On the Nexus of Eternity Clauses, Proportional Representation, and Banned Political Parties

16 Election Law Journal 237 (2017)

10 Pages Posted: 18 May 2017

See all articles by Rivka Weill

Rivka Weill

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School

Date Written: May 18, 2017

Abstract

Constitutional democracies do not usually tie their choice of proportional election with the need to counterbalance this choice by adopting either bans on extremist political parties or the “unconstitutional constitutional amendment” doctrine. Nor do scholars offer countries a “menu” from which they may choose between majoritarian election systems or a system combining proportional representation with either bans on extremist political parties or absolutely entrenched values. This article argues that such a nexus exists empirically and may be justified normatively. This article also argues that when a country has one of the mechanisms — either a ban on extremist political parties or an eternity clause — it may legitimately infer the implicit existence of the other, as both are complementary and intended to protect the same constitutional values. The article explains the benefits that may arise from treating the two tools as mirror images of one another. While it may be easy to criticize countries for using militant democratic tools, majoritarian democratic countries should examine the implications of their own election methods. Some may be surprised to discover that they too compromise democratic ideals to sustain long-term democratic ends.

Keywords: Militant Democracy, Ban on Political Parties, Eternity Clauses, Unamendability, Unconstitutional Constitutional Amendment, Proportional Representation

Suggested Citation

Weill, Rivka, On the Nexus of Eternity Clauses, Proportional Representation, and Banned Political Parties (May 18, 2017). 16 Election Law Journal 237 (2017). Available at SSRN: https://ssrn.com/abstract=2970667

Rivka Weill (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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