- I. Offences against the regime de lege lata
- II. Offences against the democratic system of government de lege ferenda
- 1. Revolution
- 2. Acts concerning an unlawful party and organization
- 3. Causing harm to the freedom of decision and freedom of action of governmental institutions by the use of violence or threat of violence
- 4. Repudiation of the democratic system of government and denial of its legitimacy
- 5. Conclusion
- 6. Law Proposal
- III. Endnotes
The democratic state is a social value that deserves and demands protection in criminal law. Dissolution of the democratic regime is a direct and immediate violation of the fundamental rights of its citizens, which creates a basis for the continuous and tone infringement of the rights of those living under an undemocratic regime. The protection of a democratic regime derives from the protection granted to its citizens; the individual can only maintain and exercise his fundamental rights within a properly functioning physical and political framework.
Offences against the democratic regime include: revolutionary activity, including attempts and preparations for a revolution, as well as the establishment of an organization and participation as a leader or member in an organization whose aim is the use or the threat of the use of force to establish or change the system of government, to destroy or to harm a government institution, or to unlawfully harm the proper constitutional functioning of the institutions of a government.
An activity that harms or endangers the organizational and functional structure of the democratic state with the aim of destroying it or its institutions is a very dangerous activity. Such activity might include revolution, i.e. activities that prevent the state`s institutions from performing their constitutional duties. The dangers and the criminal nature of a revolution derive from two cumulative factors: the severity of the objective – to harm the democratic state – and the element of association for this purpose. Proper protection of the democratic regime requires prohibiting acts including attempts and preparations for a revolution; the sentence for acts of preparation should be at half of the maximum sentence prescribed by law for revolution and attempted revolution.
The establishment of an organization and participation as a leader or member in an organization whose goal is the use or threat of the use of force against the democratic regime and its institutions are a criminal phenomena and offence; such organizations are unconstitutional party and unlawful organization against the regime. Prohibited is the active, not passive, membership, i.e. intensive participation in activities to advance the purpose of the organization.
The use and threat of the use of force against a state institution (e.g. the Parliament, the Government or one of its members) with the objective of influencing its functioning or his or her performance, is a special and more serious – although more limited – from the regular phenomenon of extortion. Extortion of state officials while acting in an official capacity could harm the entire public or, at least, a large sector of the public. Nonviolent strike do not fall within the bounds of grave actions that state officials are unable to withstand, and therefore, does not fall within the scope of the offence.
Offences against the structure and functioning of a regime, such as sedition, are political crimes ensuing from conflict between the perpetrator of the offence and the political regime of the state. Democracy in government is a vital social interest that deserves and demands legal protection. The protection of democratic forms of government is a corollary of the protection granted to citizens of the state. It is designed to enable the state to perform its duty to protect the fundamental rights and interests of the citizens of that state. Thus, protection of the democratic system and its functioning is a means to achieve the supreme goal of protecting the individual. The individual can only maintain and exercise his fundamental rights within a properly functioning democratic framework. The dissolution of democracy directly and immediately violates the fundamental rights of the citizens and creates a basis for the continuous and tone infringement of the rights of those living in the non-democratic regime. Therefore, subversion of the political framework harms the state`s ability to act on behalf of its citizens.1 There can be no doubt that society’s interest in protecting democracy is of vital importance.
Offences against the regime are complex phenomena from a societal and legal point of view. Freedom of expression and freedom of association are regarded as the constitutional pillars of democracy, and the limitations imposed on these freedoms – which violate them in the name of the protection of democracy – demonstrate the “democratic dilemma” in all its force. This issues raised relate to modes of protecting democracy, namely, those measures which can be used to protect democracy without disproportionately violating democratic values, or put differently, ways of protecting democracy employing measures that do not restrict democratic rights and interests.2
This article will discuss de lege lata and lege ferenda of offences against the democratic regime, i.e., harm to the structure and functioning of the democratic regime.
The development of the offense of sedition in English common law has influenced the development of the offense of sedition in modern English, Canadian, Australian, Israeli and even American law. The offense of sedition in English law was created and shaped by case law.3 The offense was born within the monarchical system of government where to rule was perceived as a right vested in the King. The equation of the political entity with the royal family, many years before the emergence of such concepts as ‘peoples’ and ‘nations’, resulted in very few activities being accepted as legitimate opposition. Political opposition falling outside this narrow field was labeled ‘treason’. Legislation enacted in 1351 went so far as to prohibit a person from scheming or even imagining the death of the King, Queen, or the King’s eldest son, the heir to the throne. Naturally, any act accompanied by such intention was prohibited. The law also protected governmental functionaries (including judges), and prohibited any act that could infringe the royal family honor, title or governmental authority and rights, or violate the dignity of women belonging to the royal family.4 It is generally accepted that the origin of the offense of sedition in modern English law lies in the 1275 statute forbidding insults against public officials (scandalum magnatum). Following the abolition of the Star Chamber by Parliament in 1641, the jurisdiction to deal with, and indeed develop these offenses, was transferred to the ordinary courts.
