consequences of the NSU revelations did not significantly modify the routines of the security authorities and that human communication is preferred to enhance cooperation. Second is the work of federal and state commissions of inquiry after the NSU denounced the lack of financial and human resources provided to parliamentarians. The federal committee in charge of overseeing the activities of the intelligence service, the Parliamentary Oversight Committee (Parlamentarisches Kontrollgremium), is indeed poorly supplied in staff, so that several parliamentarians interviewed concluded that control missions could not be correctly conducted. A parliamentary advisor of the Liberal faction explains: Parliamentary control is organised as follows [in 2013]. There are 11 parliamentarians who usually meet once a month and they are being lectured by the heads of intelligence agencies about the latest developments or significant events. They can also ask questions. . . . According to the information that we’ve got from the Parliamentary Inquiry Committee on the NSU and from

168  Policy responses to the radical right our Parliamentary Control Committee, we believe that parliamentary control over intelligence agencies is only very superficial. If you look at legislation, it’s not so bad really, but when you look at practice, how many meetings parliamentarians have, once a month for let’s say two or three or one and a half hours, and how they are being reported . . . they don’t have time to conduct an in-depth control over the work of institutions with more than 1,000 employees. . . . We don’t really have deep insights on the activities of the intelligence service, nor do we control thoroughly. . . . At the moment, we mostly assess what is being done on random cases or on cases which have been brought to our attention by the media. The respondent points out the gap between the legal framework and the practical implementation due to structural constraints. The same problem was underlined by a parliamentarian from Die Linke in Saxony who explained that the parliamentarians in the control committee do not have specific staff at their disposal to prepare the meetings with the delegates from the intelligence service. Based on parliamentarians’ difficulty controlling the intelligence service and on the absence of any statement in the interviews with intelligence officers indicating that parliamentarians would exert pressure on their activities, it can be assumed that the frame of actors monitoring radical right-wing groups has not been significantly constrained by political actors.9 On the contrary, after the NSU, legal provisions increased the financial and human means devolved to the German domestic intelligence service (Grumke and van Hüllen, 2016). In France, the Parliamentary Committee for Intelligence Matters is not allowed to control the intelligence service, and the committee merely follows their activities. As in Germany, there are few parliamentarians (9) in the committee, and they do not have additional staff to help them with the specific task. In fact, an actor from the French National Assembly with good knowledge of the intelligence issues recognised during his interview that most parliamentarians do not even care about issues regarding intelligence and do not get involved in the activities of the committee. Therefore, it is not very hazardous to assume, considering the German case, that French parliamentarians do not influence the practices of the intelligence service at all. The parliamentary control over the practices of the intelligence service may seem to significantly diverge between France and Germany: German parliamentarians control the services in charge of monitoring right-wing radicalism, whereas their French counterparts are not allowed to do so. Yet, when exploring German practices, it appears that parliamentarians have not technically been able to fulfil their role. In this section, I  explored the decision-making process of security actors by focusing on two instruments that are used in France and Germany to repress the radical right. The central question was to evaluate whether security actors make decisions according to their policy frame. A premise was that the interactions taking place between security authorities and other categories of actors could play a significant role in the decision-making of security authorities. These interactions indeed impact the implementation process, especially in Germany. In this

Policy responses to the radical right  169 country, the decision-making process of repressive measures involves non-state organisations, political actors, and constitutional judges. This means that security authorities are obliged to integrate the demands of these actors into their practices to implement a repressive measure: this is especially striking concerning the influence of judges on the decisions of the police regarding demonstrations but also on the decision to monitor radical groups. Yet, the example of parliamentary oversight underscores a gap between legal regulations and actual practices: despite parliamentary control, security actors manage to keep control of their routines and subsequently of their policy frame. In contrast, decision-making and the implementation process in France are compartmentalised, giving the security authorities greater room for manoeuvre which enables them to act according to their policy frame. If political actors decided to intervene, then the actors of the security authorities would comply with political will, which means that their policy frame would be constrained, as in the German case. Yet, this is hardly the case as far as right-wing radicalism is concerned. In both France and Germany, actions taken by security authorities remain driven by their policy frame unless 1) radical rightwing groups call on judges (in Germany), or 2) government and non-state actors mobilise around the issue of the repression of right-wing radicalism (in France and Germany). These differences between the two countries are explained by different framings of right-wing radicalism: in Germany, a series of policy-makers are historically involved in the policy process, whereas France mostly relies on security actors while political actors rarely intervene. It is reasonable to argue, however, that a modification of the dynamics within the French radical right, such as growing violence or more militant socio-cultural movements, could lead to political actors having a greater impact on the actions undertaken by the police.

Preventive actors: founders of a new policy segment I will now explore the role of the frame of non-state actors in decision-making regarding prevention and repression. Since Germany is much more advanced in creating preventive programmes against radicalism than France, the German case will be developed more extensively. I seek to find out how the development of preventive responses against the radical right has impacted the policy against right-wing radicalism. Influence of non-state actors on preventive policy In the French case, the political decision system and the state are closed structures. Archambault (1997, p.  17) talks about “etatism as the most important feature in French history”. This is illustrated by the tradition of state-centrism (Cole, 2008) where the executive branch has a high implementation capacity. The association-related organisations remain underdeveloped because the state has kept control over a wide range of social problems10 (Rucht, 1994). By contrast, strikes, demonstrations, civil disobedience, and in some cases forms of violence are tolerated because revolutions and revolts are part of the accepted

170  Policy responses to the radical right heritage of the French Republic. For Rucht, the French political culture is detrimental to the emergence and the consolidation of strong social movements that would take part in the policy process. There is a mobilisation against the radical right in France, but it is dominated by short-term initiatives which are not integrated with state initiatives. Only larger civil society organisations are sustainably committed to the prevention of the diffusion of radical right-wing values. The scarcity of civil society organisations addressing the radical right is strengthened by the fact that the regulation of political radicalism is a task historically devolved to actors from the political arena. By contrast, Germany is marked by a different decision-making pattern. Developed civil society and administrative jurisdictions allow social groups to intervene in the implementation of state politics. The representation of interests is well-developed and social groups tend to be financially strong and well-organised, a pattern that is largely reinforced by relationships with the government. Since the late 1960s, there has been a competitive conception of democracy, which is not shy of conflicts (Conradt, 1980), and unconventional forms of actions have become popular in Germany, contributing to the development of social movements (Rucht, 1994). Considering German political culture, it is hardly surprising that an anti-radical right-wing civil society composed of various citizen initiatives and structured non-governmental organisations has emerged. The differences in political culture of both countries account for the comparatively enhanced resources in Germany to influence policy decision-making. Influence of non-state actors on political actors regarding prevention In order to assess the influence of non-state actors responding to right-wing radicalism in Germany, it is helpful to come back to the late 1990s and early 2000s when right-wing radicalism was progressively set on the political agenda. The issue of right-wing violence and rightist thinking increasingly attracted media attention. Fighting right-wing radicalism became an issue set on the political agenda. The example of Brandenburg, a rural state surrounding Berlin hit by right-wing violence in the 1990s, is telling. The Social Democratic government was continuously criticised by the press and non-governmental associations that already existed. The members of the government first denied the accusation that right-wing radicalism was not properly addressed. Civil initiatives against rightwing radicalism, criticising the lack of political reactions, saw their meagre funding jeopardised or even withdrawn as stated by a respondent working for an NGO in Brandenburg. In 1997, the government started recognising the importance of the issue of right-wing radicalism and took action. In doing so, the government created the Alliance against Violence, Right-Wing Extremism and Xenophobia  – a large non-governmental organisation whose operating expenditures are state-funded. A year later, the state programme, Tolerantes Brandenburg, was introduced. In this case, setting right-wing radicalism on the political agenda in Brandenburg was triggered by external non-state actors. In western German states such as North-Rhine Westphalia (NRW), where right-wing radicalism was also

Policy responses to the radical right  171 an issue, the process was similar: for instance, in Dortmund, civil initiatives and the media put the municipal and “Land” governments under pressure during the 2000s, which eventually led them to set the issue of right-wing radicalism on the political agenda in 2012. From then on, financial support for non-state organisations fighting right-wing radicalism increased through the state programme, “NRWeltoffen”. These examples suggest that right-wing violence and the subsequent pressure of non-state actors lead political actors to set the issue on the agenda and to empower non-state actors. The involvement of civil society in promoting democratic values also had indirect but sustainable effects on the policy orientations chosen by political actors. Political actors eventually took an active part in the promotion of democratic values, which is illustrated by the allocution of the incumbent Federal Chancellor Gerhard Schröder in 2000 when he made his call for the “uprising of all decent people” and set the issue of responses to right-wing radicalism on the federal political agenda. Jaschke (2000) points out three manners of responding to right-wing radicalism: symbolic politics, repression, and social integration. If the appeal of Schröder was symbolic, several national programmes fighting “right-wing extremism, xenophobia, and anti-Semitism” and related to social integration were also launched. Like Tolerantes Brandenburg, these programmes insisted on countering radical right-wing ideas with preventive projects carried out by non-state actors. The preventive dimension of the anti-extremist policy in Germany was about to emerge. Despite political alternations, federal programmes against political radicalism were maintained even if policy orientations sometimes evolved. From 2011 onwards, for instance, the incumbent Ministry for Family Affairs (CDU) insisted on the importance of struggling against all types of extremism, especially against left-wing radicalism, which was symbolised by the controversial declaration of democracy (Chapter 4). During the coalition government between the SPD and the CDU-CSU from 2013 to 2017, the new executive team in the Federal Ministry for Family Affairs (SPD) opened the scope of measures against right-wing radicalism by fostering the introduction of victim advisory centres and prevention among other social groups than the youth (e.g. the elderly). These policy changes show that a change of government can indeed generate debate on the conditions of intervention against the radical right, but the idea that preventive programmes should be led by nonstate actors and that these are now indispensable, is anchored among political actors from governing parties. I stated in Chapter 1 that Karl Mannheim (1943, p. 7) underlined the political importance of maintaining a “peaceful functioning social order” based on values such as “brotherly love, mutual help, decency, social justice, freedom, respect for the person”. Reintroducing large and sustainable programmes promoting these values was a way to reconnect with this conception of democratic self-defence. Not only did the pressure of non-state actors lead political actors to introduce preventive measures against right-wing radicalism, but the civic mobilisation also contributed to the continuation of these programmes whose necessity has not been questioned by the different parliamentarian majorities. Inarguably, if a radical right party was to have access

172  Policy responses to the radical right to the government, at the Land or federal level, the influence of mobilised civil society against right-wing radicalism would considerably decrease as the executive would probably rely on another part of civil society supporting right-wing radical values. The French case, in contrast, is characterised by the absence of large preventive measures relying on civil society organisations. As evidenced by the creation of the DILCRAH (Chapter 4), there is a consensus that some preventive responses to racism and anti-Semitism should exist and be led by state structures. The fight against racism is not solely handled by non-state actors but is also a political matter, which has been invested by political parties and by the executive. Since the early 2000s, each Minister of the Interior has had a policy plan against racism. It remains a politicised matter, which political actors from the executive are eager to take up. The following statement, an interview excerpt from a senior official of the DILCRAH, outlines the interest of actors from the political arena in mastering the development of such preventive institutions: What is an interdepartmental office?  .  .  . When we developed the department, we made the statement that it was a political necessity. So, it needs to be carried by a political actor, and at the same time we are not part of a ministry. Nor are we really an administrative department. This means that the whole thing really depends on the personality of those working in the department. . . . We are something of an administrative department, which makes it possible to separate the department from the delegate [of the DILCRAH]. . . . We definitely are not a political cabinet. This excerpt highlights the entanglement of the DILCRAH in politics, which implies the necessity for the government to place an actor at the head of the DILCRAH that has visibility to carry political messages. Since the DILCRAH was introduced, there have been two delegates, both having worked in ministerial cabinets. By comparison, the coordination of Tolerantes Brandenburg in Germany is also coordinated by a political figure close to the government. On this point, a member of the Christian Democratic opposition in the Brandenburg Parliament (2016) complained that the programme was led by the historical ruling party (SPD), which allegedly instrumentalises the programme to create a political space. For him, this is detrimental to political hygiene. This shows that the state prevention of right-wing radicalism in Germany produces tensions among political actors. Although the preventive initiatives launched by French governments are not as broad as in the German case, the political processes are similar: the emergence of a public problem (right-wing violence) followed by public controversies, leading to the introduction of preventive measures (Cobb and Elder, 1972; Kingdon, 1984), which are politicised by the executive. But the differences are striking too: in the German case, civil society is much more central to the policy-making process of preventive programmes, whereas the French case illustrates the prominent role of political actors and their interests in establishing statefunded preventive programmes irrespective of non-state actors.

Policy responses to the radical right  173 Role of the interactions between the executive and NGOs on policy outputs After the unilateral creation of institutions in charge of prevention such as the DILCRAH, French state actors sought to establish cooperation on projects with two categories of non-state actors or independent public actors. The first of these encompasses “deep” and long-lasting partnerships with cultural or scientific institutions and traditional NGOs involved in anti-racist work that already have experience and enjoy visibility. The strategic dimension for the DILCRAH is noticeable as it not only funds projects but also co-develops the funded projects, unlike the German case, and consequently influences the project’s orientations. The alleged influence of the DILCRAH on non-state actors must, however, be tempered by the fact that flagship institutions fighting racism possess know-how (Chapter 4). As a matter of fact, a respondent of SOS Racisme in charge of legal matters underlined that the power exerted by the DILCRAH to control the use of the funding was weak. The second category of projects supported by the DILCRAH is made up of those chosen on the basis of a call for projects, in accordance with the German practice. The amounts awarded are not as substantial as for the close partnerships with bigger institutions, which shows the division between insiders who develop sustainable projects and outsider initiatives funded for smaller projects on a shortterm basis. The influence of the DILCRAH on the content of these projects is also minimal. These elements allow me to argue that the influence of political interests on French non-state actors is relatively limited. The subsidiaries awarded to French NGOs are moderate in comparison to the German programmes against right-wing radicalism or other types of actions devolved to NGOs in France where state control is stronger (e.g. asylum). This could explain why the controls over the finance of NGOs is quite loose. The limited staff resources available among institutions such as the DILCRAH constitute a further explanation for the weak evaluation of the NGOs delivering preventive projects. In addition, close partnerships between state authorities and flagship associations against racism that are concretised by regular meetings and cooperation can explain the limited legal control of their activities. The literature on the accountability of French NGOs points out that the freedom of association is an often-used argument to explain why the accountability of French NGOs is generally less developed than in other countries such as the USA (Liautaud, 2009). As outlined in Chapter 4, German NGOs are relatively independent from state actors. And many have developed several tactics to enjoy even greater independence, which depends on funding. These tactics include diversifying their funds (including private funds) and avoiding the funders they believe to be the most demanding. In both cases, one may further question the impact of political demands on preventive responses against right-wing radicalism. Looking at the obligations to which NGOs consent in exchange for public funding, it becomes apparent that the French and German cases share similar outcomes. In the German funding system, the importance of reporting in order to obtain further funding is decisive. A respondent from a large German NGO for preventing radicalisation

174  Policy responses to the radical right explained that her association was recognised as a major actor when it comes to carrying out large de-radicalisation programmes, but that in order to receive funds after the end of each multiyear project, they had to submit a new project to the Ministry, at least until the inception of the federal programme “Demokratie Leben” in 2014. If this requirement was not fulfilled, the application was automatically rejected. The same respondent underlined that the staff of the Ministry for Family Affairs who was aware of these procedural limits suggested to artificially make changes even if the programme was successful enough. This example shows the impact that the rules established by state authorities can have on non-state actors’ choices, as well as their close relationship with the staff of the ministry, as these actors share the same policy frame (Chapter 4). Even if there is state control of the funding, non-state actors enjoy room for manoeuvre (Rhodes, 1988). In some cases, associations enjoy strengthened independence. A good example is the Alliance against Violence, Right-Wing Extremism, and Xenophobia. This association was created by the government in Brandenburg in 1998 and can only be dismantled by the executive, who would be required to submit official justifications, which bear political costs. Members of the Alliance regularly use this institutional specificity to put the government under pressure, using the public plenary sessions each year to address current issues. For instance, in 2016 the Alliance published a book, Generation Hoyerswerda,11 which explores the right-wing subculture in Brandenburg and the networks around the NSU, accusing Brandenburg security authorities of having an important responsibility in the NSU failure. A respondent from the Alliance insisted on the fact that this book was presented shortly before the annual plenary session of the association, which is attended by numerous political actors from the Land. The main objective was to open a debate around the possibility of introducing a parliamentary committee of inquiry to investigate the involvement of liaison officers from the Office for the Protection of the Constitution within the right-wing scene. Eventually, the publication of Generation Hoyerswerda helped, along with the testimony of an agent from the Office for the Protection of the Constitution in Brandenburg during the trial of Beate Zschäpe (NSU) in Munich, to set the issue on the political local agenda by the political opposition in the Parliament (the CDU and Greens) that put pressure on the government to initiate an inquiry, which happened on 29th April 2016. This example underlines the influential position of the Alliance within the Land actors’ constellation and the limited influence that the executive has had on its activities. Generally, the impact of political demands on non-state actors’ decision-making exists, but is yet limited: in all cases, the content of programmes is left to NGOs, which develop preventive measures against the radical right based on their own know-how. They are vulnerable to cuts and mostly do not directly become involved in regional politics. It could be noted, however, that some associations, especially those with high institutional standing, become involved in politics and contribute to political decision-making. In this sub-section, I  assessed the influence of non-state actors on the ­decision-making process of preventive measures. Political cultures are important to understanding the role of non-state actors in policy-making. France is marked

