36 Harv. Int'l. L. J. 1 (1995)
Intolerant Democracies

handle is hein.journals/hilj36 and id is 9 raw text is: VOLUME 36, NUMBER 1, WnNTER 1995

Intolerant Democracies
Gregory H. Fox*
Georg Nolte**
If there be any among us who wish to dissolve this union, or to
change its republican form, let them stand undisturbed, as monu-
ments of the safety with which error of opinion may be tolerated
where reason is left free to combat it.
Thomas Jefferson1
This will always remain one of the best jokes of democracy, that
it gave its deadly enemies the means by which it was destroyed.
Joseph Goebbels2
International law is increasingly concerned with national transitions
to democratic government. The holding of free and fair elections alone,
however, provides no guarantee that a democratic system will become
firmly established and capable of resisting challenges by anti-demo-
cratic actors. The question thus arises of how intolerant a democracy
may become toward such actors in order to preserve itself without
relinquishing the claim of being democratic. This problem has arisen
on a number of occasions, perhaps the most dramatically upon the
cancellation of the second round of the Algerian elections in early
This Article explores the legal issues raised by the presence of
anti-democratic actors in an otherwise generally .'free and fair electoral
process. The Article first examines two models of democratic govern-
ment-the procedural and the substantive-which take opposite per-
* Adjunct Professor of Law, New York University School of Law.
** Dr. iur., Fellow, Max Planck Institute for Comparative Public Law and International Law,
Heidelberg, Germany.
We would like to thank Thomas Franck, Jochen Abr. Frowein, Larry Garber, Marthias Herde-
gen, Steven Ratner, David Richards, Anne-Marie Slaughter, Helmut Steinberger, Paul Szasz, and
Rudiger Wolfrum for their invaluable comments on earlier drafts of this Article.
1. Thomas Jefferson, First Draft of the Inaugural Address (Mar. 4, 1801), in 8 THE WRITINGS
OF THOmAS JEFFERSON 1, 3 (Paul Leicester Ford ed., 1897).
2. Das wird immer einer der besten Witze der Demokratie bleiben, dass sie ihren Todfeinden
die Mittel selber stellte, dutch die sie vernichret wurde, quoted in NATIONALsOzIALIsTISCHE
DIKTATUR 16 (Karl Dietrich Bracher et al. eds., 1983).

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