In 1704 it was held that scandal of government gave rise to the criminal offense of sedition.5 The offense of sedition developed first as the offense of defamation. In the second half of the 17th century, the offense was extended by the court and it was held that violating the liberty of the King fell within the framework of sedition. At the end of the 18th century, together with the political and social regime changes that took place throughout Europe as a result of the French Revolution and which introduced greater participation of citizens in government, criminal protection of the regime was redesigned within the framework of the offense of sedition, including seditious libel/speech and seditious conspiracy.6 At the same time, the scope of legitimate political opposition remained very narrow. Conspiring against the regime was completely prohibited and expressions of opposition to the regime continued to be significantly restricted.7 According to the case law, the offense was intended to strengthen loyalty to the state and its institutions.8 It is generally accepted that the offense of sedition at the time was unclear, and that prosecutions for that offense were motivated by political interests. There is evidence that during that period great discomfort was felt regarding the scope of the offense which made it very difficult to hold public debates on political and social issues. In this spirit, Stephen noted: ”the practical enforcement of this doctrine was wholly inconsistent with any serious public discussion of political affairs is obvious, and so long as it was recognized as the law of the land such discussion existed only on sufferance”.9
Towards the end of the 19th century and with the beginning of the influence of currents of political thought supporting democracy, a certain change occurred in the formulation of the offense of sedition10 – primarily led by the courts. In the Burnes case,11 the court acquitted a labor leader who had been charged with sedition after giving a fiery speech at a massive demonstration in London, where he had called for a review of government policy towards the unemployed. When instructing the jury, the judge ruled that in order to prove the elements of the offense of sedition, it was necessary to show that the act was intended to lead to hatred, contempt or hostility towards the regime, or alternatively was intended to cause political or social changes through illegal means. The court emphasized that for a conviction to be obtained it had to be proved that the content of the expression and purpose of the speaker were directed at bringing about violence.
The primary question facing the drafters of the offense concerned the definition of ‘illegitimate activity’, particularly in view of the importance attached to drawing the appropriate boundary line between what was permitted and forbidden. Originally, the boundary line was placed right on the edge of the public sphere: blocking activity against the regime by prohibiting the publication of certain expressions –“seditious words” or “seditious libel” – or banning organization for a practical activity –“seditious conspiracy”. With the reformulation of the offense in the late 19th century,12 the courts were accorded wide discretion and the new provision merely characterized the actions as requiring a tendency to incite, or potential for sedition (“any act done, or words spoken or written and published, which has or have a seditious tendency”). As part of this definition a number of illegitimate behavioral characteristics that had ruled by the case law were grouped into a uniform definition of “seditious intention”; still, this definition too was drafted very broadly:13
“(1) to bring into hatred or contempt, or to excite disaffection against, the Sovereign or the Government and Constitution of the United Kingdom or either House of Parliament, or the administration of Justice; or
(2) to excite the Sovereign’s subjects to attempt, otherwise than by lawful means, the alternation of any matter in church or state by law established; or
(3) to incite persons to commit any crime in disturbance of the peace; or
(4) to raise discontent or disaffection amongst the Sovereign’s subjects; or
(5) to promote feelings of ill-will and hostility between different classes of those subjects.”
In terms of the mental element, the English offense of sedition requires intention on the part of the perpetrator: “Any act done … with a seditious intention”. The intention relates to the final purpose of the act, that is, the social consequences which it can cause and by reason of which it is prohibited.
English law contains a qualification under which legitimate criticism, permitted political activity and the like are not considered seditious intent even if, prima facie, they fall within the definition. It has also been held that “truth” does not constitute a defense to this offense.14
Notwithstanding the development of English governmental mechanisms during the 20th century, the definition of illegitimate political activity did not change in any real sense, and the sweeping ban on all political activity that could destabilize the regime remained in place.15 It is widely agreed today that in England considerable parts of this offense are overly broad and arbitrary.16 The English courts tend to reduce the ambiguity and scope of the prohibition to some extent. Already in 1909, it was held in the Aldered case17 that the central element of the interpretation of sedition is the seditious content of the speech. In that case charges were brought against the journal Indian Sociologist which called for the independence of India from British imperialist rule. Independence, the paper argued, could only be achieved through subversive activity against British rule in India. The paper took a stance praising anti-regime activities and denouncing the execution of political criminals, including murderers. As a result of the publications, the journal was charged with the offense of sedition. According to the judgment, the meaning of the words was an essential element for establishing guilt: “was the language used calculated, or was it not, to promote public disorder or physical force or violence in a matter of State?”.18
The court examined this question in light of the circumstances, the audience which was exposed to the publication, the general atmosphere and the like: “In arriving at a decision of this test you are entitled to look at all the circumstances surrounding the publication with the view of seeing whether the language used is calculated to produce the results imputed; that is to say, you are entitled to look at the audience addressed, because language which would be innocuous, practically speaking, if used to an assembly of professors or divines, might produce a different result if used before an excited audience of young and uneducated men. You are entitled also to take into account the state public feeling. Of course there are times when a spark will explode a powder magazine; the effect of language may be very different at one time from that it would be at another. You are entitled also to take into account the place and mode of publication.”19
In the early 1990s a petition was submitted to the court in England in the Salman Rushdie affair.20 The petitioners asked for criminal proceedings to be instituted against the author of “The Satanic Verses” on grounds that he had insulted Islam and its followers (the offense of violating the religious feelings of the public, blasphemy) and the offense of sedition, the broad formulation of which, as described above, also included a publication that could lead to dissatisfaction or resentment among the inhabitants of the country or strife or feelings of hostility between different sections of the population. The court dismissed the petition and held that the offense protected the regime and therefore did not prohibit the creation of dissatisfaction or resentment among the inhabitants of the land. The court adopted the words of Lord Cockburn,21 whereby: “the usual objects of the offence [of seditious libel] are the Sovereign, The Houses of Parliament, the Administrators of Justice, Public Officers and Departments wielding and representing the State’s power or dignity. It is the public Majesty which must be assailed, and that must be required to be protected. Sedition in the same thing, in principle, against the State with misconduct of the member of private society who, because he dislikes something that is done, insults the president and defies the majority. The guilt of sedition is often described of consisting of its tendency to produce public mischief… and so it is. But it is not every sort of mischief that will exhaust the description of the offence. It must be that sort of mischief that consists in and arises out of directly and materially obstructing public authority”.22
Based on the Canadian ruling in the Boucher case,23 the court held that in order to allow a conviction for sedition it was necessary to prove the existence of an intention to inspire the commission of acts of violence or illegal actions against a governmental institution, or disrupt public order in a manner directed against a governmental institution.24 Such an interpretation greatly expands the boundaries of permissible political activities and narrows the scope of the offense of sedition in that it is designed to protect the regime alone. According to the English court, the basic principles inherent in the concept of democracy require that the scope of prohibited activities be confined to those that endanger the structure of the regime or public safety:“There may indeed be breaches of the peace which may destroy or endanger life, limb, or property, and there may be incitement to such offences, but no imaginable censure of the government, short of a censure which has an immediate tendency to produce such breach of the peace, ought to be regarded as criminal.”