Policy responses to the radical right  175 by etatism, which restricts the impact of non-state actors in the decision-making process. This phenomenon is strengthened in the present case by the fact that combatting the radical right is perceived as a political duty. By contrast, Germany’s policy system is characterised by its openness to civil society organisations. In this regard, the impact of non-state actors on the actions undertaken by political actors to prevent right-wing radicalism is greater in Germany than in France, where political actors are likely to act irrespective of the position of NGOs. In the same vein, the state and political control of projects conducted by non-state actors is more limited in France than it is in Germany. In sum, the German case displays numerous interactions between state and non-state actors for the implementation of a preventive policy, whereas the French case is marked by greater compartmentalisation of the policy-making process. These contrasting processes are fed by two main factors: distinct national frames and political cultures, which integrate differently civil society in decision-making. The impact of preventive actors on traditional repressive measures Setting reforms to the political agenda In Germany, Ministries of the Interior produce statistics tracing the evolutions of politically motivated criminality. The early 1990s were marked by racist riots in Rostock-Lichtenhagen and in Hoyerswerda and high-profile arsons with a rightwing motive in Mölln and Solingen: following these events, an intensive discussion occurred in German media around the issue of right-wing radicalism and the efficiency of repressive responses. Two journalists reporting on right-wing radical matters investigated statistics regarding politically motivated criminality produced by the police. In autumn 2000, Frank Jansen (journalist for the Tagesspiegel) and Heike Kleffner (journalist for the Frankfurter Rundschau) published an alternative list of victims of right-wing violence: at that time, whereas the government counted 22 victims, the two journalists listed 93 casualties. This publication helped prompt a major reform of the classification system of political criminality (Bleich and Hart, 2008). The accuracy of lists of right-wing casualties is still a hotly debated issue in German politics and within non-state organisations, which regularly update their unofficial list. This debate is an example of non-state actors criticising a central instrument of German militant democracy (statistics on politically motivated criminality), thereby successfully advocating for change. In France, lobbying actions ensued to set the issue of right-wing radicalism on the political agenda. A specificity of the French system is that NGOs are allowed to bring cases to court. French NGOs have brought to court civil actions over offences with a right-wing motive, as illustrated by Jean-Marie Le Pen’s numerous trials for hate speech. Additionally, NGOs regularly resort to individual MPs who are actively fighting right-wing radicalism on their constituency.12 As evidenced by previous developments, such as the 1972 law against racism (see Chapter 2), the influence of non-state actors on MPs has helped set the issues of right-wing radicalism and racism on the legislative agenda. In fact, as in the German case, non-state actors in France have

176  Policy responses to the radical right successfully used policy instruments to set racism on the agenda in France. But policy outcomes vary. In Germany, statistics on politically motivated criminality and their use by public authorities were publicly questioned as a policy instrument. In the early 2000s, a coalition of non-state actors formed around the two journalists who first initiated the inquiry on the victims of right-wing violence. Political groups such as the left-wing radical faction of the “Partei des Demokratischen Sozialismus” (PDS), which later became Die Linke, helped bring the issue into the parliamentary arena and set it on the legislative agenda. Eventually, an advocacy coalition13 (Sabatier, 1988) emerged, leading to the reform of the production of the policy instrument in 2001. The critical examination by non-governmental actors of state responses to right-wing radicalism is supported by the substantial weight of political foundations in German politics, which “are financed by public funds and the amount each foundation receives depends on the number of each political party represented in the Bundestag” (Dakowska, 2005, p. 150). These foundations, thought of as think tanks, provide political actors with knowledge, including on the ways to address right-wing radicalism. Regarding their impact on policy-making, political foundations certainly advocate among their own party via the production and the diffusion of studies (Heisterkamp, 2014). For instance, there was a cooperation between the NGO “Opferperspektive” and the foundation’s “Friedrich Ebert” (close to the SPD), which consisted of an updated exhibition presenting the victims of right-wing violence, including victims who were not recognised as such by the Ministry of the Interior.14 In France, bringing cases to court helped NGOs gain visibility, put the matter (racism or right-wing radicalism) on the media agenda, and in some cases obtain justice orders leading to the payment of damages. Parliamentary lobbying contributed to laws repressing (mostly indirectly) right-wing radicalism. If French NGOs surely managed to set right-wing radicalism on the agenda, they did not assess or criticise the use of legal instruments to repress right-wing radicalism by state authorities: why is that so? The existence or absence of a legal framework targeting political radicalism plays an overriding role in the civic control over the use of repression against right-wing radicalism. German NGOs are numerous in a political system where right-wing radicalism is an identified policy object and can develop advocacy coalitions to constrain state actors to reform their practices. Non-state actors do not only prevent right-wing radicalism, but they also influence state authorities in how they repress this phenomenon. By contrast, French associations are concentrated on activities that do not directly question how authorities handle right-wing radicalism, which is coherent since French state authorities do not frame right-wing radicalism as a policy matter. Moreover, French NGOs intend to grant the victims of radical right-wing ideology access to court; in so doing, associations support or strengthen the state effort to repress (even if indirectly) the expressions of right-wing radicalism. Legitimise disruptive instruments to repress right-wing radicalism In order to reform how right-wing radicalism is handled by actors with a repressive frame, preventive actors may also impose disruptive actions (Piven and Cloward, 1977), whose impact on radical right-wing movements is perceived as

Policy responses to the radical right  177 strong. As evidenced before, demonstrations are particularly used by both German radical right-wing movements and their opponents. In this context, blockades, the strategy of preventing right-wing demonstrations from occurring by blocking their route, are often organised by counterdemonstrators. This is a response to the increasing number of demonstrations registered by right-wing groups and at the same time to the enforcement of a permissive policy, which allows these groups to express their opinions. As evidenced by scholarship, “successful mobilisation by one group may threaten to affect the interests of another group in such a way that it provokes counter-mobilisation or competitive mobilisation among the members of that group” (Koopmans, 2004, p. 27). The groups promoting blockades, historically anti-fascist groups and now a large spectrum of civil society fighting rightwing radicalism, express their will to prevent anti-democratic ideas to be spread in the public space. Yet, the use of this instrument remains controversial among state actors. I previously explained that the frame of police actors was marked by their reluctance towards anything that complicates the policing of radical right-wing demonstrations, and consequently towards blockades. The interview conducted with the general prosecutor of Brandenburg also shows that he disapproves of blockades, as they interfere with the right to protest and significantly impede the work of the police. Counterdemonstrators justify the radicality of their action in publications (Sturm, 2014 in the anti-fascist journal Überblick) by the impossibility to discuss with radical right-wing groups who deploy narratives based on irrational arguments. They also mobilise the constitutional framework (and more broadly National Socialist legacy) to justify the illegitimacy of right-wing radical groups to organise blockades: Right-wing extremist structures are directed against the basic values of coexistence and seek to destroy democracy. That’s why they must be consistently fought everywhere and from the outset. We should not wait until they have become so strong that they cannot be ruled anymore. (from the website Kirche und Demokratie für Menschenrechte) Blockades are not only directed at radical movements but also signal to state authorities that counterdemonstrators do not accept the presence of right-wing radicalism on the streets and will continue to block them despite the regulations concerning the right of assembly. Interestingly, the acceptance of blockades is now implicit among certain political actors, which shows that after decades of regular blockades, non-state actors have progressively become convinced that this instrument is a politically legitimate means to address right-wing radicalism. Empirical evidence supports this argument: In our case, city councillors, members of the parliament, members of the Bundestag, members of the European Parliament want to cut off the racists’ route. This shows that massive blockades have progressively been recognised by officials as [a] legitimate form of protest. (from the website of the local initiative Kein Ort für Nazis, in the city of Frankfurt Oder)

178  Policy responses to the radical right Also, the social-democratic foundation Friedrich Ebert published in 2013 a booklet on right-wing extremism and how to respond to this phenomenon.15 In this publication, the authors recall that the former president of the Bundestag, Wolfgang Thierse (SPD), openly defended peaceful blockades and warned about a detrimental criminalisation of this practice. He finally underlined the power of blockades, which have almost forestalled one the biggest European right-wing radical marches in Dresden in the early 2010s. In sum, German non-state actors have continuously used disruptive actions in order to respond to right-wing radicalism, which proved successful to impede radical right-wing demonstrations. In doing so, activists also sought to legitimise the use of this controversial instrument and counter permissive policy towards radical right-wing demonstrations. If police actors are still critical of blockades, I explained that preventive actors have progressively convinced political actors of the benefits of this instrument. Influence of the preventive frame in the policy-making of repressive actors To begin with, let us consider again the role of civil society on the practices of the police. Aden (2014) argues that the great diversity of non-governmental organisations and social movements in Germany yields a considerable influence upon security culture, particularly with respect to legislation on telecommunications data retention. How do the activities of German civil society influence the repression of right-wing radicalism? First, non-state actors regularly criticise how repressive police actors and the intelligence service regulate right-wing radicalism in Germany. A historical bone of contention is the accusation made by certain non-state actors that the police and the intelligence service turn a blind eye to right-wing motivated crimes and offences. In the first section of this chapter, two police officers from the State Protection Office in Brandenburg emphasised how non-governmental initiatives had been in contact with the police in order to notify the authorities about the presence of right-wing violent activities. This example suggests the presence of local initiatives in the daily activities of a regional police force. Actors with a preventive frame progressively established contact with repressive actors. The influence of their preventive frame on the police repressive frame may be assessed by taking a look at cooperative projects. Take for instance, a committee set up in Brandenburg in 2013 which was supervised by two academics from the University of Potsdam and in charge of reopening old cases, which had been identified by non-state actors as right-wing motivated crimes. Twenty-four cases were reopened, 21 were effectively assessed, and 9 were eventually recognised as right-wing motivated (Kopke and Schultz, 2015). This committee met several times over the span of two years and reunited representatives from different institutions with different policy frames: the general prosecutor of the Land, representatives from the Ministry of the Interior, the State Police Academy, the Criminal Police, the Integration Commissioner, and regional NGOs. The supervision by two academics is an initiative of the incumbent Minister of the Interior of Brandenburg. This unusual choice, which emphasises the independent character of the committee, also suggests that political actors in Brandenburg have a relationship with academics and, more broadly, with

Policy responses to the radical right  179 civil society, members of which were also integrated into the committee. Regarding the outcomes of the meetings, the various actors of the committee, as well as other police actors interviewed in Brandenburg, underline the positive effects of these discussions where the members of the committee came in multiple cases to identical conclusions. One author of the final report who was interviewed also addresses the learning effects of this committee where all actors reciprocally saw various policy frames in action, especially during discussions focused on questions such as, “How can one describe right-wing extremism?” and “What is a political motivation?” Eventually, some cases were classified as having a right-wing motive (9) and others not (12). In sum, the inclusion of actors with a non-repressive frame to a committee working on cases usually handled by actors with a repressive frame and the integration of old cases in the statistics on politically motivated violence are indicators for the role played by preventive actors in the policy area of repression against the radical right in the long run in Germany. In France, the role of actors with a preventive policy frame on repressive actors is much narrower. An online platform for reporting illegal internet content, Plateforme d’Harmonisation, d’Analyse, de Recoupement et d’Orientation des Signalements (PHAROS), was introduced in 2009. Police officers analyse the reported content. As in Germany, this task requires the police staff to be able to detect the racist nature of the content in order to open a prosecution file for online hate speech. In order to do so, a specific sub-section was created to focus exclusively on hate speech content, and the DILCRAH conducted trainings with the police officers in charge of handling hate speech content. Police officers learnt to identify racism, a skill that is mostly represented among actors with a preventive frame, as outlined in Chapter 4. In the French corpus of data, this is the only example that suggests preventive actors can influence the practices of actors with a repressive frame. Even in this case, state (preventive) actors conducted the trainings, which once again contrasts with the German example and reinforces the argument that French NGOs are not fully integrated in the making of state measures against right-wing radicalism. From this section on preventive actors, an argument can be formulated. The political decision system in Germany is more open to civil society than in France, and political radicalism is framed as a policy. Both elements positively impact the development of non-state organisations, which implement preventive responses to right-wing radicalism, and their involvement in global policy-making against the radical right. French non-state actors, on the other hand, set the radical right on their agenda, but to a far lesser extent, and their impact in the decision-making process is very limited. The sudden emergence of preventive actors in Germany impacted the overall policy against right-wing radicalism: policy-making is shared between a greater number of public actors, each of whom has considerable impact on the outcome of responses to the radical right. This has helped preventive actors, especially non-state actors, influence political actors in their (repressive) policy decisions. As evidenced by the reform of the politically motivated statistic system, preventive actors can contribute to policy changes impacting the work of security actors. In the same vein, the influence of preventive actors may be indirect: the use of blockades and their success on the field has progressively led to more acceptance, at least in the political arena. The impact of preventive actors on the frame

180  Policy responses to the radical right of repressive actors is difficult to assess; I showed that in some circumstances such as cooperation projects, preventive actors could influence security actors, especially through interactions. In France, the policy-making process is characterised by greater compartmentalisation so that preventive actors, political actors, and repressive actors are less exposed and influenced by the policy frames of their counterparts. It is therefore not surprising that the influence of preventive actors on the decisions made by actors with a repressive frame is hardly perceptible.

Concluding remarks The aim of this chapter has been to identify the factors playing a significant role in the decision-making of responses to the radical right and to understand

Table 5.1  Factors influencing the decisions of policy actors in France and Germany Germany

France

Right-wing + radicalism framed as a policy issue

–

Openness towards civil society in the policy-making process

–

+

Weight of political + actors in the making of measures against right-wing radicalism

+/–

Weight of judges in + the decision-making of actors with a repressive frame

–

Consequences Collective decision-making: Decision-making (i.e. policy frame of security compartmentalised (i.e. strong authorities is constrained by influence of the policy frame the intervention of judges) in the decision-making of security authorities) Influential non-state actors on Few preventive measures against the orientations of preventive right-wing radicalism policy against right-wing radicalism Central role of political actors Central role of political actors in changing the policy mix of in the decision-making (and measures against right-wing potentially in the policy mix radicalism of measures against right-wing radicalism) of state actors if they decide to intervene

Policy responses to the radical right  181 under which circumstances policy changes may occur in the regulation of political radicalism. To this end, I assessed the impact of the framing of right-wing radicalism as a policy matter on actors’ decision-making. The role played by policy frames in the implementation process of measures against right-wing radicalism was also explored thanks to the evaluation of interactions between policy actors with different policy frames and of the role of these interactions in the decision-making process. I identify three main factors determining how policy actors make a decision when responding to right-wing radicalism (Table  5.1): whether right-wing radicalism is framed as a policy issue, the openness of policy-making to civil society, and the impact of actors with different policy frames on decision-making. This chapter explored the interactions between policy actors in order to determine the factors influencing decision-making on measures regulating right-wing radicalism. Chapter 6 will adopt a micro-perspective to examine decision-making regarding the proscription of associations. This case study is an attempt to assess the role of judges and actors from the political arena in the repression of rightwing radicalism.

Notes 1 This yearly demonstration has taken place since 1973; however, in 2016, the party’s leader, Marine Le Pen, announced that this tradition would be abandoned. 2 This considerable difference between 2013 and 2015 is explained by a mass influx of refugees and migrants in Germany. 3 Hoffmann-Riem (2010) listed, between 2000 and 2010, complaints of radical rightwing organisations before the Constitutional Court against demonstration bans, which were on average ten times as numerous as other complaints. 4 Gewerkschaft der Polizei is the most influential police trade union in Germany and belongs to the Deutsche Gewerkschaftsbund, a federation of eight significant trade unions from different professional branches. 5 Position Paper of the Gewerkschaft der Polizei – Bundesvorstand (01/01/2012, p. 4). 6 In 2001, a series of radical right-wing slogans were forbidden during a march in NorthRhine Westphalia. The Federal Constitutional Court (19/12/2007) condemned this limitation to the freedom of assembly. 7 The full version of the intelligence service’s report explaining why the AfD’s youth organisation and the grouping “Der Flügel” are going to be monitored is available at https://netzpolitik.org/2019/wir-veroeffentlichen-das-verfassungsschutz-gutachtenzur-afd/, last accessed on 30.09.2019. 8 It is noteworthy that after 2011 the sub-cultural radical right did not disappear in the area (François, 2011). On the contrary, a right-wing radical group, the “Nationalistes Autonomes Picards”, was established in the area. In addition, the département remains a popular place for the sub-cultural French radical right (François, 2014). 9 In this respect, Parliamentary Committees of Inquiry were set up at the federal level and in several Länder after the disclosure of the NSU network. Even in this context where security authorities were subjected to considerable political and media pressure, parliamentarians encountered difficulty getting information from the intelligence service and the State Protection Office. 10 This statement must be tempered somewhat, as the French state has devolved part of its traditional competences to non-state organisations in certain areas (e.g. for asylum seekers). 11 The title refers to the racist riots that took place in the small city of Hoyerswerda in 1991. These were the first right-wing motivated riots after reunification.

182  Policy responses to the radical right 12 Constituency work is a very important part of French parliamentary practices compared to other European countries (e.g. Rozenberg et al., 2011). Some MPs launched initiatives against the radical right, starting with their own constituency (Chapter 2). 13 An advocacy coalition is constituted of “people from a variety of positions (elected and agency officials, interest group leaders, researchers) who share a particular belief system (i.e. a set of basic values, causal assumptions, and problem perceptions) and who show a non-trivial degree of coordinated activity over time” (Sabatier, 1988, p. 139). 14 See the website which presents the exhibition: www.opfer-rechter-gewalt.de/, last accessed on 28.09.2019. 15 Rechtsextremismus? Nicht mit mir! Grundwissen und Handwerkszeug für Demokratie in Norddeutschland, URL: https://library.fes.de/pdf-files/dialog/09600.pdf, last accessed on 28.09.2019.

References Aden, H. (2016). Versammlungsfreiheit  – Zehn Jahre nach der Föderalismusreform. Entwicklungstrends und Verpasste Chancen. Vorgänge 213, 55(1), pp. 7–18. Aden, H. (2014). Einflussnahme oder Entpolitisierung? Menschen- und Bürgerrechtsorganisationen als Akteure der Sicherheitskultur. In: H.J. Lange, M. Wendekamm and C. Endreß (eds.), Dimensionen der Sicherheitskultur. Wiesbaden: Springer VS, pp. 235–250. Archambault, E. (1997). The Nonprofit Sector in France. Manchester: Manchester University Press. Bleich, E. and Hart, R. (2008). Quantifying Hate: The Evolution of German Approaches to Measuring ‘Hate Crime’. German Politics, 17(1), pp. 63–80. Bonelli, L. (2001). Les renseignements généraux et les violences urbaines. Actes de la Recherche en Sciences Sociales, 136–137, pp. 95–103. Cahuzac, Y. and François, S. (2013). Les Stratégies de Communication de la Mouvance Identitaire. Questions de Communication, 23(1), pp. 275–292. Cobb, R. and Elder, C. (1972). Participation in American Politics: The Dynamics of Agenda-Building. Boston: Allyn and Bacon. Cole, A. (2008). Governing and Governance in France. Cambridge: Cambridge University Press. Conradt, 1980. Changing German Political Culture. In: G. Almond and S. Verba (eds.), The Civic Culture Revisited. Boston: Little Brown, pp. 212–272. Conseil d’Etat (05/01/2007). Decision n° 300311. Dakowska, D. (2005). Les fondations politiques allemandes en Europe centrale. Critique Internationale, 24(3), pp. 139–157. Della Porta, D. (1995). Social Movements, Political Violence, and the State: A Comparative Analysis of Italy and Germany. Cambridge: Cambridge University Press. Federal Constitutional Court (26/06/2014). 1 BvR 2135/09 – Rn. (1–17). Federal Constitutional Court (04/09/2009). 1 BvR 2147/09 – Rn. (1–18). Federal Constitutional Court (19/12/2007). 1 BvR 2793/04 – Rn. (1–46). Federal Constitutional Court (14/05/1985). BVerfGE 69, 315. Fillieule, O. (2006). Du pouvoir d’injonction au pouvoir d’influence? Les limites de l’institutionalisation. In: O. Fillieule and D. Della Porta (eds.), Police et Manifestants. Paris: Presses de Sciences Po, pp. 85–112. Fillieule, O. and Jobard, F. (1998). The Policing of Protest in France: Toward a Model of Protest Policing. In: D. Della Porta and H. Reiter (eds.), Policing Protest: The Control of Mass Demonstrations in Western Democracies. Minneapolis: University of Minnesota Press, pp. 70–90.

