The concept and origin of fascism
The term “fascism” refers to a political ideology and form of government, which was particularly shaped by authoritarian movements in early 20th-century Europe. The word itself is originally derived from the Italian “fascio” (bundle, league); it was first used in connection with the movement “Fasci di Combattimento,” founded in Italy by Benito Mussolini. Fascism was significantly responsible for profound state and social upheavals, especially in Italy and Germany, and led to the establishment of totalitarian dictatorships. The precise delineation of the term is the subject of controversial academic and legal debate.
Legal Classification of Fascism
In legal terms, fascism is neither defined as a specific criminal offense nor as an independent legal concept, but it is reflected significantly in national and international legal standards, especially within constitutional, criminal, and international law.
Criminal Relevance
Although the term “fascism” is not a judicial category, fascist ideologies and actions are sanctioned under criminal laws in many countries. In German criminal law, for example, there is a direct prohibition on fascist organizations under Article 21(2) of the Basic Law (GG) as well as the prohibition of propaganda of National Socialist, racist, and xenophobic content pursuant to §§ 86 and 86a of the Criminal Code (StGB). These regulations explicitly address the glorification and promotion of fascist violence and arbitrary rule, especially when the liberal democratic order is at risk.
Ban on Fascist Organizations
The prohibition of extremist organizations that represent essential features of fascism – e.g., leader cult, glorification of violence, suppression of democratic structures – is based on § 129 StGB (criminal and terrorist organizations) and the Associations Act (§§ 3 ff. VereinsG). The ban includes not only the founding, but also supporting and promoting such organizations.
Criminal Liability for Symbols and Propaganda Tools
Fascist symbols and propaganda materials are prohibited under § 86a StGB if they refer to unconstitutional organizations. Criminal liability covers the dissemination, public use of symbols, and the production as well as import of such materials.
Criminal Liability for Expressions of Opinion
The dissemination of fascist ideologies may fulfill the offense of incitement to hatred under § 130 StGB, particularly with regard to incitement to hatred against parts of the population, attacks on human dignity, or approval of fascist-motivated crimes.
Constitutional Law Aspects
Protection of the Liberal Democratic Basic Order
In Germany, the Basic Law guarantees protection against fascist activities. Parties that adhere to fascist ideology may, in accordance with Article 21(2) GG, be banned if they seek to abolish the liberal democratic basic order. The Federal Constitutional Court decides on party bans by application pursuant to § 43 of the Federal Constitutional Court Act (BVerfGG).
Significance for Party and Association Law
The ban on fascist groups and parties not only affects their activities, but also their funding, property, and public appearance. Associations that pursue unconstitutional objectives are dissolved and their assets seized (§ 3 II VereinsG).
International Legal Standards on Fascism
International Law Context
The international condemnation of fascism took place especially after World War II. The ban on the reactivation of fascist-National Socialist organizations is part of international treaties, including UN resolutions against racism and intolerance.
European Law
The European Convention on Human Rights (ECHR) and the framework decisions of the European Union to combat racism and xenophobia oblige member states to investigate and sanction actions with fascist ideology. This also includes the prohibition of glorification of fascist regimes. In particular, Article 17 ECHR (prohibition of abuse) prevents fascist activities from invoking fundamental rights.
Distinctive Legal Features and Consequences of Fascism
Distinction from National Socialism
Although the term “fascism” serves as an umbrella term for various authoritarian movements, the distinction from National Socialism is legally significant. The Federal Republic of Germany often makes a clear legal differentiation between these two phenomena, especially regarding bans and criminal liability. The focus of criminal prosecution regarding National Socialism lies especially on the persecution and approval of crimes committed during National Socialism, whereas the term fascism is interpreted more generally.
Typical Legal Sanctions
Actions with a fascist background regularly have criminal and administrative consequences. In addition to fines and imprisonment, this includes bans on associations and parties, employment bans, and the seizure of propaganda materials.
Preventive Safeguards
In addition to repressive measures, there are numerous preventive mechanisms, for instance in the field of political education prevention, assembly control, and youth protection law. The significance of these measures also arises from international obligations to combat racist and totalitarian ideologies.
Case Law and Practice
Landmark Decisions in Germany
German courts have set out the requirements and boundaries for the prohibition and sanction of fascist activities in several landmark rulings. Particularly noteworthy are decisions of the Federal Constitutional Court concerning party and association bans, as well as rulings of the Federal Court of Justice regarding §§ 86a and 130 StGB. The courts consistently stress the necessity to protect the constitutional order and human dignity against fascist activities.
International Criminal Jurisdiction
After World War II, leading representatives of fascist regimes were brought before international tribunals – for example, in the Nuremberg Trials – to answer for war crimes and crimes against humanity. These proceedings established standards still valid today for action against totalitarian rule.