In the legal literature in England there is no doubt that the offense of sedition as currently formulated, is vague and sweeping to an extent which is inconsistent with a democratic regime. Accordingly, the prevailing view holds that the existing prohibitions must be greatly limited to the extent of being completely repealed.25
The definition of sedition in Israeli law26 is identical to the definition given to the term in English law; however, while the minority view in Israeli law – similar to the position in England – is that the offence of sedition is only designed to protect the regime, the majority view holds that the offence of sedition is intended to protect public order, in the sense of public unity.27 Like in England, harsh criticism has been voiced against the offences of sedition in Israeli legislation and both the case law and the legal literature have argued that these clauses are an archaic remnant of the British Mandate, having originating in the common law of earlier centuries and contradicting fundamental principles of the democratic regime, criminal law and constitutional law.
Thus, for example, the Supreme Court of Israel held in the Kahane case: “The language of the offence is too vague and its boundaries are too broad. It reflects a world view which is not democratic. It is compatible with a Mandatory regime, which is not the government of the people, by the people, for the people. It does not give sufficient weight to freedom of expression.“28 The broad and vague boundaries of the offence of sedition can be misused by the state prosecution service or, at the least, might lead to a false conviction. An example can be seen in the Aliyya case decided by the Supreme Court, where the appellant, a Palestinian resident of the West Bank, photocopied flyers calling for a general strike. The Supreme Court ruled that:“a strike by the Arab population causes great damage to both property and people in the state and, in my view, the call to institute a one-day general strike is as serious as calling upon children to rise up against the state, throw stones against soldiers and passers-by and cause damage to vehicles traveling on the roads, thereby endangering human life.”29 Another relevant judgment is Anabtawi v. State of Israel,30 the circumstances of which were as follows: during the Gulf War in August 1990, in a drunken quarrel with a neighbor, Anabtawi shouted “kill the Jews… I will bring Saddam Hussein to kill you…I will bring an intifada upon you”. Anabtawi was convicted in respect of these statements for the offence of publishing acts of sedition and was sentenced to two years in prison. There is no doubt that the offence of sedition was never intended to apply to such a situation, namely a drunken dispute amongst neighbors where the statements were devoid of any potential political impact.
Canadian law absorbed the common law offence of sedition and defined the anti-regime acts which would be prohibited in Chapter II of the Penal Code, with some of the acts falling within the scope of the offence of treason and others within the scope of sedition. The offence of sedition prohibits acts made “with seditious intention”; however, no comprehensive definition is given of the term “sedition” and Section 59 states that a person who carried out one of the following acts will be deemed to have met the requirement: “teaches or advocates, or publishes or circulates any writing that advocates the use, without the authority of law, of force as a means of accomplishing a governmental change within Canada”. Acts of sedition are “seditious words, seditious libel and seditious conspiracy”. Of particular importance is the Boucher judgment31 which, as noted, had an impact on the interpretation of the term “sedition” in English law.32 The defendant in that case was a member of the “Jehovah’s Witnesses” religious sect; he had distributed pamphlets sharply criticizing the treatment received by members of the sect, their persecution by the authorities, the attacks committed by large groups against individuals for proselytizing in certain neighborhoods, the fact that members of the sect had been convicted of breaches of the peace when in fact the driving force behind those convictions were members of the Roman Catholic Church. The charges against the defendant asserted that the distribution of the pamphlets could create hate and discontent between the members of the “Jehovah’s Witnesses” sect and those who were not members of the sect. The court ruled that sedition was a crime against the regime only. “Neither language calculated to promote feelings of ill will and hostility between different classes of His Majesty`s subjects nor criticizing the courts is seditious unless there is the intention to incite to violence or resistance to or defiance of constituted authority”.