Policy responses to the radical right  183 François, S. (2014). L’extrême droite et la violence. Le cas de la Zone Nord (Picardie et Nord/Pas-de- Calais). Espaces Marx Nord. François, S. (2011). Un cas récent d’absorption: l’exemple des gabberskins picards. Revue des Sciences Sociales, 46, pp. 96–101. Gewerkschaft der Polizei (09/07/2015). GdP bedauert Urteil des Bundesgerichtshofs zu Kuttentrageverbot. Press Release. URL: www.gdp.de/gdp/gdp.nsf/id/DE_GdP-bedauertUrteil-des-Bundesgerichtshofs-zu-Kuttentrageverbot, last accessed on 29.09.2019. Gewerkschaft der Polizei – Bundesvorstand (01/01/2012). Eine anhaltende Gefahr für die Demokratie umfassend bekämpfen: Rechtsextremismus. Position Paper. URL: www. gdp.de/gdp/gdp.nsf/id/p120209/$file/Rechtsextremismus_PositionspapierGdPFeb2012. pdf, last accessed on 29.09.2019. Grumke, T. and van Hüllen, R. (2016). Der Verfassungsschutz: Grundlagen. Gegenwart. Perspektiven? Opladen: Barbara Burdich Verlag. Gusy, C. (2006). Polizeirecht. Frankfurt/Main: Mohr Siebeck. Harcourt, B. and Ludwig, J. (2006). Broken Windows: New Evidence from New-York City and a Five City Experiment. The University of Chicago Law Review, 73, pp. 271–320. Heisterkamp, U. (2014). Think Tanks der Parteien? Eine vergleichende Analyse der deutschen politischen Stiftungen. Wiesbaden: VS Springer. Hoffmann-Riem, W. (2010). Versammlungsfreiheit für Rechtsradikale – Kapitulation des Rechtsstaats. In: G.F. Schuppert and M. Zürn (eds.), Der Rechtsstaat unter Bewährungsdruck. Baden-Baden: Nomos, pp. 87–105. Jaschke, H.G. (2000). Für eine aktivierte Bürgergesellschaft – Thesen zur Diskussion über Rechtsextremismus im Sommer 2000. Mainz: Landeszentrale für politische Bildung. Jaschke, H.G. (1993). Die “Republikaner”, Profile einer Rechtsaussenpartei. 2nd ed. Bonn: Verlag J.H.W. Dietz Nachf. Kelling, G. and Wilson, J. (1982). Broken Windows: The Police and Neighbourhood Safety. The Atlantic Monthly, 249(3), pp. 29–38. Kingdon, J. (1984). Agendas, Alternatives, and Public Policies. Boston: Little, Brown. Kleger, H. (2006). Toleranz und Tolerantes Brandenburg. Münster: LIT Verlag. Kohlstruck, M. (2013). Bürgernähe und Bürgerkontrolle schließen sich aus – Der Verfassungsschutz überspannt den Bogen. In: Weiterdenken – Heinrich-Böll-Stiftung Sachsen (ed.), Wer schützt die Verfassung? Kritik zu den Verfassungsschutzbehörden und Perspektiven jenseits der Ämter. Dresden: Heinrich Böll Stiftung, pp. 117–128. Koopmans, R. (2004). Protest in Time and Space: The Evolution of Waves of Contention. In: D. Snow, S. Soule and H.P. Kriesi (eds.), The Blackwell Companion to Social Movements. Hoboken: Wiley- Blackwell, pp. 19–46. Kopke, C. and Schultz, G. (2015). Abschlussbericht: Überprüfung umstrittener Altfälle Todesopfer rechtsextremer und rassistischer Gewalt im Land Brandenburg seit 1990. Potsdam: Moses Mendelssohn Zentrum. Liautaud, S. (2009). Accountability in the French Non-Profit Sector: From the Inside Out. London School of Economics: PhD. Mannheim, K. (1943). Diagnosis of our Time: Wartime Essays of a Sociologist. Trench, Trubner: Kegan Paul. Mestre, A. and Monnot, C. (2010). Manif à Chauny confrontée au retour d’une extrême droite adolescente. Le Monde. URL: http://droites- extremes.blog.lemonde. fr/2010/03/26/manif-a-chauny-confrontee-au-retour-dune-extreme-droite-adolescente/, last accessed on 29.09.2019. More, G. (1994). Undercover Surveillance of the Republikaner Party: Protecting a Militant Democracy or Discrediting a Potential Rival? German Politics, 3(2), pp. 284–292.

184  Policy responses to the radical right Piven, F. and Cloward, R. (1977). Poor People’s Movements: Why They Succeed, How They Fail. New York: Vintage. RFI (01/10/2016). La préfecture interdit à Calais toute manifestation pour ou contre les migrants. Press Article. URL: www.rfi.fr/france/20161001-prefecture-interdit-calaistoute-manifestation-contre-migrants, last accessed on 29.09.2019. Rhodes, R.A.W. (1988). Beyond Westminster and Whitehall: The Sub-central Government of Britain. London: Routledge. Rozenberg, O., Chopin, O., Hoeffler, C., Irondelle, B. and Joana, J (2011). Not Only a Battleground: Parliamentary Oral Questions Concerning Defence Policies in Four Western Democracies. The Journal of Legislative Studies, 17(3), pp. 340–353. Rucht, D. (1994). Modernisierung und neue soziale Bewegungen. Deutschland, Frankreich und USA im Vergleich. Frankfurt/New York: Campus. Sabatier, P. (1988). An Advocacy Coalition Framework of Policy Change and the Role of Policy-Oriented Learning Therein. Policy Sciences, 21(2/3), pp. 129–168. Scharpf, F. (1997). Games Real Actors Play: Actor-Centered Institutionalism in Policy Research. Boulder: Westview Press. Sturm, S. (2014). Blackwurst und Blockade. Zivilgesellschaftliche Protestformen und die Krise extremrechter Demonstrationspolitik. Überblick – Zeitschrift des Informations- und Dokumentationszentrums für Antirassismusarbeit in Nordrhein-Westfalen, 20(2), pp. 4–9. Tanguy, G. (2015). Le préfet dans tous ses états. Une histoire de l’institution préfectorale est-elle (encore) possible? Histoire@Politique, 27(3), pp. 124–145. Ullrich, P. (2012). Videoüberwachung von Demonstrationen: Beweise zu ihrer Wirkung. Infobrief Republikanischer Anwälterinnen und Anwälteverein e.V., p. 107. Ullrich, P. and Wollinger, G. (2011). Videoüberwachung von Versammlungen und Demonstrationen – Blick auf einem verwaistes Forschungsfeld. In: N. Zurawski (ed.), Überwachungspraxen – Praktiken der Überwachung: Analysen zum Verhältnis von Alltag, Technik und Kontrolle. Opladen: Budrich, pp. 139–157. Virchow, F. (2011). Die Demonstrationspolitik der extreme Rechten im Bundesgebiet und im Land Brandenburg. In: C. Kopke (ed.), Grenzen der Toleranz – Das Brandenburger Modell zur Bekämpfung des Rechtsextremismus. Potsdam: Universitätsverlag Potsdam, pp. 83–102.

6 Banning right-wing extremist associations in France and Germany Decision-making process and outcomes

Whilst Chapter 4 identified different policy frames among policy actors, Chapter 5 determined the impact of interactions amongst actors with different frames on the decision-making process. In those chapters, I emphasised the prominent role of political actors in both countries and the role of judges in Germany and showed that, by contrast, the involvement of judges was hardly visible in the French case. In order to comparatively assess the influence of judges in the enforcement of repressive measures against the radical right, I will now focus on a widely used militant democratic instrument: the banning of right-wing extremist1 associations. This instrument has a powerful symbolic role, for it is a measure traditionally undertaken by political actors which strongly affects the freedom of assembly. Association bans do not receive as much attention as party bans2, probably because they are not as detrimental to democracy, and, yet, they are used more often by governments (see Chapter 2). Retracing the process leading to the proscription of right-wing extremist associations is therefore a way to explain why this militant democratic instrument is used in stable democracies. The policy frame of individual political actors will be thoroughly assessed in this chapter, as well as their role in the decision-making process. It should be recalled that Chapter 4 did not seek to identify a policy frame among actors from the political arena, as their perceptions and interests may strongly vary. This hardcase study at the micro-level allows me to explore the perceptions and interests of individuals with a political function. In addition, the analyses of Chapter 5 suggested that the interactions occurring between actors with a different policy frame impact the decision-making process, especially in Germany where the interdependence between actors is stronger than in France. Here, it is necessary to find a method to explore the decision-making process leading to the enforcement of the ban. To this end, I  used the process-tracing method, which “contributes both to describing political and social phenomena and to evaluating causal claims” (Collier, 2011, p. 823). The strength of this method is to enable the identification of complex causal mechanisms in a specific empirical outcome, here the bans. Causality is considered as the result of a process with a series of interactions and mechanisms leading to a specific outcome. Process-tracing analysis with a withincase focus is a widely recognised approach, and the method of process-tracing

186  Banning right-wing extremist associations can be opened to comparative designs (Maillet and Mayaux, 2018): a comparative application of process-tracing helps to define more precisely than single-case studies the scope conditions under which a mechanism is expected to work. There are three variants of process-tracing: the first seeks to test a theory empirically, the second intends to build a theory, whereas the third one attempts to explain the specific outcomes (Beach and Pedersen, 2013). As this book intends to highlight the factors driving the creation of policy against the radical right, the aim of this process-tracing analysis is to help develop a theory. In combination with a comparative design, I  use theory-building process-tracing to analyse “cases, where the focus is on detecting either omitted causal conditions that together with X are necessary to be present in order to trigger the causal mechanism” (Ibid., p. 23). Before going further in the operational details of the analysis, a few words need to be said on the comparative aspect of the analysis. As illustrated in Table 6.1, two cases will be examined in France: the ban on five right-wing extremist associations3 in July 2013, and that of a one-man show of a controversial comedian, Dieudonné, following his anti-Semitic statements in January 2014. In Germany, two bans will be investigated: the collective ban on three right-wing extremist

Table 6.1  French-German case study Country Empirical cases

Outcome

FR

Ban on a series of five rightwing extremist associations

Référé: Administrative Why did the ban Same outcome partly fail in but different decision upheld one case and process? Ruling: Decision succeed in the partly repealed, other case? ban on “Envie de Rêver” repealed

FR

Bans on a one-man Référé: Administrative show decisions upheld Ruling: Decisions upheld

DE

Ban on the rightAdministrative wing extremist decision upheld association “Widerstandsbewegung Südbrandenburg” (Brandenburg)

DE

Ban on a series of three rightwing extremist associations (North-Rhine Westphalia)

Administrative decision upheld

Within-case approach (section 2)

Why did the bans succeed?

Cross-case approach (section 3)

Banning right-wing extremist associations  187 associations4 on 23rd August 2012 by the Minister of the Interior in North-Rhine Westphalia, and the ban on the right-wing extremist network “Widerstandsbewegung Südbrandenburg” on 19th June 2012 by the Minister of the Interior in Brandenburg. The cross-case aspect was used in determining the case selection, as it was necessary to choose cases with a comparable institutional process. I also made sure that the national comparison would be temporarily relevant and chose four bans enforced in a limited time frame. In all cases, the actors from the Ministries of the Interior intervened before issuing the ban, and administrative law judges intervened after the ban was issued. In the German case, the decisions were all upheld by the Court. In France, the proceedings were different. The administrative law judges made two decisions: one directly after the decision was made by the government in a référé (urgent appeal) and another one months after the initial administrative decision in a regular administrative ruling. The administrative judge upheld both decisions during the urgent appeal. However, judges repealed the proscription of one right-wing extremist association in their ruling. The within-case comparison will determine how the German decisions were upheld by the Court, which is a regular pattern since most bans against right-wing extremist groups since 1990 have been allowed. In the French case, I will question the mechanisms leading to an effective ban or the repeal of the decision. The cross-case analysis will provide an opportunity to retrace the processes occurring in cases where there is a similar outcome. In so doing, the French-German comparison allows me to address the issue of equifinality. I assume that similar outcomes (effective bans) may hide different mechanisms and should help highlight the different logics behind the repression of right-wing radicalism in France and Germany. In the process-tracing analysis, a first step is to detect the mechanisms that create a relationship between X and Y. In all cases under scrutiny, X is the proscription. Y is the upholding or repeal of the administrative decision according to the cases. The aim is to identify the logics binding X and Y. The analysis begins with a narrative, which retraces the sequences leading to the effective banning of associations and of a one-man show. In the process-tracing method, the narrative introduces the variables, which have a strong explanatory value and are defined beforehand. This approach is compatible with Scharpf’s analytical framework, which states that policy research requires a “backward looking” strategy where one looks for “explanations of particular policy choices” (Scharpf, 1997, p. 25). In the narratives, I focus on elements defined in previous chapters as important to understanding policy-making: the frame of both Ministers of the Interior and administrative law judges as well as their interactions. In order to do so, it was necessary to “examine histories, archival documents, interview transcripts” (George and Bennett, 2005, p. 6). In the French case particularly, decisions are often succinct. Interviews with central actors of the decisions were necessary to compensate for the consequent lack of information and are summarised in Table 6.2. How considerable are the influence of policy frames and the interactions between judges and actors from the political arena on the outcome? The processtracing is expected to help me evaluate whether these factors can explain why

188  Banning right-wing extremist associations Table 6.2 Interviews conducted in France and Germany on associations’ bans France

Germany

Minister of the Interior’s staff: 2

Minister of the Interior’s staff: 3 in Brandenburg, 3 in North-Rhine Westphalia Member of the higher Administrative Court of Berlin-Brandenburg who played a direct role in the decision-making process: 1 Total: 7

Members of the Conseil d’Etat who played a direct role in the decisions: 3 Another member of the Conseil d’Etat: 1 Total: 6

some bans succeed and others fail. Previous chapters first showed that a policy actor’s frame plays a decisive role in the decision-making process. Therefore, the narrative will assess the frame of ministers deciding on association bans as well as the frame of the administrative law judge who reviews the ban.

Delivering a ban order: French and German narratives French narrative Context The event that triggered the banning of five associations in June 2013 was a violent fight on 5th June  2013 in a Paris street between anti-fascist and skinhead groups. An 18-year-old anti-fascist activist, Clément Méric, died after having been punched in the face by a skinhead. A range of political actors reacted to this event by condemning Méric’s death. Subsequently, gatherings were organised in several French cities to pay respect to the victim. Quickly, the idea of proscribing right-wing extremist groups responsible for Méric’s death emerged in public discourse, which was widely covered by the media. A day after the death of Méric, the incumbent Prime Minister, Jean-Marc Ayrault, called on its services to explore all legal options to proscribe the associations. A consensus emerged within political parties (with the exception of the Rassemblement National) that the right-wing extremist groups involved should be outlawed. The department of public liberties and legal affairs within the Ministry of the Interior evaluated the feasibility of proscribing a series of groups. The groups, “Jeunesses Nationalistes Révolutionnaires” (JNR) and “Troisième Voie”, under the leadership of Serge Ayoub, were on the front line since it had been discovered that some of their members had close links with Méric’s aggressors. Concerning the ban on Dieudonné’s one-man show, the trigger event is less identifiable. In the early 2000s, the French comedian became a controversial figure because of his close ties with the openly anti-Semitic French radical right (Jobard, 2017, p.  102). Since 2007, he has been condemned several times by criminal justice for anti-Semitic statements. Prior to the decision to ban Dieudonné’s popular show, the incumbent Minister of the Interior, Manuel Valls, and

Banning right-wing extremist associations  189 Dieudonné shared harsh exchanges. Valls, a regular political target of the antiSemitic radical right, responded during the summer school of the Socialist Party in 2013 with a speech insisting on the necessity to continue the struggle against anti-Semites such as Dieudonné. The controversy between Dieudonné and state authorities is not limited to exchanges with the incumbent Minister of the Interior, as mayors and prefects regularly tried to ban his shows between 2004 and 2014. These attempts remained unsuccessful. The ban under examination here is embedded in a context of tension between public repressive authorities and the comedian. Since autumn 2013, French press related the growing popularity of the so-called quenelle salute, a supposed anti-system gesture introduced by Dieudonné and resembling a reverse Nazi salute. The meaning of the quenelle is left open to interpretation; however, this gesture is perceived by numerous actors, including anti-racist associations, as a popular symbol spreading anti-Semitism in France. In autumn 2013, the International League against Racism and Anti-­ Semitism (LICRA) addressed a letter to the Ministers of Defence and of the Interior identifying the quenelle as a reverse Nazi salute, and therefore denouncing the use of this gesture. Another major event is the documentary film broadcast on the public television channel France 2, where anti-Semitic excerpts from Dieudonné’s new show were aired, triggering renewed controversy in December 2013. At the same time, Dieudonné heated up the media debate when he publicly announced that he was pressing charges for defamation following the accusation that the quenelle was an anti-Semitic gesture. Shortly before Christmas, the salience of anti-Semitism progressively increased in French media. Towards the ban Moving back to the ban on a series of associations following the death of Clément Méric, during the aforementioned debates, which occurred in the media as well as in the Parliament, the Minister of the Interior and his staff were put under pressure to find legal means in order to ban the associations. Usually, the preparation of ban orders occurs at the Department for Public Liberties and Legal Affairs, under the leadership of the Minister of the Interior and his cabinet. Since these orders are often appealed by the outlawed associations,5 the minister’s legal advisors are expected to prevent the decision from being repealed by the Administrative Court. On 12th and 25th July 2013, a few weeks after the death of Clément Méric, the order was signed by the President of the Republic, the Prime Minister, and the Minister of the Interior and sent to the representatives of the five associations banned. In Dieudonné’s case, the Minister of the Interior decided with his political cabinet in late December 2013 to ban the show and subsequently sent police to collect evidence of the comedian’s anti-Semitic statements. After the collection and the evaluation of information, the minister released a public statement concerning Dieudonné on 27th December  2013 announcing that his services were evaluating the legal possibility of a ban on Dieudonné’s show, on the grounds of the proliferation of attacks against the memory of the victims of the Shoah.6 The