Conclusion
Fascism is not a strictly defined legal category, but a political and social phenomenon with far-reaching legal consequences. The protection of the liberal democratic order, the prevention of resurgence, and the prosecution of relevant crimes are central responsibilities of both national and international law. Consistent application of criminal, association, and constitutional law, as well as international cooperation, ensures that fascist ideologies and movements do not gain a foothold or space.
Frequently Asked Questions
Is the dissemination of fascist symbols punishable in Germany?
The dissemination of fascist symbols, in particular the insignia of unconstitutional organizations such as the National Socialist German Workers’ Party (NSDAP), is in principle a criminal offense in Germany under § 86a of the Criminal Code (StGB). This includes the public display, posting, or distribution of emblems such as swastikas, SS runes, or similar symbols clearly associated with historical fascism or National Socialism. An exception applies where use of the symbols serves civic education, the prevention of unconstitutional activities, art, science, research, teaching, or reporting on events of current affairs or history (the so-called social adequacy clause). Publication or use of the symbol in these contexts is exempt from punishment if the purpose is clearly recognizable. Punishable, however, can also be depictions in digital media or the sale of relevant items. International contexts as well as other fascist symbols not explicitly mentioned in German law may fall under this provision on a case-by-case basis, especially if there is a significant equivalence with National Socialism.
To what extent is supporting fascist organizations prohibited under German law?
According to § 129 StGB (formation of criminal organizations) and supplemented by § 86 of the Criminal Code (distribution of propaganda material of unconstitutional organizations), it is prohibited in Germany to participate in the activities of organizations that refer to fascist ideologies or goals and have been classified as unconstitutional. This includes any type of organizational support, funding, advertising, or provision of infrastructure. Both active membership and logistical assistance for such organizations are punishable, and both national and international organizations may be covered. The mere promotion of activities hostile to the constitution is sufficient grounds for investigation. Law enforcement regularly enforces bans on such organizations and also prosecutes individuals who can be shown to have links or to provide support.
What are the legal consequences of glorifying fascism in public?
The glorification of fascism can be classified under German law as incitement to hatred (§ 130 StGB) or as approval of crimes (§ 140 StGB) if it is likely to disturb the public peace or violate the dignity of victims of fascist tyranny. This includes all forms of public statements, gatherings, publications, or performances that positively portray or justify fascist forms of rule, ideologies, or acts. In addition to fines and imprisonment, perpetrators may face harsher penalties in the case of repeat offenses. Courts particularly consider the scope and intensity of the statements as well as the target groups. Furthermore, bans on practicing a profession, on associations, or access restrictions to certain employment (e.g., in education or the media sector) may be imposed.
How does the Basic Law protect against fascist tendencies?
The Basic Law of the Federal Republic of Germany contains several protective mechanisms against fascist activities. Particularly relevant is Article 21, which states that parties which, by reason of their aims or the behavior of their supporters, seek to undermine or abolish the liberal democratic basic order are unconstitutional. However, only the Federal Constitutional Court can prohibit such a party. Moreover, associations may be banned in accordance with Article 9 Basic Law if they violate the constitutional order. Also relevant are the protections against abuse of the freedom of expression (Article 5 GG) and the freedom of assembly (Article 8 GG), which may be restricted by law, for example to protect against incitement to hatred and violent depictions. Thus, right-wing extremist or fascist groups are prevented from abusing basic rights for anti-constitutional purposes.
What legal measures can be taken against fascist propaganda on the internet?
The fight against fascist propaganda on the internet is carried out using a combination of several legal norms. Central here are the Network Enforcement Act (NetzDG), the Telemedia Act (TMG), and the relevant criminal provisions against incitement to hatred (§ 130 StGB), use of symbols of unconstitutional organizations (§ 86a StGB), as well as the prohibition of disseminating such content under § 86 StGB. Service providers are obliged to block or remove obviously illegal content promptly once notified. Authorities may, under certain conditions, request user information and secure digital evidence. On international platforms, mutual legal assistance rules apply. In addition, it is possible to prohibit the dissemination of entire platforms or accounts by court order if they systematically spread fascist content.
How are events with a fascist background treated legally?
Assemblies, marches, or other events with an obvious fascist background can be dissolved or banned under the Assembly Act (§ 15 VersammlG) if there are facts indicating an immediate danger to public safety and order. This particularly includes events expected to glorify or revive fascist ideologies. Authorities are obliged to recognize threats early and to take preventive action if necessary. Violations of official bans are punished with severe penalties. Individuals who participate in or organize prohibited events may also be subject to criminal or administrative fines. In disputed cases, courts always weigh the right of assembly against public security.