The accepted position in Canadian law is that the origin of the offences against the regime is the ancient common law dating back hundreds of years; the offences are vaguely worded and inconsistent with principles of democracy, including freedom of expression, and that therefore offences against the regime have to be reformed in a manner consistent with the Canadian Charter.33 According to the Law Reform Commission set up to consider the matter, an offence against the regime should be defined as the use of force aimed at harming the freedom of action or freedom of decision of a member of the legislative, executive or judicial branch of the federal or district government.34
The Australian law offence of sedition was enacted in 1914, albeit it too originated in English common law. The offence takes two forms: (a) seditious enterprise: any person who engages in or agrees or undertakes to engage in a seditious enterprise, in order to carry out a seditious intention; and (b) seditious words: any person who writes, prints, utters or publishes seditious words expressing a seditious intention. The Australian courts dealt with the offence of sedition in only a few cases, particularly in 1949-1953 a period which saw a strengthening of the government’s anti-communist approach.35 One example was the Burns case of 1949, when the court convicted Burns, one of the leaders of the Communist Party of Australia, of the offence of sedition in respect of a remark made during a public debate between the leaders of the Australian Communist Party and the leaders of the ruling parties. Burns was asked what the Australian Communist Party would do if World War III broke out; Burns replied that he was opposed to War, but if War broke out, it would be between the imperialist United States and Great Britain and the Soviet Union. The questioner repeated the question and asked for a direct answer, and Burns said that if a World War would be ignited between the Soviet Union and the imperialist United States and Great Britain, he and his party would fight alongside the Soviet Union.36
Another case concerned Sharkey, Secretary of the Australian Communist Party. A journalist asked Sharkey in a telephone interview what he would do if Soviet troops landed in Australia –would he take the same position as that expressed by the leader of the French Communist Party, namely, join his communist colleagues and welcome the Soviet forces? Sharkey answered that such an event was not realistic because communism taught peace and the prevention of War, and that the Soviet Union would only go to War if attacked. In such a case the local workers would welcome the Soviets in the same way as they had welcomed them in Europe when the Soviet troops had liberated European nations from the yoke of the Nazi regime.37 In another case, a communist was convicted of the offence of sedition because of statements he had made about the Korean War and decrying Australia’s military involvement and assistance to South Korea.38 In all these cases, the courts convicted the defendants in unreasoned judgments, simply holding that the requirements of the offence of inciting sedition had been met, and as to the defendants’ mental state- that the offending conduct had been accompanied by the intention to cause violence or create public disorder or a public disturbance.
The prevailing view in Australian law is that the scope of the offence of sedition is both extremely broad and vague because it is satisfied with the “tendency” of the publication to breach public order, while the Australian courts – unlike the American courts –have failed to develop probability tests designed to protect freedom of expression, such as the “clear and present test” or “imminent lawless action” test.39 Moreover, the fact that the offence of sedition is worded in a broad and vague manner has allowed it to be used for illegitimate purposes and exploited for political repression and to achieve political convictions, as can be seen in the Burns and Sharkey examples described above. In the past, the offence of sedition was used to target communists, who were indeed convicted, even though an intense political debate was being waged at the time in which politicians from the ruling parties and journalists supporting them had made similar or even more serious statements, but were not prosecuted.
The prevailing view today is that it would be right to repeal the offence of sedition which unjustifiably violates the right to freedom of expression. In this regard, the Law Reform Commission stated: “Clearly, it should be an offence to incite the overthrow or supplanting by force or violence of the Constitution or the established Government of the Commonwealth or the lawful authority of the Government in respect of the whole or part of its territory.” Accordingly, the Commission suggested wording that included, inter alia, the following clauses:
“Inciting treason, interference with elections or racial violence 28 (1) A person must not, by means:
(a) Incite another person to overthrow, or supplant by force of violence:
(i) The Constitution; or
(ii) The Government of the Commonwealth; or
(iii) The lawful authority of the Government of the Commonwealth in respect to the whole or part of its territory.”
Political developments during World War II expanded the concern felt among sections of the American public about the strengthening of the left-wing and communist movements in the country, and as a result the federal offence of sedition was enacted in 1940, the original wording of which has been preserved to this day with only minor modifications. It is worth noting that while the origins of the offences of sedition in English, Israeli, Canadian and Australian law lie in the common law and the definitions of these offences in those systems is identical, the offence of sedition in American law is different and, in fact, is the product of the working of the democratic American regime, where the definition of the offence gives due consideration to fundamental rights, including freedom of expression and freedom of assembly, and accords them their proper constitutional status. The current offence of sedition, defined in Section 2384 –’Seditious Conspiracy’ and Section 2385 ‘Advocating the Overthrow of Government’, refers to overthrowing the government by force or violence and includes a wide range of behaviour and derivative behaviour – including solicitation, assistance, printing, publications (itself including a wide range of activities related to the issuing of publications) and involvement in the organization of a group aimed at advocating regime change –where the person knows of or intends (depending on the alternative being applied) the prohibited purposes ensuing from the prohibited conduct. The offence of sedition underwent its constitutional baptism by fire in 1951 in the Dennis case,40 which dealt with an appeal submitted by the leaders of the Communist Party in the United States against convictions for the offence of sedition that prohibited any advocacy, publication or organization calling for the overthrow of the government by violence or force. Rejecting the test of clear and present danger, the majority opinion relied on the judgment in the Gitlow case41; the Supreme Court choosing to adopt a policy of restraint towards the arrangement established by the legislature and refrain from narrowing it by means of tests that did not appear in it. Justice Frankfurter declared: “How best to reconcile competing interests is the business of the legislatures, and the balance they strike is a judgment not to be displaced by ours, but to be respected unless outside the pale of fair judgment”.42 The Supreme Court added that the mens rea required for all variants was intent.43
In the Yates case a distinction was drawn, for the purpose of interpreting the offence of incitement to sedition, between an expression intended to support the existence of a certain political system and an expression intended to support the existence of a particular prohibited (violent) activity designed to promote a particular political system. It was held that only an expression of the latter type would fall within the ambit of the offence.44
In the Scales case, criminal liability was extended to membership of organizations. That case concerned the Communist Party which allegedly sought to damage the regime. It was held that the prohibited membership was active membership and was confined to cases where the member was aware of the prohibited purposes of the organization.45
Finally, in the Brandenburg case, the Supreme Court considered the offence of sedition and held that “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”.46
English law,47 Canadian law,48 Australian law49 and Israeli law50 allow the defence of good faith according to which legitimate criticism, legitimate political activity and the like are not deemed to be seditious purposes, even if they prima facie come within the definition of sedition – where the sole purpose of the publication is to correct a fault or defect in the work of the regime. The “Truth” is not a defence to the offence of sedition.