190  Banning right-wing extremist associations communiqué raised antagonistic reactions in the public debate. Whereas opinion was virtually unanimous following Méric’s death, reactions from civil society over the opportunity of banning the show of a very popular comedian diverged. Heated debates emerged, first in the press, from political actors and progressively amongst academics. After the end of the traditional Christmas holiday, a circular from the Ministry of the Interior was issued to all prefects in France on 6th January 2014, who were asked to encourage mayors to proscribe the show, which was planned in several French cities. Circulars are not enforceable; yet, they strongly contribute to the circulation of political orientations among public administration. On 7th January 2014, the prefect of the Nantes area released a proscription order banning Dieudonné’s show in the city, which was planned for 9th January. Likewise, the mayor of Tours banned Dieudonné’s show on 7th January 2014. Finally, Dieudonné’s show was also banned by the mayor of Orléans on 9th January 2014. Appealing the ban Regarding the ban on five right-wing extremist associations, the proscription orders were appealed and eventually landed in the highest administrative court, the Conseil d’Etat. In the French legal system, an instrument called référé liberté allows litigants to appeal a decision if they believe it infringes on their fundamental freedoms. The référé is an urgent appeal, which means that a single judge7 has 48 hours to decide whether the decision manifestly infringes on the fundamental freedoms of the applicant. Following this evaluation, the judge issues an interim order, which can suspend the administrative decision. In the cases under study, a judge from the Conseil d’Etat rejected the appeal, hence upholding the ban until the trial, when several administrative law judges would make a final decision on the substance of the case (regular ruling). The ban on Dieudonné’s show in Nantes, issued on 7th January  2014, was appealed by the comedian. The référé procedure took place at the administrative appeals court in Nantes. The administrative law judge repealed the decision on 9th January 2014 at 2 pm. The Ministry of the Interior immediately appealed the judge’s decision, and the President of the litigation section of the Conseil d’Etat confirmed the repealing of Dieudonné’s ban at 6:30 pm, after a 1.5-hour hearing. The administrative law judge, however, held that public order can be substantially troubled on account of a violation of human dignity, which justifies the proscription of an artistic performance. Likewise, the decision made by the mayor of Tours on 10th January 2014 to ban Dieudonné’s show was appealed, and the Administrative Court of Tours confirmed the mayor’s ban. Dieudonné’s production company appealed the justice’s decision before the Conseil d’Etat, and another administrative law judge confirmed the administrative ban on the show in Tours.8 The same procedure occurred for Dieudonné’s show in the city of Orléans and concluded in a similar fashion.9 Following this series of orders, the comedian abandoned his show, Le Mur, and wrote another one, which was eventually allowed. Finally, a third phase of the judicial review occurred a year later in both ban orders. In July and December  2014, administrative law judges of the Conseil

Banning right-wing extremist associations  191 d’Etat adjudicated on the associations’ bans. The decision on “Envie de Rêver” was repealed because this association did not have as its sole purpose to enable the activities of the other proscribed groups, which had been falsely alleged in the administrative decision. Regarding Dieudonné’s show, the rulings released in 2016 refused to allow compensations for the financial losses generated by the cancellation of the show. German narrative Context Since 2006, Brandenburg has struggled with the right-wing extremist movement “Spreelichter”, whose modus operandi consisted of demonstrations at night with torches and chanting right-wing slogans. Non-governmental activist structures and the intelligence service had already noticed the appearance of a well-­ structured group in the region of Spreewald (South Brandenburg) in 2006. Until 2011, the actions of the network, from property damages to propaganda crimes, were consequently prosecuted. However, from 2011 the activists developed a series of websites to spread their ideology across the country. Right-wing extremist actions such as the conspiratorial night marches spread throughout Brandenburg and to other Länder. As these demonstrations were unregistered, the police forces could not anticipate them. Moreover, they featured masked activists who spent no more than 20 minutes on the streets with their torches. The police deployment systematically arrived too late and could not intercept the leaders of these marches. The Brandenburg Office for the Protection of the Constitution integrated the group to its annual report in 2011. Similarly, several NGOs in Brandenburg sent out alarm signals. A broad alliance against right-wing radicalism was formed in the Spreewald region in 2008. In 2011, the NGO Exit issued a publication (Wagner et  al., 2011) providing well-informed analyses about the Spreelichter network. Large regional NGOs such as the Aktionsbündnis Brandenburg similarly discussed the activities of the Spreelichter network in their annual plenum. Media interest on these events increased in the beginning of 2012 since these demonstrations recalled the memory of National Socialist demonstrations (e.g. SA demonstrations during the Weimar Republic). In the meantime, the existence of the right-wing terrorist network NSU was unravelled in November 2011, putting the issue of right-wing radicalism on the agenda. As a matter of fact, these demonstrations became a federal matter discussed in the newly formed federal office against right-wing violence (Gemeinsame Abwehr gegen Rechtsextremismus). However, until the enforcement of the ban on Widerstandsbewegung Südbrandenburg by the police, and contrary to the French case, the debates were not solely focused on the necessity of proscribing the movement. Concerning the bans in North Rhine-Westphalia (NRW), I will primarily focus on the case of Nationaler Widerstand Dortmund, which is the case that largely motivated the series of bans. First, there is a history of citizen mobilisation against right-wing radicalism in this city; likewise, the press frequently reported

192  Banning right-wing extremist associations on the activities of right-wing extremist groups, which was soon identified as a hotspot for right-wing radicalism. Since 2007, the City Council has created a coordination office, run by non-state actors, in order to support initiatives against right-wing radicalism, which illustrates that municipal authorities are aware of the problems triggered by right-wing extremist activities. Like in Brandenburg, academic studies were conducted by authors who examined the activities of the groups, questioning their structures and organisation (e.g. Heitmeyer et al., 2009; Borstel, Luzar and Sundermeyer, 2011). The issue of right-wing violence has become crucial for state authorities since one of the murders carried out by the NSU network occurred in Dortmund. This preoccupation is reflected by the annual report of the NRW Office for the Protection of the Constitution for the year 2011, in which Ralf Jäger, the incumbent Minister of the Interior, underlined the importance of right-wing radicalism on his personal agenda. On 22nd December  2011 he issued a series of mostly repressive measures against right-wing radicalism. Following his report, the Dortmund police forces became more active against right-wing extremist activities than they previously had been. In January 2012, the chief of the Criminal Police in Dortmund created a particular unit with additional staff in charge of specifically targeting right-wing groups specifically. Stop and search operations and prosecution of offences against the rightwing activists increased. Other police departments in NRW such as in Cologne, Wuppertal, and Aachen created specific units to repress right-wing groups. The Ministry of the Interior eventually banned the neo-Nazi group, “Kameradschaft Aachener Land” in August 2012, along with “Nationaler Widerstand Dortmund” and the “Kameradschaft Hamm” (in Hamm, a city close to Dortmund). This turn of events suggests that there might be a correlation between the launching of specific police units and subsequent bans. But as in the Brandenburg example, there was no clear indication in July 2012 of an imminent ban on right-wing extremist groups in NRW. Ban orders On 11th June 2012 in Brandenburg, the Ministry of the Interior issued a ban order to the right-wing extremist association Widerstandsbewegung Südbrandenburg. Civil society and political parties represented in the Brandenburg Parliament10 welcomed the ban. At 60 pages, the ban order is much longer than those issued in France, which are typically only one page long. In it, different aspects defending the ban are developed: the aim of the association to spread the National Socialist ideology, which contests the democratic order, a description of the digital strategy of the structure, the presentation of material elements enabling the ban such as content analysis of online articles or brochures published on the association’s websites, descriptions of connections with other right-wing extremist groups, propensity to conspiracy and violence, attempts to recruit new members with anti-constitutional actions, and, finally a list of the delicts with a right-wing motive that were carried out by members of the association. The accumulation of anti-constitutional and criminal elements is what allowed the Ministry of the

Banning right-wing extremist associations  193 Interior to proscribe the organisation. This is how 27 members of the organisation Widerstandsbewegung Südbrandenburg received on 19th June  2012 the official ban: over 200 police officers carried out a raid at members’ homes in order to seize the association’s belongings and to shut down their websites – in the German case, police searches of key members’ domiciles are part of standard protocol following an association ban. This helps state actors kill two birds with one stone: paralyse an association and start prosecution cases from the findings of the police searches. Regarding Nationaler Widerstand Dortmund, the jurists in charge of drafting the ban needed three months to prepare the decision. There were numerous exchanges between the Ministry of the Interior and the police as well as the intelligence service in order to evaluate whether it was possible to ban Nationaler Widerstand Dortmund based on the evidence gathered by the different departments. The decision that was issued on 10th August  2012 is a 62-page document which follows the same structure as the Brandenburg example. The group’s regular attempts against the constitutional order are cited as the first justification for their ban. The occurrence of violence is the second. Specifically, a series of offences carried out by members of the association are listed: some of the offences presented occurred in the first six months of 2012, which shows that the operations conducted by the police department specialised in tracking right-wing offences were used in the production process of the ban. On 10th August 2012 the administration decision was issued to 62 members of the association, and at the same time two other associations were proscribed, the aforementioned Kameradschaft Aachener Land and Kameradschaft Hamm. The date of the ban is significant, as each year, a demonstration is organised by right-wing extremist groups in Dortmund to celebrate the International Day of Peace (Antikriegstag) on 1st September which attracts radical right-wing groups from all over Germany. Considering that Nationaler Widerstand Dortmund, one of the main organisers of the protest, was henceforth banned, the Minister of the Interior gave the police the opportunity to proscribe one of the biggest social events of the neo-Nazi scene in Dortmund. Decision of the administrative courts Echoing the French case, the bans were appealed by the leading members of Widerstandsbewegung Südbrandenburg. Administrative judges pronounced a decision in November 2013, more than one year after the administrative decision to ban the association. The hearing occurred on 20th November  2013, and a senate of five judges decided on the case and issued a 38-page decision validating the administrative ban on Widerstandbewegung Südbrandenburg. Regarding the decision on the legality of Nationaler Widerstand Dortmund’s ban, five judges of the Highest Administrative Court of Münster issued a ruling11 on 30th December  2014 in which the association’s ban was confirmed. The representatives of National Widerstand Dortmund appealed the decision before the Federal Administrative Court, which was similarly rejected12 on 7th July 2015.

194  Banning right-wing extremist associations

The French case: political use of a law instrument Building on the French narrative, I will first discuss the articulation between the intentions of political actors to repress right-wing radicalism and the use of a repressive law instrument. Second, exploring the judges’ decision-making will help to understand the mechanisms behind the implementation of a ban. Political decision: frame and temporality Policy frame of the Minister of the Interior The policy frame of political actors was not thoroughly examined in previous chapters. Considering that the executive branch is greatly involved in ban procedures against right-wing extremist groups in France, it is instructive to explore the policy frame of the Minister of the Interior who initiated the procedures in the cases under analysis here. This exploration will shed light on why the Minister is at the origin of two repressive procedures against the radical right and will enable an assessment of the role of ideas in the procedure. The 1936 dispositions allowing the proscription of political associations empowers the executive branch. The law was thought of as a means at the disposal of the government in order to maintain public order in times of political crisis. As shown in Chapter 3, this legal tool, still perceived as an anti-fascist measure, has been used in France to repress some groups belonging to the radical right. Put differently, this is one of the rare instruments at the disposal of the government which allows political actors to target radical groups for their ideology. On this point, a cabinet member of the incumbent Minister of the Interior explained in an interview the Minister’s intention to use the association’s ban because “this is an instrument full of historical meaning. . . . When you look at the list of banned organisations, you find the great political struggles with proscriptions after World War II, then violent groups, which were banned in the 1970s, and finally, the new challenges of terrorism since the 1980s”. This excerpt shows that associations bans are perceived by political actors as an instrument used for political battles, which is in line with the French frame according to which addressing political radicalism is first and foremost a political matter. When looking at the different bans against right-wing extremist associations in the last decades, one notices that the government mostly acts under political pressure. For instance, the association Unité Radicale was banned in 2002 after the attempted assassination of President Chirac by Maxime Brunerie during the 14th July military parade, a right-wing extremist supporter who had contact with Unité Radicale. In the case of bans after Méric’s death, the narrative showed that a large part of the political spectrum set the issue on the parliamentary agenda. In this instance, the decision of the government was particularly dependent on the eventual pressures exerted by his political peers. Moreover, a few elements regarding the incumbent Minister of the Interior’s interests can help elucidate his motivations to initiate procedures to ban right-wing extremist groups. The history of the Socialist Party (see Chapter 2) to which Valls

Banning right-wing extremist associations  195 belongs proves relevant in this matter. The Socialist Party was composed of several of the founders of the anti-racist association SOS Racisme, which emerged during the 1980s when the Front National (FN) experienced its first electoral success. For instance, MP Jean-Christophe Cambadélis became active against the FN and launched a network against the radical right party. Basically, the 1980s in the Socialist Party were marked by the institutionalisation of a political struggle against the FN, enabling the left-wing party to strike a chord for the commitment against right-wing radicalism. This orientation acts as a reminder of the party’s anti-fascist duty, which has strong symbolic power because it recalls the French Resistance and ultimately aims at uniting the left-wing camp (Brustier and Escalona, 2015). This issue became particularly sensitive after the traumatic failure of the incumbent Socialist candidate, Lionel Jospin, to qualify for the run-off of the presidential elections in 2002. The danger represented by the FN was often invoked by representatives of the Socialist Party, especially by Manuel Valls who worked for Jospin, to encourage the union of the left. Another position defended by mainstream parties in France, mainly by the Socialists and the Conservatives, concerns the historical proximity between state institutions and certain anti-racist associations such as SOS Racisme or the LICRA. In the last decade, these associations vocally insisted on the pre-eminence of combatting anti-Semitism (Hajjat and Mohammed, 2016) in a political context marked by an increasing number of attacks with anti-Semitic motives provoked by renewed tensions in the Middle East. It is reasonable to argue that the political culture in which Valls evolved shaped his perceptions of right-wing radicalism. These elements resonate with the following statement of the member of Valls’ ministerial cabinet: [He] was always sensitive to hate speech. As soon as he arrived here, he wanted to fight the extreme right and Dieudonné, who was already a target. Besides his political culture, Manuel Valls also developed a political interest in repressing Dieudonné: as mentioned earlier, he became involved in a dispute with the comedian through indirect verbal attacks by the end of 2013. He had a personal and political interest to react. Banning right-wing groups and an antiSemitic show could serve Valls’ political ambitions, namely, his desire to appear as an active minister committed to democratic values. Finally, a member of his political cabinet asserted in an interview that the decision to react to Dieudonné’s anti-Semitic stances was “a response to convictions which are symbolic. Dieudonné had already been sentenced several times but never went to prison. Yet, the Press Act provides prison sentences”. This statement suggests that proscribing political associations is a way for the government to contradict French criminal justice, whose mild sentences, in this respondent’s view, did not succeed in containing Dieudonné’s hate speech. In other words, it is a way to politicise the issue of the repression of right-wing radicalism in a country where fighting political radicalism is first and foremost a political matter. In sum, Valls’ frame towards the radical right has been shaped by a series of historical and political elements and personal interests that contribute to his decision to use repressive measures against the radical right.

196  Banning right-wing extremist associations Temporality and decision of the Minister Why did the Minister of the Interior decide to ban associations and a one-man show at this moment in time? How can the question of temporality shed light on the ban process? Tackett (2015), who traces the reasons for the wave of violence during the French Revolution, emphasises that “ideology or circumstances are generally conceived as outside forces that exerted influence upon revolutionary actors” (Shapiro, 2015, p. 1978). Instead, the circumstances should be considered as part of the logic leading to the outcome (here, of revolution; in our case, of a ban). Temporality has different aspects (Grzymala-Busse, 2011, p. 1269 ff.). First, there is “duration”, the “temporal length of an event” which distinguishes shortterm from long-term outcomes. Second, there is “tempo”, “the amount of change per unit of time”, which limits in certain cases the “deliberation and consultation”. Finally, there is “timing”, the “position on a temporal timeline”, which “affects which sequence can unfold” based on the costs and benefits of the strategies chosen by actors. The temporal aspect of the minister’s decision-making is important to understanding how and when the ban order was released. Regarding the proscription of five associations during the summer of 2013, the narrative highlights a temporal sequence with a rapid tempo between the fight that led to Clément Méric’s death on 5th June 2013 and the government’s publication of two orders banning rightwing extremist associations on 12th July and 25th July  2013. Facing intensive media coverage and political pressure with the outbreak of violence ending with the death of an activist, different members of the government reacted: the Prime Minister held a discourse in the Parliament, and a few days later the Minister of the Interior notified the members of five right-wing extremist associations that their structures were about to be proscribed. The rapid tempo provoked by the sudden death of Clément Méric, which triggered numerous reactions from a myriad of actors from different spheres, forced the government to set the issue on the agenda and to promptly react. In the case of Dieudonné’s show, a different aspect of the temporality emerged in the narrative. Whereas Clément Méric’s death was a violent and highly publicised event that therefore provoked quick action, the case of Dieudonné is characterised by a slow tempo: the Minister of the Interior did not decide until shortly before the Christmas holiday to react to Dieudonné’s anti-Semitic remarks, which had been reported to him since the summer. Aside from his personal animosity towards the comedian, several elements incentivised the formulation of a repressive response. To begin with, the timing chosen is revealing: the minister chose to publicly address the issue at a time when there is traditionally a break in political activity. At the same time, Dieudonné was about to start his tour in France and his shows had never been banned before, which meant there was a high risk of seeing another ban repealed by administrative means. Yet, the Ministry of the Interior was not entitled to ban the show himself. This means that further actors needed to be convinced that Dieudonné’s show had to be banned by legally entitled local actors, mayors, and prefects. For this reason, the Minister of the Interior issued a

Banning right-wing extremist associations  197 circular letter encouraging such bans.13 The Minister of the Interior also demonstrated his communications skills by intervening publicly during the Christmas break, thus triggering massive media coverage of the issue. In this sequence, the Minister of the Interior set the tempo and aimed to provoke a repressive reaction from local actors. The decision to ban an event or an association is necessarily a political one in France. Temporality does not directly contribute to the repressive decisions, but political actors, mainly the Minister of the Interior, may act with fortuitous timing to trigger a decision, which is in both cases a short-term decision thought of as a response to right-wing radical offences. The decision is explained by the existence of an external pressure (e.g. a violent event or a succession of complaints from non-state actors) and a political policy frame characterised by a tendency to intervene against right-wing radicalism. Administrative law judges as veto players? Administrative law judges are likely to be veto-players, defined as individuals or collective actors whose agreement is necessary for a change of the status quo (Tsebelis, 1999). In both of the cases under consideration in this chapter, maintaining the status quo meant suspending (and then repealing) the administrative decisions, thus compelling political authorities to use other policy instruments to repress right-wing extremist groups. In the case of the association bans, the status quo was upset when the administrative law judge did not suspend the ban during the urgent appeal. However, in the ruling a year later, administrative law judges repealed the ban on Envie de Rêver, keeping the status quo. In Dieudonné’s case, the administrative law judge changed the status quo by not repealing the ban. One element required to assess the influence of veto-players (administrative law judges) in the repression of right-wing extremist groups is to identify their preferences and assess how they articulate them to make actual decisions. Référé procedures and judicial decisions In Chapter 4, I identified the policy frame of administrative law judges as characterised by a constant balance between repressive and liberal decisions. I also outlined that their decision-making process was strongly dependent on the conditions allowed by the legal rules. Latour (2010), in his ethnography of the Conseil d’Etat, explains that the decision process of the administrative law judges is based on a written procedure whereby the significant corpus of legal precedents progressively absorbs the case under scrutiny, and on collegial decision-making whereby constant attention is paid to the consistency of administrative jurisprudence. Latour’s study does not, however, address decision-making in the context of a référé. The specificities of référé procedures, which were introduced in 2000, need to be assessed in order to determine whether they influence the practices of administrative law judges. How do administrative law judges of the Conseil

