Far-right parties and constitutionalism: A comparison between Germany and the Netherlands

Rodrigo Kaufmann

Tilburg University

Support for illiberal, far-right political positions – typically expressed as anti-immigration, anti-women’s reproductive rights, and anti-sexual diversity rights – has been on the rise for a few years now in many parts of the Western world. That this political reality poses a serious threat to our modern, liberal constitutional democracies is not a particularly original insight, but just how gravely it endangers the enterprise of modern constitutionalism might only become apparent when considering constitutionalism’s complex structure as what Luhmann called a structural coupling between the realms of politics and law.  In this post, I will explore how the rise of far-right political support poses a challenge for constitutional systems, what two radically different responses – those in the Netherlands and Germany – look like, and how constitutionalism’s complex structure becomes apparent from them.

The German Approach: Constitutional System as Law

In Germany, the prevailing approach when facing illiberal or antidemocratic political parties is to counter them with legal / judicial mechanisms. The German system, due to its recent history, is particularly focused on limiting the ability of illiberal parties to fundamentally disrupt the foundations of the constitutional order. For that purpose, the German constitution (the Grundgesetz) contains an eternity clause stating that structural principles, such as human dignity, democracy, and the rule of law, are unamendable (art. 79). It also foresees procedures to ban political parties if their political platform goes against the fundamental institutions and structures of the constitutional order; and they can be excluded from state funding for the same reason. Within parliament, critical decisions, such as certain appointments, require majorities of 2/3, ensuring (ideally) that a broad political spectrum supports the relevant decision. The constitutional structure, then, is designed to carefully look at the political context within which the system is operating at different stages, and to intervene and disrupt, whenever deemed necessary, the functioning of the political realm.

This system is now being put to an especially difficult test with the results of elections in the federal states (Länder) of Thuringia, Brandenburg and Saxony, in which the far-right Alternative für Deutschland (AfD) received vote shares of around 30%, securing one first place and two very close second places. The political response to these results has fundamentally mirrored the institutional guidelines sketched above: All remaining parties have, more or less decisively, excluded a cooperation with the AfD, effectively keeping the party from any participation in the formation of a government in those Länder.

The Dutch Approach: Constitutional System as Politics

The Dutch response to the vote share (24%) achieved by Geert Wilders’ far-right Partij voor de Vrijheid (PVV) in the past parliamentary elections could be defined as radically opposed to the German approach. A new governmental coalition led by the PVV and including the Volkspartij voor Vrijheid en Democratie (VVD), the Nieuw Sociaal Contract (NSC), and the BoerBurgerBeweging (BBB) was formed following a long negotiation. The resulting government has been dubbed the “most right-wing government in the country’s recent history”.

This unhindered “political” response is all the more surprising for an external observer considering some of the Netherlands’ very unique institutional features: besides there not being a formal process to ban political parties or thresholds for parliamentary representation, the Netherlands even lacks the globally-common constitutional review of legislation, with art. 120 of the Grondwet explicitly limiting that possibility (“The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts”).

When compared to Germany, the Dutch institutional system and corresponding political approach is much more strongly based on the autonomy of the political realm, with a constitutional system designed to interfere as little as possible with its own internal political dynamics.

Constitutional Complexity

These profoundly diverging approaches show the complexity of the constitutional realm, based on a synchronous coupling and decoupling of institutional output from political inputs – critically, voting results and public opinion. When taking that complexity into consideration, the challenges for each of the – certainly, simplified and typified – approaches sketched above become apparent.

Institutionally considered, the most obvious risk the Dutch approach implies is a capture of critical institutional infrastructure, as has been observed in countries such as Poland and Hungary. Ironically, however, seen from this perspective, one of the typical features of the Dutch institutional realm, the lack of a constitutional court (which is considered a weakness by quite a number of scholars and politicians; see, for example, this blog by Niels Graaf), shows its advantages. Indeed, its absence means that the strategy of “packing the court”, which in most modern constitutional systems is the most obvious path for political parties in government to ensure continued political influence even after being voted out of office, is simply not available. That, however, is far from meaning that the institutional integrity of the Dutch constitutional system is safe, as recent discussions on emergency legislation show. Even if it doesn’t seem to be the focus right now with a political agenda largely centered on immigration, the fact that the Dutch system, when compared to Germany, relies on a higher level of consistency between political input and institutional output carries the obvious risk of using the system against itself in terms of democratic alternation in power, by limiting the opposition’s chances of becoming a majority in the next election.

While the German system addresses precisely those issues by foreseeing the measures briefly discussed above – over the last few weeks, a discussion about banning the AfD has dominated the German constitutional scene – it might be legitimately questioned whether that’s where the (constitutional) story should end. Indeed, a primary confrontation of the AfD through legal means leaves fundamental political questions open, such as the political fate of supporters and sympathizers of the AfD. It is highly unlikely, or at least not to be assumed, that they should suddenly discover their preference for mainstream parties. This is especially the case considering that the political discourse has made sure to emphasize, over and over again during the last years, the far-right, extremist character of the party, which is, in fact and as is publicly known in Germany, being observed by the German domestic intelligence as potentially far-right extremist. The pseudo-legalistic response by remaining political parties has also evident political downsides, if one considers that as a structural opposition party, the AfD can capitalize the very comfortable position of criticizing everything going wrong – mostly attributing these issues to immigration – and then claim that it could do better, without ever having to actually prove it and assume political responsibility.

The Only Way Forward

Rising political support for illiberal political parties, as it seems, highlights the complexity of modern constitutional systems and the fundamental irreducibility between the spheres of law and politics. Strategies seeking to counter the rise of illiberalism focusing on only one of these spheres risk jeopardizing their own success; the right answer must mirror the complexity of the system it is trying to steer. Perhaps that insight is one of the few things we can draw from these difficult times.

Rodrigo Kaufmann is assistant professor of constitutional and administrative law at Tilburg University.

Suggested citation: Rodrigo Kaufmann, ‘Far-right parties and constitutionalism: A comparison between Germany and the Netherlands’ IACL-AIDC Blog (5 November 2024) Far-right parties and constitutionalism: A comparison between Germany and the Netherlands — IACL-IADC Blog