The prohibition of publications capable of exciting hatred, contempt or disloyalty towards the authorities of the state, or a publication capable of exciting dissatisfaction, disaffection or enmity among the public – are the result of an undemocratic regime and can be understood against the background of such a regime, which does not attach importance to freedom of expression. These prohibitions have no place in a democracy. The defence to criminal liability of (good faith) legitimate political criticism is incapable of removing the defect and saving the criminal prohibition. Defences are intended to negate the wrongful character of an act harming a protected social value. When an act does not cause any harm to a protected social value there is no room for a defence. Moreover, the broad and vague scope of the sedition offence allows, and indeed in the past allowed this provision in English, Israeli and Australian law to be used as a political weapon and as a means of suppressing political views.51 The prohibitions against sedition are contrary to the basic principles of criminal law, constitutional law and the values of a democratic regime, and therefore they must be repealed.
The conceptual characterization of Democracy
The substantive democratic regime is regarded as a regime which draws its power from the citizens as a whole, and therefore it is defined as the government of the citizens and not as the government of the majority.52 The democratic ideal depends on true and equal participation of all the citizens in government, i.e., on the perception that all the citizens possess the basic wisdom which enables active participation in the collective decision making process. The primary purpose of the regime is to create a fair and stable balance between the desires of all the individuals who belong to the society while preserving their rights and freedoms.53
The social contract is the symbolic expression of the relations between all the citizens of the state: the contract sets out the agreed conditions for the establishment of the joint entity, which is based on physical factors (territory, population and the like) and metaphysical factors (regime factors). The social contract is, in essence, the formulation of a certain consensus among the members of the political community, a type of “itinerary” of the basic agreement reached by them. On the basis of this consensus a system of values and norm develops which forms the infrastructure for the life of the community.54
Thus, an examination of the characteristics of the democratic regime shows the existence of three sources of power and authority which are the fundamental elements of the democratic regime: all the individuals (the public), the political government (the government) and the framework of rules which regulate the relationships in society (the law). A complex relationship exists between these fundamental elements. In a democratic system, the individuals comprising society possess the fundamental power; in the deep sense of this concept they are the founders of the government and the law, as the source of the sovereignty of the state and the power of the authorities and the government depends on the citizens. This relationship between individuals and the government is made possible by means of rules of action at the heart of which is the grant of equal opportunity to all the individuals to influence the collective decision-making process.
According to one view of democracy, the democratic regime draws its power from the citizens and they wield the power of government; however, since it is inconceivable to have general social consensus on every issue, the decisions are made by majority. According to this view, the majority is able and entitled to make the decisions in society even if those decisions are critical for society and for the substance and nature of the regime, and the majority can even abrogate the democratic regime. The constitution which entrenches the system of government is not a “God-given” “sanctified value” and it is subject to change or abolition. Change and abolition of the constitution which establishes the system of the democratic constitutional regime fall within the competence of the political government, i.e., the legislature. Change and abolition of the constitution and the system of the regime are not prohibited per se; they are only prohibited if they are carried out through violent means. Change and abolition of the democratic system by “democratic” means, i.e., means which do not contain an element of violence – are not prohibited from the point of view of the democratic regime. In this context it is noteworthy that modern political theory does not grant unlimited freedom to the majority.55 The reason for this lies in the fact that the minority, including a single person, is entitled to broad protection which the majority cannot impair. The protection of the minority and the individual is entrenched in the basic values of the democratic regime, which are also defined as constitutional principles. This position is expressly anchored in constitutions or basic laws, in the statement that an ordinary law adopted by any majority will only be valid if it is compatible with the fundamental principles of the democratic regime.56
Modern legal and political literature has expressed a different approach to democracy which is more far reaching than that described here. According to this approach, the public in a democratic regime is subject to a system of values and basic principles of the democratic political structure itself. These values and basic principles primarily include such elements as the separation of powers and the independence of the judiciary, as well as basic rights such as human dignity and liberty, freedom of expression, equality and the like – values and basic principles which are not established by the public and are not subject to change in accordance with the transient feelings of the time. As the system of democratic life is subject to universal basic principles, it is conducted within the boundaries of a system of values where the source of its validity is external to the political system and is not determined or examined by means of the democratic process.57 The basic system of values is not constituted in a democratic way and does not draw the justification for its existence from the consent of those being governed; this system of values sketches the boundaries of the democratic activity and provides the primary source of its legitimacy. Accordingly, the basic democratic principle is not the sovereignty of the citizens or the rule of the majority but rather the hegemony of the basic system of values. This principled system can also include the presumption that there is value to the very existence of a democratic regime which is not subject to the democratic system. This perception is different from the perception of democracy as unlimited sovereignty of the citizens, because under it the democratic regime is committed to preventing a situation where democratic decisions of the majority can change the very nature and character of the democratic regime. In order to prevent this situation of eradication or upheaval of the democratic system of government, this theory described the democratic regime as subject to an absolute system of values, which is not subject to rescission or change and is not dependent on the will of the public, whatever its size. This is the basis of the doctrine of a “fighting and defensive democracy”.