198  Banning right-wing extremist associations d’Etat compensate their loss of markers? A state councillor, president of one of the chambers of the Conseil d’Etat, argues: What was new was not only the emergency but also the fact that we were suddenly giving decisions alone, and the oral proceedings too. I have to say that we manage it thanks to orality. There is also a sort of collegiality in corridors. When you sign an order alone, you talked about it with other judges.  .  .  . Orality helps a lot because people are here, we press the parties involved. . . . In the end, we rely on our inner conviction and not only on legal reasoning. This excerpt outlines that judges reconstitute collegiality in a more informal way and find help in orality. But most importantly, the respondent underlines the importance of convictions in reaching the final decision, implying that legal reasoning is useful up to a certain point during an urgent appeal. Judges only reject administrative decisions which are manifestly unlawful during référé. The same respondent underlines that “manifest illegality is blatantly obvious. . . . The référé is a less strict proceeding than the recourse for misuse of authority [i.e. ruling]”. Judges pay less attention to legal details during an urgent appeal than in regular procedures. This practice de facto favours the administrative decision in the course of a référé. Administrative justice and the executive Research in sociology of law outlines the ambivalence of powers devolved to the Conseil d’Etat: whilst one section of the Conseil d’Etat is the highest administrative court in France, another advises the government. In addition, state councillors are administrators who alternate their entire career between ministries or the private sector and the Conseil d’Etat, where they work as administrative law judges – this provides the corps of state councillors with powerful networks among French administration and politics (Kessler, 1968; Chatriot, 2008). State councillors were suspected of being too politicised, especially during the 1980s (Lochak, 2007). Although these controversies progressively died down as the court lost power to other (especially European) judges, judges of the Conseil d’Etat must nonetheless strike a balance between two conflicting positions in order to guard against criticism. On the one hand, as they usually maintain close ties to the political milieu throughout their career, judges must be careful to seem impartial and uninfluenced by politics. On the other, if they pronounce their own point of view too strongly, irrespective of the existing political orientations, judges may be accused of wanting to govern (judicial activism) – a damaging criticism in the country of Montesquieu, where judges do not play nearly as central a role in the regulation of public policies as they do in Germany. The perceptions of state councillors of their institution and position within the state’s architecture illustrate how the power of the state is regulated in France: Our existence is based on affinity. . . . I was a legal advisor in many ministries, so I know how that works. And we exist . . . because we know public

Banning right-wing extremist associations  199 administration very well. Knowing how it works means that sometimes we accept some situations for the sake of administrative realities; judges without any connection to administration may condemn these situations. But in some other cases, it means that we are not convinced by fictitious arguments produced by the administration because we know perfectly well that it is nonsense. . . . You need a judge who is in the system to regulate it. You do not regulate a system you know nothing about, and you certainly do not regulate a system from the outside. . . . My job is not about law, really. It’s about policing the administration and in order to do that, I need public law. My job as a judge is not to develop legal frameworks. (interview conducted with a chamber president of the Conseil d’Etat) A strong state like ours is probably better controlled by a legitimate institution within public administration, which is by the way the first corps [of the French state], which may impose more limits to the administration than an external justice court. (interview with the President of the litigation section of the Conseil d’Etat) Both respondents defend and value the inextricable relationship between public administration and their institution. They also defend the idea that the regulation of administrative decisions relies not only on law but also on myriad personal knowledge of administrative practices, largely built on past experiences. The central idea is that administrative law justice needs to enjoy legitimacy amongst the administrative actors in order to impose its decisions. Does that feature limit the veto-player’s character of administrative judges regarding the banning of rightwing extremist associations? Legal reasoning and normative judgments on right-wing extremism (the urgent appeal) Regarding the association ban, the president of the litigation section of the Conseil d’Etat argues: The proscription of an association is decided by the Council of Ministers. It is an order, a thoughtful and deliberate decision. Some ban orders, of any nature, are repealed but the success rate is very high because these are decisions that the administration has taken time to think about. You do not gather the Council of Ministers for an order without having a strong case. . . . By contrast, the ban on meetings, on demonstrations, are usually taken urgently. They are often fragile decisions because they are not very well-informed, and also, the demonstration ban in general is questionable because it is difficult to assess proportionality between the ban and the risk posed by the demonstration to public order. This question is more debatable than assessing whether an association should be banned on the grounds of criteria listed in the 1936 law.

200  Banning right-wing extremist associations As illustrated in this excerpt, judges think that the legal criteria determining whether a ban should be upheld help their rational decision-making. By contrast, Dieudonné’s show, where judges are expected to balance the interests of society with those of the comedian, are delicate. The respondent recognises the difficulty in his professional practice of assessing the degree to which the threat to public order and the restriction of freedom of assembly are proportional, in the case of the banning of a show. Assessing proportionality is not a mere application of legal measures but also involves an interpretation of the situation by judges. Whilst German judges produce orders with precise descriptions of how a demonstration may take place (Jobard, 2012), which reconcile public order and freedom of assembly, such is not the case with administrative law judges of the Conseil d’Etat: It’s true that in some other countries, judges would have rather said “we forbid you to say that”, “your show may take place if and only if .  .  .  “In France, that is not how we work, and certainly not for a show which already exists. . . . And also, we lacked time. . . . This question [whether the show could have been allowed under certain conditions] was not addressed at all. (interview with the President of the litigation section in the Conseil d’Etat) We could have allowed the show under the condition that it does not entail statements inciting to racial hatred or anti-Semitism. . . . Dieudonné said several times that he would not use disgusting language anymore, and yet he did. I do not believe him anymore and I therefore simply ban his show. (interview with the President of a chamber in the Conseil d’Etat) Although it is a legal possibility, the judge did not accommodate the positions of the administration (repress hate speech) and of Dieudonné (performing) by drafting an order where litigious statements would be banned instead of the entire show. Judge’s institutional culture as well as the lack of time explain this position, which also reveals that the short duration of the référé procedure plays a role in decision-making. The second excerpt outlines the normative judgment of the judge towards the comedian and highlights that there is common ground between the judges and the government. These elements suggest that judges’ decisions are shaped by the articulation of three factors: historical practices, normative judgments, and the nature of the procedure. Scholarship studying the practices of the Conseil d’Etat underlines that administrative law judges may try to reconcile two opposing views when society is divided on an issue by finding a compromise or by following the political will (of the executive or legislative authority) if they feel the position is supported by public opinion (Lochak, 2007). A state councillor seconded in the Ministry of the Interior in charge of drafting the order banning the right-wing extremist associations in 2013, underlined in an interview that “on issues such as the proscription of extreme right groups, which affect pillars of our republic, judges tend to allow the executive some flexibility”. This judge recognises that he is likely to

Banning right-wing extremist associations  201 follow the position of the executive when it comes to the repression of extremist groups with a ban order. The President of the litigation section who decided not to suspend the interdiction of Dieudonné’s show underlines his personal opinion on the case: I am absolutely convinced that the young adults who come to his shows . . . can be considerably influenced because this comedian is talented, he has an aura. But using hate speech, here, I think it is a real threat to public order and to human dignity. This excerpt illustrates an endorsement of the minister’s position by the judge because they both share common views on the situation and the risk posed by anti-Semitism in French society. Judges, when they decide to follow the executive on the repression of right-wing radicalism, do it because it is a legal option and also because they are personally convinced that these movements jeopardise the unity of French society. This micro-level analysis highlights the importance of articulating normative judgments with the legal framework to understand how French administrative judges make decisions on right-wing extremist organisations. It illustrates the simultaneous use of legal reasoning and personal beliefs in the drafting of a decision by the French administrative justice. Court rulings The decisions delivered by a panel of judges ruled in favor of the administrative authority in all but one case. About this sole exception, the ban order on the rightwing extremist association Envie de Rêver, which was repealed a year after the référé procedure, the rapporteur public (a state councillor) stated in his conclusions to the court: You might be reluctant to rule in favour of this movement, which usually has a dubious commitment to fundamental rights. But that would not be the first time that you would repeal a ban order, the government took a risk with this decision. Let’s promptly say that we do not intend to moralise anybody: the present situation is unprecedented and delicate. The government made a defensible decision, but it seems to us, all things considered, that it is too detrimental to the freedom of association, which is very precious in democracy. (Crépey, 2014, p. 1163) Three elements of this statement are interesting for the analysis: first, the state councillor recognises with the expression “all things considered” that temporality – here a procedure marked by a slow tempo – matters. Second, the rapporteur public is careful not to blame the government for his decisions and concurrently insinuates that judges are averse to protect a right-wing extremist group, which both shows the ambiguous position of state councillors towards the executive and illustrates their role of veto players since they eventually repealed the decision.

202  Banning right-wing extremist associations Third, this excerpt shows that collegiality, deepened analysis of legislation, and the absence of time-constraints can significantly impact the decision-making process of judges. The analysis of the French case proves that time is an institution and a resource (Howlett and Götz, 2014) that allows for a better understanding of the decisionmaking process. Concerning the Minister of the Interior, temporality helps explain how his decision to issue ban orders may be influenced by both his own policy frame and the rallying of political and non-state actors against the radical right. Yet, it is essential for political actors to be able to convince administrative judges that the ban is manifestly lawful for it not to be defeated during the urgent appeal (for example, the respondents from the Ministry of the Interior underlined during their interviews that they also considered banning other right-wing extremist associations, which was not done because the ban order would surely have been repealed). In the cases under consideration, the judicial decisions matched the position of the political authority, provoking a change in the status quo. The alignment of administrative law judges with the executive is reinforced by the tendency of the Conseil d’Etat to follow the political will when it comes to positions that are with strong public support. It is also influenced by the normative judgments of the judges: concerning Dieudonné’s show, judges were convinced that the anti-Semitic statements posed a serious risk in French society, which justified a ban. By contrast, in the rulings that take place months or years after the decision, administrative law judges make a collegial decision embedded in a longer procedure and may repeal the government’s decision as seen in the case of Envie de Rêver. As the procedure is embedded in a slow tempo, the importance of normative judgments and of the flexibility granted to the government on the decision is less meaningful; “saying the law” then relies on the collective capacity of judges to “bind the details of the claim in the mass of published texts” (Latour, 2010, p. 191). In sum, the French case displays an example of when a ban is mostly a political decision, which is short-lived but politically retributive if it succeeds.

The German case: bans as a policy instrument embedded in a policy against right-wing radicalism Based on the German narrative, the analysis will now focus on the following questions: considering the dominant position of judges in the policy-making of measures against political radicalism, where and how did the idea of banning right-wing extremist associations emerge? What logics can explain why bans succeed? Judges and proscription “There are as many possible starting points for elucidating the causal sequence of the event as there are different motivational factors at play in the collective equation. . . . The boundaries of the event depend on which frame is relevant for the type of outcome under consideration” (Ermakoff, 2008, p. 324). In the analysis of the German case, before moving on to the reasons for which Ministers of the

Banning right-wing extremist associations  203 Interior proscribed associations, it is necessary to emphasise the role of administrative and constitutional judges in the regulation of measures combatting rightwing radicalism. A ban order can be appealed, like all administrative decisions, to the administrative justice within a month after the decision has been issued. As stated earlier, almost all ban orders are appealed in Germany. Administrative law judges in charge of adjudicating on the legality of bans are de facto veto-players whose preferences cannot be ignored by the political actors working to proscribe right-wing extremist associations. In the narrative, I mentioned that administrative law judges had an indispensable role in the process of banning right-wing extremist associations, and that the ban decision made by the Ministry of the Interior consequently depends on the preferences of judges. In light of all this, how do judges take on their role of veto-player? To answer this question, I will analyse the preferences of the administrative law judges deciding on the two German ban cases considered in this chapter. To this end, temporality can prove a useful tool. Like in the French case, the long duration of the judicial process, underlined by the narrative, is important to explaining the outcome of the ban. Usually, the representatives of proscribed associations do not have access to accelerated procedures. Consequently, administrative law judges make decisions on associations’ bans in regular procedures with a hearing, which occurs months after the ban was issued. Most procedures are written and rely on documents provided by the parties as well as research conducted by the judges themselves. One judge of the higher Administrative Court of Berlin-Brandenburg who took part in the ban on Widerstandsbewegung Südbrandenburg explains: In the ruling, we listed 2–3 references. All of them are public. It is common to look for public sources, that is what we did here as well. . . . In this case, for instance, we used the research of a journalist. . . . It was a very well-informed work, which was very interesting for us to have preliminary considerations. It does not mean that we blindly follow what they say. But it was really helpful, because we could better reflect on our findings and sort them out. This respondent underlines how his decision-making is anchored in collecting a large number of materials, especially studies of civil society actors (or academics) in order to get another perspective on the documents provided by political parties. This excerpt shows that judges want precise and detailed information on the banned association in order to make a decision. The respondent’s remarks suggest that the decision-making process requires time and relies on a slow tempo, imposed by the practices of judges. The slow tempo allows administrative law judges to perform research, to deliberate, and eventually to gain hindsight on the case. The duration of the procedure and the thorough examination of the case are reflected by the length of the decisions in which the motivations are considerably more elaborate and exhaustive than in French administrative rulings. Considering that rulings are issued several months after the bans, there are hardly any debates publicised in the media when judges make the decision. Their frame, as identified in Chapter 4, is not challenged by a rapid tempo as it is in the French case

204  Banning right-wing extremist associations during the référé procedure. Conversely, one can ask whether the slow tempo of judges influences how the executive actors make decisions concerning right-wing extremist associations. Constrained political decisions Adaptation to the demands of judges Administrative jurisprudence in Germany is an important step that must be precisely examined by the actors of the executive branch before starting any association’s ban. Writing a decision requires both a full team of legal experts, who (contrary to the French case) cannot be administrative judges, and a non-negligible amount of time: as underlined in the narrative, drafting the ban on Widerstandsbewegung Südbrandenburg required three months of full work for the legal team. The result was a 40-page-long decision. The analysis of the interviews conducted with actors who drafted the administrative ban decision emphasises the requirement of submitting evidence of the association’s alleged anti-constitutional goals. One of the legal advisors from the Ministry of the Interior in Brandenburg, who was in charge of drafting the ban order, explains how this requirement, entailed in jurisprudence, affects the decision-making process of the executive: Among the police, they know that it is possible to proscribe an association and also that some criteria must be met. If the police conclude, “We have some reliable findings on this specific group, they do this and that, X and Y are involved, and the structure of the organisation looks like that”, then we examine the case [at the Ministry of the Interior], which is sent to us by the police. And then we may say: “yes that is enough” or on the contrary we might conclude: “well, it could be enough but actually we need more findings”. In this case, the police are assigned to further investigate in this or that direction because we need more information on this person and that person, we need to know more about their activities. At some point, the police come back to us with further findings and then we either say “okay, that’s enough, now we ban”, in which case we then suggest to the Minister to proscribe the association, or we say “no, that won’t be possible”, and then we pause the procedure. And from time to time, we come back to the case: “do we now have enough?”, “are they still active?” This excerpt indicates that not only the executive but also police actors are affected by the strict requirements imposed by administrative law judges. This influences the interactions between the different repressive actors as the ban is the product of a long process based on numerous exchanges between the legal department and the police. In addition, another respondent who also took part in the preparation of the ban in Brandenburg underlined during his interview that the intelligence service also contributes to the collection of findings. He argues that, at the end of the process leading to a ban “one doesn’t really know who initiated the procedure”,

Banning right-wing extremist associations  205 thus portraying a collective process in which the political actor (the Minister) is only one of the many parties involved. Another interesting conclusion deriving from these statements is that a group that cannot be banned still remains under surveillance, which shows that decision-making relies on a long-term process. In sum, before making a decision, the executive branch is greatly influenced by jurisprudence. The extent of this constraint is illustrated by the length of the procedure14 that leads to the effective drafting of a ban order. This result is in line with the argumentation of Landfried, who outlined that “the decision-makers in the [German] Parliament often anticipate a possible future judicial review (by the Constitutional Court)” (1994, p. 117). In the present case, administrative law judges are veto-players and administrative actors anticipate the judges’ preferences. In doing so, the role of the executive in the repressive process is not as prominent as in the French case. Why ban? Considering the fastidious process behind the banning of an association, it is almost surprising that it remains a common occurrence in Germany, or in France for that matter. So, why ban associations? What are the expected benefits of a ban for the actors involved? In the Minister of the Interior’s case, these can be identified with the help of temporality. As underlined in the narrative, the media coverage surrounding the ban procedure in Germany is not as intensive as in France, due to the comparatively long duration of the process. As illustrated in the German narrative, diffuse media coverage nevertheless puts pressure on state actors to respond to right-wing radicalism. The pressure is strengthened by citizen activism, which contributed to the perception of right-wing radicalism as a public issue. On the one hand, repressive actions taken by the Minister of the Interior, such as a ban against a right-wing extremist group, can be interpreted as a means to attract positive media coverage of the regions affected by right-wing radicalism and generate public support for the Minister’s political action; in this case, the use of the ban contains a symbolic dimension that can benefit the executive branch. On the other hand, as civil society mobilisation against right-wing radicalism and media coverage on that issue are diffuse, it is likely that a ban will not suffice to convince the public that the government is fully committed to the struggle against this phenomenon. If banning associations is a politically retributive instrument in Germany, it is also used as a way to prosecute and deprive the right-wing extremist associations from their means of actions. As stated earlier, the use of proscription can benefit the executive branch because this instrument has a symbolic component and resonates among the German population despite the contrasting effects it has had on the radical right milieu (Minkenberg, 2006). However, in the two cases under investigation, the bans intervene in the context of a dynamic local policy against rightwing radicalism. For example, in the Brandenburg case, the government engaged a policy programme, Tolerantes Brandenburg, using a diverse arsenal of preventive and repressive measures to respond to the multi-faceted phenomenon that is

206  Banning right-wing extremist associations the radical right. The ban on Widerstandsbewegung Südbrandenburg is embedded in this public policy and emerged as a way to contain the growing influence of the group in south Brandenburg and neighbouring Länder. Concerning NRW, the narrative suggests that the Minister of the Interior decided in December 2011 to launch a large programme against right-wing radicalism. It somewhat resembles the political initiative that occurred in Brandenburg in 1998 when the Minister President introduced Tolerantes Brandenburg. In this context, several cities, including Dortmund, were equipped with specific units in charge of repressing right-wing activities whenever the opportunity arises. It is unlikely that the specific units were designed especially for the purpose of banning the right-wing extremist association Nationaler Widerstand Dortmund. As a matter of fact, these units still exist in NRW, suggesting that they had not been thought of as short-term structures. The ban instrument is rather used as one of the many instruments offered by the German legal framework to repress right-wing radicalism. Proscribing an association is not only a symbol of political activism, but first and foremost a tactical move intended to enable the police forces to learn more about the banned organisation, its activities, and its network for further prosecution cases. The drafting process of the ban is secretive, in order to prevent right-wing extremist activists from destroying their belongings and sensitive data before the police forces carry out large-scale search and seizure. For the police, a ban is an opportunity to collect data and pieces of evidence that may be useful for ongoing cases against right-wing extremist activists. In addition, the banning of an association may also weaken the right-wing milieu for a short period of time, which can be beneficial to the police. For instance, the ban order of Nationaler Widerstand Dortmund, issued in August 2012, effectively prevented the right-wing extremist demonstration that took place a few weeks afterwards in September. To this extent, the proscription of associations is part of the broader repressive strategy based on systematic prosecution of right-wing offences. Outlooks on the German case The cases under scrutiny share similar outcomes not just to each other, but to most bans on right-wing extremist associations in Germany. The aim of this analysis was to unravel logics, which explain the outcomes and, in this instance, the validation of ban orders by administrative law judges. Administrative law judges assume the role of veto-players because they defined criteria for a ban to pass: to obtain a change of status quo, a strict compliance with these principles is expected, which is reinforced by the fact that the administrative law judge’s frame is not challenged by a rapid tempo as it is in the French case. By questioning the impact of the veto-player, we find out that the decision of the Minister of the Interior and of his administration relies on the rules established by administrative law judges, and there is no evidence of attempts by the executive branch to circumvent these rules. Administrative actors spend much time anticipating the reactions of judges and act to prevent the banning of right-wing extremist associations if there is not sufficient evidence.

Banning right-wing extremist associations  207 Paying attention to temporality allows the identification of another logic: as the Ministry of the Interior is compelled to issue a highly detailed and justified ban order, the decision-making process lasts for months. Banning an association is a long-term endeavour that directly involves a series of state actors (police, intelligence service, legal department of the Ministry of the Interior, and the Minister of the Interior) and indirectly involves civil society actors who monitor and protest against radical right-wing groups. The ban is not merely seen as a symbolic and highly politicised instrument, but also as part of a larger repressive strategy against right-wing radicalism. The use of association bans as an isolated policy for combatting right-wing radicalism is declining; rather, governments use this instrument as a decision variable to locally contain the most extremist movements for a short period of time. This use of bans is articulated in the form of broad programmes against the radical right. Tolerantes Brandenburg and the Eight-PointProgramme15 in NRW illustrate the great potential of developing sustainable policy concepts. The analysis of the German case shows that an old instrument of militant democracy can be embedded in the development of a greater variety of measures against right-wing radicalism.

Cross-case analysis and conclusive outlooks The contrasting influence of political actors In France and Germany, the decision-making process of the executive branch depends on the position of administrative law judges who were identified as veto-players. German judges are strong veto-players, cultivating their independence from public administration, who developed jurisprudence on numerous aspects of the repression of political radicalism, involving the bans of associations. Their strong impact on the decision-making process of repressive actors is illustrated by the many references to the expectations of judges in interviews and by a long preparation phase before the drafting process starts. Eventually, a common ­decision-making process between the intelligence service, the police, and the Minister of the Interior occurs. Because of restrictions, the ban remains a rigid policy instrument whose use is strictly controlled by administrative law judges. It is de facto used by the executive branch as one of the many instruments of the political actors against political radicalism. In fact, the ban became part of a broader repressive strategy: to this extent, when this legal instrument is mobilised by the executive branch, it serves two interests; first, the Minister of the Interior who reaps the benefits of the ban, thanks to intensive media coverage showing the minister’s activism. Second, the police forces who are expected to collect new information on prosecuted right-wing radical activists (along the raids) have a (more limited) interest in using the ban, as they can expect a momentary weakening of the right-wing radical scene and hence of their activities in the public space during a few months. In France, actors from the executive branch are leading measures against political radicalism. Of course, they comply to administrative jurisprudence, but this

208  Banning right-wing extremist associations is less central in the discourse of the French interviewees who emphasise their political responsibility to repress this form of political radicalism. Political actors, especially the Minister of the Interior, give the impetus to undertake a repressive procedure, a decision which relies on external pressure but also on the individual policy frame of the political actor in charge. Bans are much more politicised in France than they are in Germany. Therefore, French political actors announce their intention to ban before the order is issued, whereas the process remains secret until the order is issued in Germany. In France, the ban is also a performative act where the political declaration is an important step in the political arena that shows that the government fights political enemies. As mentioned earlier, proscriptions do not lead to police searches: insofar as bans are not used by the Ministry of the Interior in the context of larger repressive strategies implemented by the police forces in the way they are in Germany. This further proves the overarching role of the minister’s individual interests in the decision to ban right-wing extremist groups. The announcement of a ban usually triggers intensive media coverage, which may be beneficial to the Minister in two ways. There are possible personal benefits if the ban succeeds, and media coverage also enables the executive to set the repression of right-wing radicalism on the agenda in a country where repressing political radicalism is not a policy matter. It also enables the minister to take the lead on the enforcement of a policy measure. The bans intervene in a highly politicised context, which leads prefects and mayors in the case of Dieudonné’s show to make a repressive decision. Administrative law judges adjudicate on cases in a highly politicised and in a time-constrained context with the use of référés. Table 6.3 summarises the central factors in decision-making of actors in both France and Germany. The role of procedures in decision-making In this chapter, I explored the impact of the legal procedure on policy outcomes. In France, urgent appeals play a role in litigations relating to bans. The référé procedure was introduced in 2000 to reduce administration excess and as a legal protection for citizens. These procedures, due to their rapid tempo and the fact Table 6.3  Central factors in decision-making of political actors France

Germany

Anticipation of judge’s expectations

Moderate

Essential

Importance of communication

Personal reward for the Minister Announcement of the ban before it is issued

Personal reward for the Minister Secretive process

The ban order is the product of . . .

Political decision

Collective process, ban is part of a larger policy

Banning right-wing extremist associations  209 that the judge decides alone, challenge the frame of administrative law judges and expose them to highly politicised issues. Their decisions are then driven by the articulation of legal reasoning and individual normative judgments, which happen to be in line with those of the executive in the cases under consideration here. In addition, during urgent appeals judges are less concerned about the legality of the decision, which plays in the executive’s favour. In sum, the use of référés changes the mechanism by which judges make decisions and causes the case to be highly politicised. Unlike in France, ban orders in Germany are not suspended until the final ruling. Therefore, the decision of judges is not affected by the rapid tempo of an urgent appeal. The historically central position of German judges in the governance of right-wing radicalism is accepted and recognised by other state actors. The veto-position of judges strongly affects political and state actors in their decision-making process. As seen in previous chapters, association bans are not essential tools for political actors, who have instead developed a series of other instruments for repressing and preventing right-wing radicalism. Bans against the radical right, which are time-consuming, dependent on administrative judges, and of limited efficacy, have been relegated to a secondary instrument. As an illustration of this phenomenon, constitutional judges took an innovative stance in 2017 when they refused to ban the NPD (Federal Constitutional Court, 2017) and justified their decision by asserting that the threat posed by the NPD did not justify a ban, and that less intrusive instruments were also capable of achieving the goal of protecting democracy (Backes, 2018). This decision confirmed the new course of public action against right-wing radicalism in Germany. To what extent do state councillors act as veto-players, and how does their role differ between the two countries under study? The Conseil d’Etat is responsible for protecting the interests of the state (Chevallier, 2007). In recent decades, especially after the introduction of accelerated procedures in 2000, state councillors were pressured to increase their oversight of the practices of the administration. Exploring how administrative law judges make decisions concerning the repression of right-wing radicalism has enabled me to assess how they regulate administrative decisions: the state councillor is the first administrative corps of the French state and is therefore part of public administration, which contrasts greatly with the German example. State councillors, in their rulings, pay close attention to the needs of the administration. In the case of Dieudonné, I explained that the judge did not decide to put limitations on the comedian’s show by banning some excerpts and allowing others. This differs from German practices in that French administrative judges are likely to be more tolerant towards the measures taken by the administration than German judges, thanks in part to the référé procedure. Table  6.4 finally summarises the factors explaining the outcomes of bans and highlights French-German differences. To conclude, the French-German comparison reveals, at the micro-level, that administrative law judges embody different roles in both countries: whereas they strongly influence the decision-making process of the German executive actors who anticipate the judicial review, in the French case it is generally the executive

210  Banning right-wing extremist associations Table 6.4  Factors explaining the outcomes of bans in France and Germany France

Germany

Procedure

Référé procedure Judge’s practices are challenged

Common procedure Judge’s practices are not challenged

Role of personal views in the decision-making process

Decisive Jurisprudence plays a more minor role in the référé procedure

Weak Jurisprudence plays a decisive role in the decision-making process

Position of administrative law judges towards the state administration

Judges are part of the administration

Judges are independent from the administration

actors who lead the process. Therefore, the German case is characterised by a long procedure prior to the publication of the administrative order during which a series of administrative and political actors work together to enable the drafting of a ban order. Considering the procedural difficulties and the limited benefits of a ban in Germany, the measure is now just one in a wide array of programmes against right-wing radicalism. These results challenge the assumption that German political actors use bans against right-wing extremist groups in order to forward their political interests (Gerlach, 2013). Rather, I argue that the motives for proscribing right-wing extremist groups in Germany are manifold but that bans, at least at the Länder level, are embedded in larger policies. In France, however, association bans are used by government actors to gain political benefits and to ostracise extremist groups. In conclusion, the structure of right-wing movements is of secondary importance to understanding the decision-making process behind association bans and to identifying significant differences between French and German policy-­making. What is of primary importance are the institutional cultures, the interactions and the frames of policy-makers. This chapter has finally shown that the analysis of the policy-making process is essential to understanding the internal differences in the use of bans. Where fighting right-wing radicalism is framed as a policy matter, the repression of extremist groups is more likely to be embedded in a broader policy as one of many measures, whereas countries marked by the framing of political radicalism as a matter of politics are likely to politicise bans and use them as a tool of political struggle.

Notes 1 In this chapter, extremist is mostly used when referring to associations that were proscribed because the ideology they promote can be classified as “extreme right” (see classification established in Chapter 1). 2 For a comparative overview of the variations in party ban practices in Europe, see Bourne and Casal Bértoa, 2017.

Banning right-wing extremist associations  211 3 Envie de Rêver, Troisième Voie, Jeunesses Nationalistes Révolutionnaires, Jeunesses Nationalistes, and L’Œuvre Française. 4 Nationaler Widerstand Dortmund, Kameradschaft Hamm, and Kameradschaft Aachener Land. A focus will be set on the interdiction of the first association. 5 In France, two-thirds of right-wing extremist associations outlawed between 1990 and 2016 appealed the administrative decision in Court. 6 For an extensive version of the communiqué, see Ministre de l’Intérieur (12/27/2013). 7 The rule was changed in 2016 as a result of the Dieudonné case. It is now possible for administrative law judges to form a panel of three judges to rule in référé complex procedures. 8 See Conseil d’Etat (10/01/2014). 9 See Conseil d’Etat (11/01/2014). 10 In 2012, there was no radical right party represented in Brandenburg Parliament. 11 See Higher Administrative Court of Münster (30/12/2014). 12 See Federal Administrative Court (07/07/2015). 13 Circular letters in France are usually issued by ministries to their administration and strongly influence the practices of civil servants on account of administrative hierarchy; see Koubi, 2003. 14 In the cases under investigation, the drafting process took three full months. In some other cases, the duration can be significantly longer. 15 For more information, see the detailed programme: URL: www.land.nrw/de/pres semitteilung/nrw-verschaerft-den-kampf-gegen-rechtsextremismus-minister-jaegerstellt-acht, last accessed on 20.09.2019.

References Backes, U. (2018). Banning Political Parties in a Democratic Constitutional State: The Second NPD ban Proceedings in a Comparative Perspective. Patterns of Prejudice, 53(2), pp. 136–151. Beach, D. and Pedersen, R.B. (2013). Process-Tracing Methods: Foundations and Guidelines. Ann Arbor: University of Michigan Press. Borstel, D., Luzar, C. and Sundermeyer, O. (2011). Rechtsextreme Strukturen in Dortmund. Formationen und neuere Entwicklungen – Ein Update 2011. Dortmund: City Dortmund. Bourne, A. and Casal Bértoa, F. (2017). Mapping ‘Militant Democracy’: Variations in Party Ban Practices in European Democracies (1945–2015). European Constitutional Law Review, 13(2), pp. 221–247. Brustier, G. and Escalona, F. (2015). La gauche et la droite face au Front National. In: S. Crépon, A. Dézé and N. Mayer (eds.), Les faux-semblants du Front National. Paris: Presses de Sciences Po, pp. 505–528. Chatriot, A. (2008). La difficile écriture de l’histoire du Conseil d’Etat. French Politics, 35(3), pp. 23–42. Chevallier, J. (2007). Le Conseil d’Etat au cœur de l’Etat. Pouvoirs, 123(4), pp. 5–17. Collier, D. (2011). Understanding Process Tracing. Political Science and Politics, 44(4), pp. 823–830. Conseil d’Etat (11/01/2014). Ordonnance SARL les Productions de la Plume et M. Dieudonné M’Bala M’Bala. Decision n°374528. Conseil d’Etat (10/01/2014). Ordonnance Société les Productions de la Plume et M. Dieudonné M’Bala M’Bala. Decision n°374552. Crépey, E. (2014). Etendue et limites du pouvoir de dissoudre par décret certaines associations ou groupement – conclusions sur Conseil d’Etat, 30 Juillet 2014, Association

212  Banning right-wing extremist associations Envie de Rêver et M. Kevin Couette, n° 370306 et M. Serge Ayoub, n° 372180. Revue Française de Droit Administratif, 30(6), pp. 1158–1165. Ermakoff, I. (2008). Ruling Oneself Out: A Theory of Collective Abdications. Durham: Duke University Press. Federal Administrative Court (07/07/2015). BVerwG 1 B 18.15. Federal Constitutional Court (17/01/2017). BVerfG 2 BvB 1/13 – Rn. (1–1010). George, A. and Bennett, A. (2005). Case Studies and Theory Development in the Social Sciences. Cambridge: MIT Press. Gerlach, J. (2013). Der Umgang mit politischem Extremismus auf dem Prüfstand. Vereinsverbote in Deutschland seit 1990. In: G. Hirscher and J. Eckard (eds.), Extremismus in Deutschland, vol. 26. Baden-Baden: Nomos, pp. 527–548. Grzymala-Busse, A. (2011). Time Will Tell? Temporality and the Analysis of Causal Mechanisms and Processes. Comparative Political Studies, 44(9), pp. 1267–1297. Hajjat, A. and Mohammed, M. (2016). Islamophobie, comment les élites françaises fabriquent le ‘problème musulman’. Paris: La Découverte. Heitmeyer, W., Borstel, D., Grau, A., Legge, S. Luzar, C. and Marth, J. (2009). Analyse und Handlungsvorschläge zum Rechtsextremismus in Dortmund. Bielefeld: Universität Bielefeld. Higher Administrative Court of Münster (30/12/2014). OVG Nordrhein-Westfalen  – 5 D 83/12. Howlett, M. and Götz, K. (2014). Introduction: Time, Temporality and Timescapes in Administration and Policy. International Review of Administrative Sciences, 80(3), pp. 477–492. Jobard, F. (2017). The French Humorist Dieudonné: Between Anti-racism, Antisemitism, and Holocaust Denial. In: J. Eder, P. Gassert and A. Steinweis (eds.), Holocaust Memory in a Globalizing World. Göttingen: Wallstein, pp. 95–110. Jobard, F. (2012). Quand droit et politique sont à la fête. La ‘love’ et la ‘fuckparade’ sous les fourches civilisatrices du droit administratif allemand. In: P. Favre, O. Fillieule and F. Jobard (eds.) L’atelier du politiste. Paris: La Découverte-Pacte, pp. 241–255. Kessler, M.C. (1968). Le Conseil d’Etat. Paris: Armand Colin. Koubi, G. (2003). Les circulaires administratives: contributions à l’étude du droit administratif. Paris: Economica. Landfried, C. (1994). The Judicialization of Politics in Germany. International Political Science Review, 15(2), pp. 113–124. Latour, B. (2010). The Making of Law: An Ethnography of the Conseil d’Etat. Cambridge: Polity Press. Lochak, D. (2007). Le Conseil d’Etat en politique. Pouvoirs, 123, pp. 19–32. Maillet, A. and Mayaux, P.L. (2018). Le process-tracing, entre narration historique et raisonnement expérimental. Revue Française de Science Politique, 68(6), pp. 1061–1082. Ministre de l’Intérieur (27/12/2013). Condamnation des Propos Racistes et Antisémites de Dieudonné M’Bala M’Bala. Press Release. URL: www.interieur.gouv.fr/Archives/ Archives-des-communiques-de-presse/2013-Communiques/Condamnation-des-proposracistes-et-antisemites-de-Dieudonne-M-BALA-M-BALA, last accessed on 29.09.2019. Minkenberg, M. (2006). Repression and Reaction: Militant Democracy and the Radical Right in Germany and France. Patterns of Prejudice, 40(1), pp. 25–44. Scharpf, F. (1997). Games Real Actors Play: Actor-Centered Institutionalism in Policy Research. Boulder: Westview Press. Shapiro, B. (2015). Timothy Tackett. The Coming of the Terror in the French Revolution. The American Historical Review, 120(5), pp. 1978–1979.

Banning right-wing extremist associations  213 Tackett, T. (2015). The Coming of the Terror in the French Revolution. Cambridge, MA: Belknap Press of Harvard University Press. Tsebelis, G. (1999). Veto Players and Law Construction in Parliamentary Democracies: An Empirical Analysis. The American Political Science Review, 93(3), pp. 591–608. Wagner, B., Wichmann, F., Landgraf, G. and Krause, U. (eds.) (2011). Lagebericht, Rechtsextremismus im Landkreis Dahme-Spreewald. Berlin: ZDK Gesellschaft Demokratische Kultur GmbH.