The modern theory of democracy may also be characterized by the fact that the system of absolute values underlying it is founded on the existence of the citizen as an equal between equals in society and one who possesses basic fundamental rights. It follows that this system of values does not fall outside the boundaries of the democratic system but within it – by means of the human beings who are members of it. Thus, for example, basic rights the validity of which is not dependent on the agreement of the public stem from the person being a human being, a social person and one who possesses independent existence. This is what leads to the approach towards basic human rights as “natural” rights, that is to say, rights originating in natural law. In the democratic regime which regards man as the goal and society as consisting of individuals who hold the powers of government, the basic rights of the individual and of the minority lie at the heart of the democratic ideal. It follows, that the perception of democracy (substantive, in contrast to formal) is inherent in man and his humanity, in the system of values which he represents, in his natural traits such as his sense of justice, and his basic rights such as freedom and equality. In this sense, the system of values of the democratic regime does not fall outside the system of values of the citizens.58 According to this view, the individual, like the public as a whole, in not entitled to waive his basic rights – just as the individual is not entitled to sell himself as a slave, so too the public is not entitled to waive its freedom. An autonomous decision of the moment – the moment of waiving the basic principle of a democratic regime – cannot supersede the autonomy of permanence, which is maintained and preserved by means of the democratic regime and is negated in a totalitarian regime.
Moreover, a democratic regime which is implemented in a particular society includes this system of values, as it is expressed in the social contract. From this point of view, the system of values is dependent on the will of the public as a whole and not the will of the majority of the public only, and accordingly its modification or abolition require the consent of the entire public.
The democratic regime is characterized by the principle of agency and the principle of loyalty which is derived from it, as the basis for the relationship between governmental entities and the citizens. The citizens are the sovereign, and the representatives of the public and the public office holders in state institutions are their trustees. They are elected or appointed in order to serve the public, that is to say, to act for the public’s benefit only. In this context, Justice H. Cohn stated as follows:
“The individual domain is not the same as the public domain, the former does as it wills, it gives or refuses at will, whereas the latter is created solely to serve the public, failing which, it is nothing: everything it holds, has been placed in its hands as trustee; it itself possess no rights or obligations which exceed these, or which are different and separate from them, because they arise from this trusteeship, or have been vested in it or imposed upon it by virtue of statutory provision.59
This is why it is essential for government entities to make an account to the public, and why governmental actions must be transparent. The democratic regime is differentiated from every other type of regime (for example, a dictatorship) because it is a form of transparent politics: the political power and the acts of the governmental institutions must be open to the citizen. Opening political power and making the use of it transparent underlie the legitimacy of the democratic government, which is not entitled to act arbitrarily but only as trustee of the public, acting at its behest and for its benefit. Likewise, by the very nature of democratic government as transparent politics it is subject to the scrutiny of the citizens, as the eye which sees political power and its usage, places it in fetters. Visible power is limited and scrutinized power, and those who hold it are not free to use it arbitrarily. Without the act of continuous review citizens would be precluded from having an educated impact on the course of government and the figures leading it. Both the functioning and the legitimacy of the democratic regime stem, therefore, from the existence of a power scrutinizing the government. The expression of criticism, protest and opposition to the activities of the government form part of the essential elements of the democratic regime.
Offences against the regime harm the substance, structure and functioning of the regime as such. Protection of the political framework has a dual purpose: protection of the very existence of the system of government, i.e., preventing revolutionary activity by entities seeking to eradicate the system of government in the state (the democratic nature of the political regime) – and protection of the governmental institutions of the state in order to allow them to perform their functions properly.60
Offences against the regime are intended to protect the democratic regime in so far as the regime itself is deemed to be entitled to or worthy of protection by means of the criminal law. On the one hand, one may not allow the advantages offered by democracy, in terms of rights and freedoms, to be exploited in such a way as to undermine the pillars of the democratic regime and destroy it.61 On the other hand, of course, democracy cannot be protected in ways which might cause harm to the essence of democracy itself, namely, the democratic way of life. In contrast to dictatorships, democracy does not sanction every means taken to achieve a worthy purpose, and it is characterized by the cautious and measured choice of the means which it adopts. It follows that the choice of the means to be used to protect the democratic regime must also be compatible with the democratic nature of the regime. The primary difficulty remains the characterization of the boundaries between behaviour which democratic principles should tolerate, behaviour which should be condemned and fought against by means of the political, educational and cultural system, and behaviour which should be prohibited by criminal law on the grounds of the need to protect the democracy.
Which are the forms of behaviour which can and should be defined as criminal offences against the regime?
One of the most serious and dangerous phenomena facing the democratic regime and its institutions, and indirectly also society, is the performance of acts which harm or endanger the organizational and functional structure of the democratic regime with the aim of overthrowing the regime or its institutions. Next, we shall consider acts which clearly fall within this category.
Revolution means harm to the structure of the regime, in our context – the democratic regime, by means of its abolition or destruction by violence, starting with negating its ability to act and ending with it being replaced by another regime.
This phenomenon also includes preventing institutions of the regime from performing their constitutional functions; for example, preventing the parliament or the government from performing their respective functions, such as assembling and decision making (this could come about by imprisoning members of parliament or ministers). However, the issue here is preventing the performance of a governmental action, as distinct from influencing or deflecting the governmental action. Causing harm to a democratic governmental institution is only regarded as harmful to the structure of the regime if it is continuous and significant. A one-time injury – such as obstructing the entrance to the parliament building in order to prevent a certain law from being enacted or decision being made – will not be deemed to harm the structure of the regime but will be defined as harm to a democratic governmental institution. In such a case, the relevant offence will be use of force against government officials and not harm to the structure of the regime.62
The democratic regime is an essential social value, and therefore its protection by means of the criminal law is justified and even critical. The critical nature of this protection stems both from the huge scope and nature of the expected infringements of basic rights as a result of the harm to the democratic regime – varied, harsh and persistent infringements – and the difficulty (and sometimes impossibility) of restoring the democratic regime.63 Clearly, until the restoration of the democratic regime, if this is possible (whether by civil revolution as occurred in Greece, or by the death of the undemocratic ruler as occurred in Franco’s Spain, or by the voluntary retirement of the undemocratic ruler as occurred in Chile), very serious damage may occur to society, including great injury and loss of human lives.64 Revolution is a dangerous phenomenon which is prohibited by all systems of law.65 Revolution draws its dangerous character and criminality from two cumulative factors: the purpose of the conspiracy (harm to the democratic regime) and the building of an organization for that purpose.