Conclusion

Main results for right-wing studies This book asked the following research question: how do French and German states use the different policy instruments at their disposal to establish a political order in liberal democracies? My analysis therefore used the analytical tools developed by policy studies in an attempt to explain how right-wing radicalism is addressed by policy-makers and which factors drive the policy-making process. The comparison sought to identify the role of structural and ideational factors on the regulation of right-wing radicalism in liberal democratic systems. Three variables were specifically examined, namely, the organisation of the radical right, the type of government, and the treatment of authoritarian pasts. The main findings can be summarised in four arguments. First of all, the radical right is a political target in both countries. In Germany, principles inherited from Loewenstein’s militant democracy were inscribed in the Basic Law, and from these legal foundations political and state actors developed a state doctrine preventing the democratic order from political extremist threats. Militant democracy (wehrhafte Demokratie) is consequently a key feature of the German polity with institutions such as the Offices for the Protection of the Constitution as well as a well-established anti-extremist policy. The construction of a policy repressing political radicalism with clear delineation between extremism and the rest of the political spectrum, the former being a threat to constitutional order and consequently considered anti-constitutional, enabled Germany to adapt to the paradox of tolerance. The anti-extremist policy, which is the product of a 50-year-long construction by political and state actors, is still an essential feature of German democracy today. In France, right-wing radicalism, and political radicalism in general, is treated as a political matter, which first and foremost concerns the political arena. Consequently, it is challenging to identify a comprehensive legal frame for handling political radicalism with policy means. Yet, the French legal framework developed a heterogeneous set of measures focusing on the repression of violence and racism, which, in practice, contribute to the effective repression of right-wing radicalism. Policy-makers’ underlying rationale is the belief that right-wing radicalism should not be addressed in policy terms unless the groups are violent or express racist opinions. In neither case could the

Conclusion  215 structure of the radical right be identified as a determining factor for the development or the absence of responses to the radical right. Rather, the respective national policy frames were built on historical experiences of political radicalism, and the way in which these experiences were processed helps explain why Germany has framed extremism as a key policy, while France has continued to consider political radicalism as a matter of politics. In light of this first observation, this book then questioned the perceptions of a range of public actors. The interviews conducted with policy actors enabled me to map different policy frames identified in both countries. I could show that French and German actors display similarities in their perceptions, despite various national legal frameworks (Table 7.1). Policy frames were defined and identified as the result of the institutional setting, the actors’ personal interests, and their normative judgments. The institutional setting plays an overarching role in the policy frames identified amongst actors; it is both a dependent and an independent variable: actors seek to change the institutional setting and at the same time their policy frame largely relies on the current setting. In addition, actors’ normative aspirations are key to identifying and locating the production of different types of knowledge. Exploring the interests of preventive and repressive actors was similarly crucial to examining how they position themselves in the larger actors’ constellation. Combining different research approaches of policy studies (ideational

Table 7.1  Policy frames identified in France and Germany Policy frames

Actors FR

DE

Repressive

– Actors from the police (including intelligence service) * production of state knowledge

– Actors from the criminal police * production of state knowledge – Actors from the intelligence service * production of state knowledge

Prevention and cooperation with civil society

– Actors from state institutions: CNCDH, DILCRAH * production of alternative knowledge – Non-state actors * production of alternative knowledge

– Actors from the Ministry for Family Affairs – Non-state actors * production of alternative knowledge – Actors from the intelligence service (partly) – Prosecutors from the criminal justice system (partly)

Permissive/ repressive *synthesis of knowledge

– Actors from the administrative justice system – Actors from the criminal justice system – Actors from the Press Section

– Judges from the administrative justice system – Actors from the criminal justice system

216  Conclusion perspective, institutional perspective, and interest perspective) allowed me to map the concomitant dynamics in the regulation of right-wing radicalism. This leads me to the third argument made in this book. Three main factors determining how policy actors make a decision when responding to right-wing radicalism were identified as illustrated by Table 7.2: whether right-wing radicalism is framed as a policy issue, the openness of policy-making to civil society, and the impact of actors with different policy frames on decision-making. These factors have considerable consequences on policy outcomes. In Germany, the role of veto-players such as judges prevents actors with a repressive policy frame from making decisions in accordance with their frame, and political actors do not have a central position. This is in line with German federalism Table 7.2  Factors influencing the decision-making of policy actors in France and Germany Germany

France

Right-wing radicalism framed as a policy issue

+

–

Openness towards civil society in the policymaking process

+

–

Weight of political actors in the making of measures against right-wing radicalism

+

+/–

Weight of judges in the decision-making of actors with a repressive frame

+

–

Consequences Collective decision-making (i.e. policy frame of security authorities is constrained by the intervention of judges) Non-state actors influence the orientations of preventive policy against right-wing radicalism Central role of political actors in changing the policy mix of measures against right-wing radicalism

Decision-making compartmentalised (i.e. strong influence of the policy frame in the decision-making of security authorities) Few preventive measures against right-wing radicalism Central role of political actors in the decisionmaking (and potentially in the policy mix of measures against rightwing radicalism) of state actors if they decide to intervene

Conclusion  217 and its tradition of consensus politics involving a diffuse range of actors who all contribute to decision-making. In contrast, French decision-making is more compartmentalised: when it comes to the policing or monitoring of the radical right, the decisions of actors with a repressive frame are rarely driven by political actors or judges than those of the German police. The room for manoeuvre given to the police can be explained by the lack of political interest for the regulation of right-wing radicalism with policy means. This result suggests that the involvement of political actors might change if right-wing groups were suddenly perceived differently by political authorities. Finally, the historical openness of the German policy-making system to civil society has allowed the large introduction of preventive measures in the policy mix, whilst the French case has remained dominated by a fragmentation of the responses that have been implemented and by the undisputed leading role of political actors. Fourth, I explored the proscription of French and German right-wing groups in Chapter 6. I showed that the anticipation of the decision of administrative law judges in Germany is essential to understanding the decisions made by political actors, whilst in the French case, political actors lead the proscription process. Bans against right-wing groups are mainly used as a political instrument by government actors. In contrast, the historically central position of German judges in the governance of political radicalism, and more largely in policies, is accepted and recognised by political actors. Therefore, the veto-position of judges strongly affects political and state actors in their decision-making process. The legal possibility to ban is not primarily used as a political instrument; it is rather embedded in a wider repressive policy against right-wing radicalism and is therefore used as one of the many repressive instruments available to assert political order. Here again, the structure of right-wing movements is of secondary importance to understanding the decision-making process; instead, the type of government and the frames of policy-makers are more helpful in explaining the significant differences between French and German regulation of right-wing radicalism. In sum, the ideational factor, namely, how the authoritarian past has been processed by liberal democracies, and the place given to the regulation of political radicalism in the polity, play an overriding role in the regulation of right-wing radicalism. I  also argue that the type of government must be articulated in the analysis of the ideational component in order to make sense of how right-wing radicalism is effectively addressed. Finally, the influence of the structure of the radical right on the regulation of right-wing radicalism is of secondary importance. Whilst it is true that, for example, the outburst of right-wing violence in the early 1990s in Germany partly explains why German policy moved towards a more preventive approach at that time, this book showed that the differences in the regulation of right-wing radicalism in France and Germany do not primarily result from the structuration of right-wing radicalism since ideational factors are stronger at explaining how policy actors address the radical right. Radical rightwing groups, by contrast, are responsive and promptly adapt to policy measures regulating political radicalism (Minkenberg, 2006).

218  Conclusion

Inputs for public policy studies At the theoretical level, this book proved that it was possible to question actors’ ideas and perceptions through the combination of a framework influenced by the inputs of institutionalism, in particular of actor-centred institutionalism, with a constructivist perspective that questions ideas and perceptions (e.g. Blyth, 2002; Hay, 2006; Schmidt, 2008). Studying the regulation of political radicalism is indeed complex since it involves a wide range of policy actors with different institutional affiliations and most importantly, the matter is not framed as a policy issue in all liberal democracies. Constructivists assume that ideas dominate policy actions and might be used strategically in policy-making, and argue that exploring the role of ideational factors is especially helpful in cases of issue complexity (Saurugger, 2013). Yet, constructivist approaches in policy studies face two main challenges: first, a large part of research with a constructivist approach focuses on a narrow selection of actors or alternatively on small-case studies, which limits their explanatory power when it comes to understanding in which direction a policy is heading. Combining constructivism with the actor-centred institutional framework not only enabled me to explore how a wide range of policy actors regulate right-wing radicalism but also to develop a comparative study. Additionally, constructivist analyses are often criticised for lacking economically rationalist thinking, which makes the assessment of the impact of ideas on the policy process difficult. The actor-centred institutionalist approach inspired by the rationalist policy scholar Fritz Scharpf, avoids this pitfall by introducing rational elements (i.e. by inferring a causality link between the orientations of actors, their constellations, their modes of interaction, and eventually, policy outcomes) (see Chapter 1). In sum, the operationalisation of an actor-centred constructivist approach is flexible enough to compare two cases that frame political radicalism differently. The strength of this framework is that it assesses both the importance of structural elements such as the institutional setting and the role of actors’ ideas on policymaking. Therefore, I  could show how the power is parcelled out according to institutional affiliations and historical framing and the circulation of ideas among policy actors who address right-wing radicalism. Yet, this theoretical framework presents some limits. It bears a great level of complexity since it requires the analysis of very different types of actors to explain policy outcomes. In the present case, this framework only allowed me to contribute to policy responses to right-wing radicalism, although integrating the interaction between policy measures and the logics of the political arena (politics) could have enriched the analysis. Put differently, this approach and its theoretical underpinnings are still very much embedded in policy studies. Another shortcoming of this perspective which puts efforts towards combining a constructivist and a rational-institutional approach is that making this theoretical choice inevitably leads to neglecting some of the aspects of each respective approach. For instance, it is challenging to take into account the role of contingent oppositions between policy actors sharing the same frame on policy outcomes because the actor-­ centred constructivist framework, employed for a comparison, strongly focuses

Conclusion  219 on the main mechanisms explaining policy outcomes: actors’ policy frames, their constellation, and their modes of interaction. Actor-centred constructivism nevertheless allowed me to shed light on the regulation of right-wing radicalism from different perspectives. Different levels of analysis (macro, meso, micro) helped me to identify the existence of different ideas and processes. At the macro-level (Chapter 3), political extremism is framed as a policy issue in Germany, while France addresses right-wing radicalism, mostly indirectly, with the help of different legal frameworks. The meso-approach adopted in Chapters 4 and 5 changed the perspective and emphasised the variety of policy frames amongst policy actors in both countries. Finally, examining the proscription of associations at the micro-level in Chapter 6 helped me to identify the policy actors who lead policy-making against right-wing radicalism in France and Germany.

Questioning the relationships between society and politics This book questioned French and German societies’ relationship to politics. In Germany, there is a regulation model where power is distributed among a wide range of actors. Policy actors involved in responses to the radical right, even if they present different policy frames, are hardly polarised in a political system marked by the importance of belonging to the political democratic middle. In France, the regulation of radicalism is concentrated within the boundaries of politics. Yet, this book also emphasised the role of a range of state actors, who are granted power to address political radicalism, on the regulation of right-wing radicalism. What does this say about the regulation of right-wing radicalism in France and Germany? If both German and French political actors intend to act as legitimate actors when responding to political radicalism, there are distinctive ways for these actors to show their authority against right-wing radicalism. Germany: circulation of power German policy-making relies on the state capacity to regulate society and on the capacity of policy actors to self-regulate. This also concerns the regulation of right-wing radicalism. In the German model, the rule of law is essential to the establishment of a functioning regulation of political radicalism, which explains why the fight against political radicalism has historically been organised around the Constitution. The legal framework and the judicial decisions are constraints for political actors, who need to comply with them in order to pursue legitimate policies. Judges are identified as supporting a cohesive society and not solely as guardians of German militant democracy. To this end, judicial decisions synthesise knowledge produced by policy actors in the protection of democracy: judges play an overriding role in the regulation of radicalism and through their rulings legitimise (or delegitimise) existing practices. Implementing measures against the radical right is a game between political and state actors on the one hand, and judges on the other – a game in which the former must adapt to the will of the latter. In the late 1990s, non-state actors were introduced in the making of responses to

220  Conclusion the radical right. The increasing importance assumed by civil society in decisions regarding the regulation of right-wing radicalism epitomises the capacity of German democracy to seamlessly articulate politics and society in this policy field. Habermas’ conception of the circulation of political power in a deliberative democracy (Habermas, 1996) distinguishes two types of public spheres  – one composed of Assemblies and Parliaments, the other composed of associations and informal communications. Habermas posits that these two public spheres express popular sovereignty. On the one hand, there is the expression of a “communicatively generated power” and on the other hand, the expression of an “administratively employed power”. Both types of power “cut across each other” (Ibid., p. 483). The empirical expression of the second type of power in the German case is embodied by the growing importance of non-state actors in the expression of a political will regarding the struggle against political radicalism. This normative input had to be translated in the administrative system via institutional procedures: In the system of public administration, there is a concentrated power that must always regenerate itself anew out of communicative power. Thus, the law is not only constitutive for the power code that steers administrative processes. It represents at the same time the medium for transforming communicative power into administrative power. The idea of the constitutional state can therefore be expounded with the aid of principles according to which legitimate law is generated from communicative power, and the latter is in turn converted into administrative power via legitimately enacted law. (Ibid., p. 169) This study showed how communicative power could be integrated to the administrative power in the German case: state actors still face difficulties in integrating the will of the communicatively generated power to their practices as seen in different chapters. However, facing conflicts due to the pressure of public opinion, an “extraordinary mode of problem solving” (Ibid., p. 357) can occur when attention is paid to the public sphere. The initiative taken by political actors in the 1990s–2000s to bind the will of non-state actors with the action of administrative actors through preventive programmes can be interpreted as a major policy shift and a way to establish a policy against political radicalism based on the principles of a deliberative democracy in which the political power circulates between the two public spheres. In sum, the regulation of the radical right in Germany displays an attempt to introduce communicative power to the policy-making process. Therefore, the German case shows an empirical example of deliberative practices, where the emphasis is set on substantive democratic control engaged by competent citizens who are critical to established power structures (Dryzek, 2000, p. 1ff.) for regulating political radicalism. France: “normal business of politics” In France, the legal framework allowing policy-makers to regulate the radical right is scattered between different legal traditions. Right-wing radicalism is not

Conclusion  221 perceived as a policy issue – and when it is, the issue is framed by state actors as a threat to public order repressed by the police and the criminal justice system. In addition, political actors become personally involved when the case is publicised by using policy instruments such as bans that are not part of a larger repressive strategy as they are in the German case. Consequently, the decision-making process is more fragmented than in Germany, and the exercise of power is hardly a shared practice. The effective handling of right-wing radicalism occurs occasionally and is dominated by one category of actors – repressive actors or political actors. Unlike the German case, civil society generating “communicative power” in the Habermasian sense are not included at a large scale in the policy-making process. Power remains in the hands of political actors, and to a lesser extent of repressive state actors. In this context, law is not a medium enabling the transformation of communicative power into administrative power. The rule of law did not emerge in the French case as a key element to legitimise the regulation of right-wing radicalism in comparison to the German case. The French case is characterised by a political phenomenon (right-wing radicalism) that has not been framed as a public policy because of the tolerance dilemma. Tolerating the intolerant for political actors means addressing right-wing radicalism primarily as a political adversary. Therefore, responses mostly occur in the context of politics and target the hegemon Rassemblement National. Yet, there exist policy measures which directly or indirectly repress (or more rarely prevent) right-wing radicalism. These cases are particularly interesting as they reveal how French democracy adjusts to the paradox of tolerance. Chapter 6 was enlightening as it showed that political actors might use repressive policy means (bans) to address political radicalism and, in so doing, extend politics into the policy arena. In a Luhmanian sense, regulating political radicalism in France is a matter of the political system, which alone can produce collectively binding decisions because of its legitimacy.1 This observation explains why French political actors are granted a central role in the policy mix against right-wing radicalism when they decide to intervene. In cases where state actors such as the security authorities are allowed to regulate right-wing radicalism, the issue is framed as a security matter or as racism and can be treated in the relevant policy fields (maintenance of law and order, anti-racist policy) or, in Luhmanian terms, in the legal and education systems (Stichweh, 2005) without the involvement of political actors. In sum, the tolerance dilemma is addressed in France by the political system and its main protagonists, political actors, who have the legitimate authority to take action against right-wing radicalism because it is the role of the political system to provide orientations in questions that cannot be resolved in other systems (King and Thornhill, 2003, p. 70).

Further research directions The last few years were marked by the swift emergence of the radical right-wing party Alternative für Deutschland, which, contrarily to the Republikaner or the DVU2 in the 1990s, established itself on the entire territory. For the first time since 1945, a radical right-wing party has a fraction of seats in the Bundestag as

222  Conclusion well as in all state parliaments. The French and German radical right are now characterised by strong parties. This new situation challenges how German political parties and political actors in parliaments react to right-wing radicalism. Whereas some scholars have discussed the effects of radical right-wing parties on the politics and on immigration policies of European liberal democracies towards more restrictive positions (Heinisch, 2003; Schain, 2006; van Spanje, 2010; Minkenberg, 2013; Mudde, 2013; Zobel, 2017), others question the capacity of German mainstream parties to further contain the AfD in the Federal Parliament now that representatives of the radical right party sit in parliamentary committees and introduce legislation at a rapid pace (Art, 2018). In any case, the presence of radical right parties in political institutions does impact politics and influences how political actors address right-wing radicalism in the political arena. Further research is needed to assess the impact of a strong radical right-wing party in the political arena on the policy addressing political radicalism. This book suggests that civil society widened the scope of its strategies, adapting to different kinds of radical right organisations. In the same vein, state institutions such as the intelligence service stepped up their surveillance of the youth organisation of the AfD, the most extremist group within the AfD, Der Flügel, and now considers the possibility of monitoring the AfD as a whole. These two examples corroborate the assertion that the presence of a significant radical right party in parliamentary institutions challenges the regulation of right-wing radicalism without changing its fundamental logics. In sum, the articulation between the political arena and the policy sphere needs to be explored. Another dimension which could be addressed in further research is the empirical effect of policy instruments on radical right-wing groups. Now that the determinants for state responses to the radical right have been identified, the effects of policy measures on the radical right (targets) should be assessed. Especially research on the effects of preventive programmes on the diffusion of radical rightwing ideas and attitudes would enable to highlight a still under-research area. Furthermore, the issue of knowledge circulation beyond national borders was not highlighted in this study. In the collected data, German policy actors regularly take part in several European initiatives sharing good practices with representatives from other countries, especially Scandinavian countries and the United Kingdom. Among French respondents, the circulation of knowledge at the national and regional levels was hardly perceived by the actors as part of their practices. A transnational circulation of knowledge could not be identified at all. In the context of a larger reflection on the harmonisation of policy practices driven by the European Union, it could be interesting to further explore the role of European institutions in the diffusion (or the absence of diffusion) of regulation models for responding to right-wing radicalism, and political radicalism in general.3 Finally, this book sought to build bridges with traditional questions of political science, one of them being the establishment of a political order in liberal democracies. Two models were presented. Studying responses to right-wing radicalism was fruitful because it touches upon the paradox of tolerance, and potentially to the boundaries of politics. In Germany, responding to the radical right is part

Conclusion  223 of the German militant democracy and has been marked by the identification of political enemies. A central manifestation of the political order is the sharp distinction between friends and enemies (the Political, Schmitt, 1963). The application of this vision is still visible in the language of policy-makers, who sharply distinguish extremists from activists of the democratic middle. This book, however, also showed that this Schmittian vision of politics had been evolving since the introduction of new actors and with the new orientations of the policy addressing right-wing radicalism in the 1990s. This caused the progressive blurring of the political and the increasing visibility of a public policy against right-wing radicalism and of political strategies in party politics. In the French case, by contrast, distinguishing between the notions of “politics” and “policy” makes it possible to understand the logics of the regulation of radicalism: the regulation of rightwing radicalism is largely conducted by political actors to serve political interests, and the actual policy on right-wing radicalism conducted by state actors remains relatively disconnected from politics. This last observation opens new theoretical avenues for reflection concerning the dynamics between politics and policy to illuminate how political radicalism is regulated.

Notes 1 For Luhmann, “a political system becomes legitimate if it can explain itself as legitimate, and if it can confer plausibility on the policies and laws to which it gives rise” (King and Thornhill, 2003, p.  74). Luhmann further argues “that the legitimacy of the political system hinges on its capacity to re-present broader principles of validity – values – in order to facilitate the ‘continual business’ of obtaining legitimacy” (Ibid., p. 93). 2 See Chapter 2 for a presentation of these political parties. 3 Regarding the study of responses to the radical right from a European perspective, see, for instance, Norman, 2017.

References Art, D. (2018). The AfD and the End of Containment in Germany? German Politics and Society, 36(2), pp. 76–86. Blyth, M. (2002). The Great Transformation: Economic Ideas and Institutional Change in the 20th Century. Cambridge: Cambridge University Press. Dryzek, J. (2000). Deliberative Democracy and Beyond. Oxford: Oxford University Press. Habermas, J. (1996). Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Cambridge, MA: The MIT Press. Hay, C. (2006). Constructivist Institutionalism. In: R.A.W. Rhodes, S. Binder and B. Rockman (eds.), Oxford Handbook of Political Institutions. Oxford: Oxford University Press, pp. 56–74. Heinisch, R. (2003). Success in Opposition – Failure in Government: Explaining the Performance of Right-wing Populist Parties in Public Offices. West European Politics, 26(3), pp. 91–130. King, M. and Thornhill, C. (2003). Niklas Luhmann’s Theory of Politics and Law. Basingstoke: Palgrave MacMillan.

224  Conclusion Minkenberg, M. (2013). From Pariahs to Policy-Maker? The Radical Right in Europe, West and East: Between Margins and Mainstreams. Journal of Contemporary European Studies, 21(1), pp. 5–24. Minkenberg, M. (2006). Repression and Reaction: Militant Democracy and the Radical Right in Germany and France. Patterns of Prejudice, 40(1), pp. 25–44. Mudde, C. (2013). Three Decades of Populist Radical Right in Western Europe: So What? European Journal of Political Research, 52(1), pp. 1–19. Norman, L. (2017). Defending the European Political Order: Visions of Politics in Response to the Radical Right. European Journal of Social Theory, 20(4), pp. 531–549. Saurugger, S. (2013). Constructivism and Public Policy Approaches in the EU: From Ideas to Power Games. Journal of European Public Policy, 20(6), pp. 888–906. Schain, M. (2006). The Extreme-right and Immigration Policy-making: Measuring Direct and Indirect Effects. West European Politics, 29(2), pp. 270–289. Schmidt, V.A. (2008). Discursive Institutionalism: The Explanatory Power of Ideas and Discourses. Annual Review of Political Science, 11, pp. 303–326. Schmitt, C. (1963). Der Begriff des Politischen. Berlin: Dunker & Humblot. Stichweh, R. (2005). Inklusion und Exklusion. Studien zur Gesellschaftstheorie. Bielefeld: Transcript. van Spanje, J. (2010). Contagious Parties: Anti-Immigration Parties and Their Impact on Other Parties’ Immigration Stances in Contemporary Western Europe. Party Politics, 16(5), pp. 563–586. Zobel, M. (2017). A Race to the Right? The Impact of Radical Right Parties on Immigration in Liberal Democracies from 1980 until 2013. Frankfurt Oder: PhD.

Index

Note: Page numbers in italics indicate figures and page numbers in bold indicate tables on the corresponding pages. actor-centred institutionalism 20 – 22, 21, 109, 218 – 219; combined with frame analysis 22, 22 – 23 actors 17 – 18, 109 – 112, 110, 111, 146 – 148, 147; collective 117 – 118; contrasting influence of, on bans 207 – 208; embeddedness of perceptions of 133 – 137; interests of 126 – 127; non-state, in public programmes 112 – 121; policy frame of, from security authorities 127 – 137; preventive 169 – 180; public, without repressive powers 121, 121 – 127, 122; shaping perceptions of French 128 – 130; shaping perceptions of German 130 – 133; types of, in France and Germany and 111 Aden, H. 158, 178 Adenauer, K. 63 administrative justice 137 – 141, 198 – 199 Adriano, A. 70 Alternative für Deutschland (AfD) 74 analytical framework in policy research 22, 22 – 23 anti-fascist provisions in France 97 – 99 anti-racist legislation in France 102 – 104 Archambault, E. 169 Ayrault, J.-M. 188 Backes, U. 5, 26, 29, 90 bans of right-wing groups 35, 185 – 188, 186, 188; cross-case analysis and conclusive outlooks on 207 – 210, 208, 210; in France 188 – 191, 194 – 202; in Germany 191 – 193, 202 – 207; as policy instrument embedded in policy

202 – 207; political use of law instrument in 194 – 202 Bardot, B. 100 Barthes, R. 52 Baudouin, J. 31 Benack, A. 94 Bleich, E. 18 – 19, 98, 102 Bloch, M. 7 – 8 Böhnhardt, U. 72 Bouarram, B. 58, 155 Brodeur, J.-P. 128 Brunerie, M. 59 Cambadélis, J.-C. 195 Canu, I. 29 Chirac, J. 59, 123 Christian Democrat Party 18, 88 – 89 civil society 37, 38, 54 – 55, 76, 118 classification of responses to the radical right 32 – 38, 33, 36, 38, 39 Club de l’Horloge 54, 55 Commission Nationale Consultative pour les Droits de l’Homme (CNCDH) 37, 110 – 111 Convention on the Elimination of All Forms of Racial Discrimination 92, 103 cordon sanitaire 8, 13n6, 34 co-regulation of radical right in Germany 115 – 117 Crépey, E. 201 criminal justice 141 – 146 De Benoist, A. 54 decision-making process in policy responses 152, 180, 180 – 181; among

226 Index security authorities 153 – 169; bans and (see bans of right-wing groups); legitimising disruptive instruments in 176 – 180; preventive actors in 169 – 180; reform agenda and 175 – 176; role of procedures in ban 208 – 210 dédiabolisation (de-demonisation) strategy 60 De Gaulle, C. 53 Delanoë, B. 157 democracy: defense of 16 – 18; militant 26, 28 – 32 demonstrations, right-wing 73, 153 Département Protection Sécurité (DPS) 58 – 59, 155 – 156 Dieudonné M’Bala M’Bala 61, 188 – 191, 195, 196 – 197, 200 – 201 DILCRAH 122 – 125, 172 – 173 Direction Générale de la Sécurité Intérieure (DGSI) 41, 100 – 101 Downs, W. 10, 34 embeddedness of actors’ perceptions 133 – 137 European Commission against Racism and Intolerance (ECRI) 92 extremism: co-regulation of 115 – 117; criminal justice and 145 – 146; framing of 214 – 215, 219, 223; militant democracy 26, 28 – 29; patterns of responses to 29 – 31; policing of 161; preventive actors and 171; see also right-wing radicalism Faisceaux Nationalistes Européens (FNE) 57 Fennema, M. 104 fieldwork 40 – 43, 110 Fillieule, O. 153, 156 Fillon, F. 60 Foucault, M. 5, 16 – 17 frames in responding to right-wing radicals 18 – 19, 185 – 187; combined with actorcentred institutionalism 22, 22 – 23; justice 137 – 146; NGO 112 – 121; see also actors France 4 – 7, 220 – 221; anti-fascist provisions in 97 – 99; anti-racist legislation in 102 – 104; assessment of responses to right-wing radicalism in 62, 62 – 63; bans in 188 – 191, 194 – 202; comparative policy studies on 7, 7 – 10, 8; criminal justice in 141 – 143; diversification of political responses

in, 1980 – 2001 55 – 59; FN’s electoral ups and downs and right-wing social mobilisation in, 2000 – 2017 59 – 62; legislative traditions in 96 – 104, 137 – 141; maintenance of law and order in 99 – 102; non-state actors in, evolving alongside the state 119 – 120; police powers in 153 – 157; political tactics against right-wing extremist activism in, 1960s 53; political use of law instruments in 194 – 202; popularity of right-wing social movements among youth of 60 – 62; référé liberté in 190, 198, 200; responses targeting violent movements in, 1950s 51 – 52; security authorities in charge of maintaining public order in 100 – 102; shaping perceptions of actors in 128 – 130; sporadic state responses and growing mobilisation of civil society in, 1970s 54 – 55 Frankfurter Rundschau 71 Frederiksen, M. 57 Freiheitliche Demokratische Grundordnung (FDGO) 85 Fréminet, M. 99 – 100 Front National (FN) 8, 31, 34, 54; consolidation and electoral success of 55 – 59; electoral ups and downs and social mobilisation by 59 – 62 Gayssot Law 58 Geddes, A. 93 German Federal Agency for Civic Education 37 Germany 4 – 7, 219 – 220; administrative justice in 141; assessment of responses to right-wing radicalism in 74 – 76, 75; bans in 191 – 193, 202 – 207; comparative policy studies on 7, 7 – 10, 8; consolidation of public policy against right-wing radicalism in, 2000–today 70 – 72; constitutional provisions establishing militant democracy in 82 – 86, 84, 105 – 106n4; construction of militant administration in 86 – 88; co-regulation of radical right in 115 – 117; criminal justice in 143 – 146; development of anti-extremist doctrine in 88 – 91; laissez faire as answer to right-wing extremist subculture in 66 – 67; Nationalsozialistischer Untergrund (NSU) 72 – 73; new

Index  227 challenges for responses to right-wing radicalism in, 2010s 74; policing in 157 – 162; political construction of legal doctrine in 82 – 96; preventive measures in 93 – 96, 95; reforming the antiextremist policy in 91 – 96; repression and reconciliation in, 1950 – 1979 63 – 65; responses to radical right before 1989 in 63 – 67; reunification of rightwing radicalism in, 1980 – 1989 65 – 66; right-wing radical demonstrations in 73; shaping perceptions of actors in 130 – 133; state failures in responding to the radical right in the post-reunification period in 67 – 70; surveillance in 162 – 169 Gewerkschaft der Polizei 160 Giraud, O. 6 – 7 Groupement de Recherches sur la Civilisation Européenne (GRECE) 54, 55 Guiraudon, V. 93 Habermas, J. 220 Heidenreich, G. 65 institutionalism, actor-centred 20 – 22, 21, 109, 218 – 219; combined with frame analysis 22, 22 – 23 interviews 42, 43 – 44 Jansen, F. 175 Jaschke, H.-G. 17, 91 Jellinek, W. 83 Jesse, E. 5, 29, 90 Jeune Nation (JN) 52 Jobard, F. 153, 156 Jospin, L. 195 justice: administrative 137 – 141, 198 – 199; criminal 141 – 146 Katzenstein, P. 110 Kiowa, A. A. 70 Kleffner, H. 175 Klingemann, H. D. 24 Köhler, G. 65 Koopmans, R. 32 Koselleck, R. 23 Kutschaty, T. 145 La Horde 113 Länder 43, 64 – 66, 68 – 70, 83, 85, 145, 157, 191

Latour, B. 140, 197 League against Racism and Anti-Semitism (LICRA) 189, 195 legal framework, French 99 – 102; administrative justice and 137 – 141; bans and (see bans of right-wing groups); criminal justice and 141 – 143 Le Monde 139 Le Mur show 61 Le Pen, J.-M. 52, 54, 57 – 59, 100, 155, 175 Le Pen, M. 60, 124 Lévy, A. 102 literature review on radical right-wing parties studies 26 – 32 Loewenstein, K. 28, 83 Lübcke, W. 132 Lynen von Berg, H. 94 Macron, E. 60 Malraux, A. 53 Mannheim, K. 28, 171 Marchais, G. 55 Marchandeau Decree-Law 103 Massoni, P. 155 Mayntz, R. 6, 20 Mégret, B. 58 – 59 Mélenchon, J.-L. 60 Méric, C. 61 – 62, 188, 189, 196 Merkel, A. 71 militant democracy 26, 28 – 29, 214; German constitutional provisions establishing 82 – 86, 84; patterns of responses to 29 – 31; state responses against 31 – 32 Minkenberg, M. 3, 24, 26, 32, 66 Mouvement National Républicain (MNR) 59 Mundlos, U. 72 Mythologies (Barthes) 52 Nationaldemokratische Partei Deutschland (NPD) 64 – 65, 71 – 72 national frames of responses to rightwing radicalism 104 – 105; political construction of legal doctrine in Germany and 82 – 96; repression and legislative traditions in France and 96 – 104 National Socialist Workers’ Party, Germany 63 – 64, 83 Nationalsozialistischer Untergrund (NSU) 70, 72 – 73 negative republicanism 13n4

228 Index non-governmental organisations (NGOs): as collective actor 117 – 118; common policy frame among 120 – 121; co-regulation by 115 – 117; diversity of methods and goals of 112 – 114; evolving alongside the state 119 – 120; funding of 149n3; preventive measures by 114 – 115, 170 – 172 non-state actors in public programmes 112 – 121; as collective actor 117 – 118; evolving alongside the state as strategic advantage 119 – 120; funding of 149n3; influence on prevention 170 – 172 Ordre Nouveau (ON) 53, 54 Organisation Armée Secrète (OAS) 53 Palier, B. 109 Parti Nationaliste Français et Européen (PNFE) 57 party politics and the radical right-wing parties 33 – 35 patterns of responses to extremism 29 – 31 Pedahzur, A. 30 Pétain, P. 97 Policeywissenschaft 41 policing: in France 153 – 157; in Germany 157 – 162 policy studies on right-wing radicalism 4 – 7, 7; comparative French and German 7 – 10, 8; further research directions in 221 – 223; inputs and instruments of 18 – 23, 22, 218 – 219; main results of 214 – 217, 215, 216; reconciling politics of defending democracy with 16 – 18 political tactics in response to right-wing radicalism 53, 194 – 202 Popper, K. 2 Poujade, P. 51 – 52 preventive strategies for the radical right 37 – 38, 38, 39, 93 – 96, 95; influence of non-state actors on 170 – 172; NGOs and 114 – 115; preventive actors as new policy segment for 169 – 180 prosecution of criminalised political activities 36 purges 36 QUANGO (quasi-autonomous nongovernmental organisations) 116 Rassemblement National (RN) 8 référé liberté 190, 198, 200

Renseignement territorial (RT) 41, 101 – 102 repressive power, public actors without 121, 121 – 127, 122 repressive responses to the radical right 35 – 36, 36, 39, 63 – 65, 176 – 180 responses to the radical right: actors’ perceptions of 17 – 18, 112 – 114, 128 – 133 (see also actors); bans as (see bans of right-wing groups); civil society and 54 – 55, 76, 118; classification of 32 – 38, 33, 36, 38, 39; decision-making process for (see decision-making process in policy responses); failures in 67 – 70; frames in (see frames in responding to right-wing radicals); hegemonic party and formulation of strategy based on ostracism in French 51 – 63, 62; laissez faire 66 – 67; political construction of legal doctrine in Germany and 82 – 96; political tactics 53, 194 – 202; preventive 37 – 38, 38, 93 – 96, 95, 114 – 115, 169 – 180; public actor response to 23 – 26, 25; repressive 35 – 36, 36, 39, 63 – 65, 121 – 127, 176 – 180; research methods on 39 – 44, 42; right-wing social mobilisation and 59 – 62; sporadic 54 – 55; state 31 – 32, 35 – 36, 36, 37 – 38, 38, 54 – 55, 67 – 70; summary of 38, 39 Rhodes, R. A. W. 116 right-wing radicalism 1 – 2; classification of responses to 32 – 38, 33, 36, 38, 39; comparative policy studies on 7 – 10, 8; demonstrations of 73, 153; FrenchGerman research on 4 – 7, 7; instruments of policy studies applied to analysis of responses to 18 – 23, 22; literature review on studies of 26 – 32; matrix of French and German parties of 27; party politics and 33 – 35; popularity of, among youth 60 – 62; use of policy measures against 2 – 4; see also responses to the radical right Rigoll, D. 64 Roth, R. 94 Rucht, D. 170 Sarkozy, N. 59, 101 Scharpf, F. 6, 20, 23, 152, 154 Schellenberg, B. 18 Scheuch, E. 24 Schröder, G. 71, 93, 125, 171

Index  229 Schröder, K. 126 secret défense 40 Section Carrément Anti Le Pen (SCALP) 56 security authorities 135 – 137; in charge of maintaining public order in France 100 – 102; decision-making among 153 – 169; policing by 153 – 162; policy frame of actors from 127 – 137; surveillance by 36, 162 – 169 Sidos, P. 52 state responses to the radical right 31 – 32; failures in 67 – 70; preventive 37 – 38, 38; repressive 35 – 36, 36; sporadic 54 – 55 Stöss, R. 91 Surel, Y. 109 surveillance 36, 162 – 169

Tackett, T. 196 Tagesspiegel 71 Taguieff, P. A. 31 Tixier Vignancour, J.-L. 52 tolerance 3, 10, 12 – 13n1 Tolerantes Brandenburg 133 – 134, 171 Union for Defence of Tradesmen and Artisans (UDCA) 51 – 52, 53 Valls, M. 188 – 189, 195 Vikernes, K. 100 Vu de droite (De Benoist) 54 Wagner, B. 67 Wetzel, J. 65 Zschäpe, B. 72