The second component which accords the revolution its particular gravity is the association of a group of people in order to achieve the stated purpose of harming the regime. In relation to the offence of revolution, it is difficult to imagine a situation in which an individual can act to change the structure of the regime by unlawful means in such a way as to endanger the regime – overthrowing it or preventing it from operating. In practical terms, it seems unrealistic to assert that an individual can engage in revolutionary behaviour which harms the structure of the regime. The origin of the approach whereby the act of an individual can be regarded as forming the offence of harming the structure of the regime lies in the perception of the regime as belonging to a single all-powerful ruler, who is identified with the regime itself. In such a case, physical harm to the ruler, which in practice can be carried out by a single person, comprises an offence against the regime. At the same time, in a democratic regime there is no identity between the regime and the physical person who officiates in a governmental capacity, and therefore causing harm to a person holding a democratic-governmental position will not necessarily comprise an offence against the structure of the regime. An attempt to harm the structure of the regime can be realistic, practical and dangerous if it entails the association of a number of people gathering for this purpose. When a number of people take violent action or threaten the use of force which is directed against the democratic regime by attacking its institutions, these acts fall within the framework of revolution aimed at changing the political regime.
As noted, the criminal prohibition on a revolutionary act prohibits causing harm to the structure of the democratic regime by overthrowing it or destroying it through violent means. It is possible to define a successful revolution as a completed criminal offence and therefore an attempt to commit it is prohibited by the penal law. It is noteworthy that according to the modern view inpenal law, the penalty for an attempt is identical, at least from a normative point of view, to the penalty imposed for a completed offence. In our opinion, this is not a proper definition of the offence of revolution. The case of revolution requires and demands a different approach.
A successful revolution entails the destruction of the existing political regime and elevation of the (revolutionary) offenders to government. These same men are not placed on trial, and their revolutionary act is the basis of their rule. Naturally, the revolutionaries will explain their acts as essential and justified, as a civil revolution intended to protect the state and the citizens, as indeed occurred in Greece,67 so that it is not practicable to bring charges against the new rulers.68 Lord Harrington’s remarks in this regard are pertinent:“Treason doth never prosper; what’s the reason? Why, if it prospers, one dare call it treason”.69
Criminal proceedings only become possible70 should the previous regime be restored.71 Practical logic dictates that one should not rely on the likelihood of this happening. Accordingly, both from the point of view of sending a message of deterrence and from the point of view of enforcement policy, it is justifiable to characterize the prohibition of revolution as including attempted revolution and not only as a completed revolution. The effectiveness of the prohibition lies primarily in the prevention of attempted acts.
It follows, therefore, that the behavioral element of the prohibition of revolution includes the prohibition of the completed act and of the attempt. The danger that is posed by a successful revolutionary act and an attempted revolution which gives rise to a concrete danger is clear, and criminalizing such acts is therefore justified. Moreover, the democratic regime is an essential social value of the highest order. Thus, it would be justifiable to be satisfied with a merely abstract danger to the existence of the regime as the basis for the offence rather than make the criminality of the act contingent upon the existence of a concrete or direct danger to the existence of the regime,72 provided that the acts which create the danger are themselves tainted by illegality (at least from the point of view of purpose). It might be too late to impose criminality if one waited until the regime was already in direct or concrete danger. The wait for the realization of the danger could prove fatalto the existence of the democratic regime. Accordingly, there is also a case for prohibiting acts which are preparatory to causing harm to the regime, as a justified exception in penal law.73
Generally, preparatory acts performed by an individual are not punishable74 – one reason is that the risk posed by such acts is distant; another more important reason is that an individual performing preparatory acts has not yet crossed the Rubicon from the point of view of the decision to commit the offence. Ultimately, this decision is tested by the commission of the act itself, and when a single individual is involved, it is more likely that he will refrain from actually executing the plan. The potential risk posed by a group of people associating in order to commit a criminal act (and in particular a grave criminal act) is more serious and dangerous than the potential risk posed by a single person, in particular because of the difficulty in withdrawing from a group, the members of which are mutually committed to the desired goal. Conspiring – or at least conspiring to commit a serious offence – is a prohibited criminal act. In addition, for the purpose of the offence of revolution, the need to prevent a regime of arbitrariness, repression and subjugation justifies the broad blanket of criminality.75 These considerations justify a distinction being drawn between completed and attempted acts of revolution, on the one hand, and the preparations taken to commit the revolution, on the other hand. When the preparation is not supported by an organization possessing a revolutionary aim it is highly likely that the act will be unsuccessful, and even regarded as eccentric. In order to fulfill the element of the offence, which carries with it a severe penalty, it is also necessary to show proof of real organization and present the preparatory acts in a realistic light.
Thus, alongside the prohibition of a completed act of revolution and attempted revolution there is also room for prohibiting acts which are preparatory to a revolution.
Criminalizing acts preparatory to causing harm to the regime is justified by the significance of the offence and the importance of protecting the regime. This is because, as mentioned above, harm to the existence and functioning of the regime entails significant, continuous and even fatal damage to fundamental human rights, including the right to life and the integrity of an individual’s person. It follows that there is a clear justification for criminalizing acts preparatory to revolution, as can be seen in the equivalent crimes in comparative law.76
In order to clearly distinguish the offence of conspiracy, in relation to an act of preparation, from penalizing thought only, it is necessary to prove the element of the offence, namely, that a plan was formulated to commit revolutionary and rebellious acts against the regime.77 There is a similar requirement in German78 as well as Swiss79 criminal law. Under these laws, the plan need not relate in detail to all means and goals, however, it must set out the guidelines of the operation and the time and place of its execution. Acts of preparation which are not based on the revolutionary plan of action may fall within the definition of unlawful organization to harm the regime, which is a more distant act of preparation for harming the regime, and will be discussed below.80
Exeption [Tätige Reue] – Withdrawing from the offending action
As noted, attempt and preparation to harm the regime are defined as complete offences. Accordingly, the doctrine of remorse [Rücktritt] as a general exception to criminal liability in European and Israeli law – relevant only to cases of attempt – does not apply.81 However, there is no logic to the non-application of the doctrine of remorse to the completed offence, when we are considering acts of attempt which are defined, in substantive terms in the law, as a complete offence. The definition of attempt as a complete offence need not hamper the application of the doctrine of remorse to acts of attempt, because in both cases the same rationale applies to the element of remorse.82 In particular, it is worth emphasizing the importance of the rationale whereby it is advisable to encourage those who intended to engage in offending behavior to retract. This is particularly important in the context of the offence of revolution. Moreover, if the doctrine of remorse applies to acts of attempt, which create a concrete or direct danger to a protected social value, then a fortiori it must apply to acts of preparation, which create a solely abstract danger.83 Likewise, if case law applies the exception of remorse to the offence of conspiracy84 then there is certainly justification for the exception of remorse in the situation under discussion here.
Accordingly, it is necessary to establish a special arrangement in the specific part of the penal code, on the basis of the possibilities of neutralizing the risk posed to the protected social value. Therefore, it is suggested to establish for the above mentioned offences the possibility of discharging the perpetrator from criminal liability if he contributed to preventing the commission of the offence, preventing its completion or frustrating its purpose. It should be emphasized that while the perpetrator will be discharged from criminal liability in respect of the offence of revolution, he will not be discharged from criminal liability in respect of any other completed offence which he has committed. For the same reasons it is suggested that the court be allowed to exercise discretion to lessen the punishment of the perpetrator of an offence, if he has contributed to significantly reducing the risk posed to the democratic regime or its institutions.85
In this issue, the tension between the desirability of providing incentives to withdraw from criminal conduct and the need to provide the police and security services with an operational space in which to prevent serious harms should be mentioned and emphasized. Withdrawal from criminal conduct does not negate the unlawful and anti-social character of the committed act, but comprises a different type of act which thwarts or eliminates the danger posed by that criminal act. In other words, as long as the perpetrator has not taken steps to thwart the risk posed by the actions previously performed by him, the phenomenon remains criminal and the police and security forces have the right and duty to intervene and prevent the realization of the danger inherent in the dangerous acts. In contrast, the moment the perpetrator performs additional later acts that block the danger posed by his actions, intervention by the police and security forces is not needed to prevent the realization of the danger – which does not yet exist; police intervention in such a case is possible for the purpose of examining the existence of the conditions for withdrawal from criminal conduct that give rise to a defense against criminal liability.
Another preliminary act which it would be justified to criminalize is participation in a revolutionary organization.
It is both necessary and justified to prohibit the establishment and leadership of and membership in a revolutionary organization, which aims through the use of violence or threat of the use of violence to abolish or change the system of the regime; to abolish or harm a governmental institution, or to unlawfully harm the proper constitutional functioning of governmental institutions with the aim of preventing them from or causing them to exercise their governmental powers. The democratic regime is indeed based on the political involvement of the citizens, including by means of organization, and even encourages it, and freedom of organization is indeed derived from the democratic ideal and serves the system of the democratic regime, however, an association which is intended to harm the democratic system of government, its structure or governmental institutions, by the use of violence or the threat of the use of violence, amounts to improper exploitation of the democratic system of government for the purpose of its destruction.86
The anti-social element entailed by this phenomenon stems both from the gravity of the goal of the conspiracy – prohibited harm to the democratic regime by means of force – and from the association of a number of people to achieve this aim. As noted, the criminal potential arising from the association of a number of people is greater than the criminal potential arising from a single person: the very fact of association for the purpose of causing prohibited harm to the democratic regime entails a risk of harm to an important social value, and therefore there is justification for prohibiting it.87
When the association entails a concrete plan to perform revolutionary activities, there is room to weigh the offence of revolution; however, even if the association is not accompanied by a concrete plan as aforesaid, there is justification for prohibiting it by reason of the abstract risk of harm which it poses to the protected social value (the democratic regime). The gravity of the purpose (destruction of the democratic regime by the prohibited means of the use of violence or threat of violence) as well as the gravity of the phenomenon of association and its special dangers justify punishment at the early stage when the abstract risk of harm to the regime first arises. The greater the importance of the protected value, the lower need be the risk of it actually occurring.
From a formal point of view, a prohibited association primarily includes a party which has been declared to be unlawful, its branches and derivatives, another association (which is a substitute for the party) the principal purpose of which is identical to the purpose of the unlawful party, and other unlawful organizations the objectives of which are to undermine the foundations of the regime and its institutions. One question which must be considered is the minimal number of conspirators needed to establish a “revolutionary organization”? The interpretation adopted by Austrian law, whereby the minimum number of people needed to form an organization is ten people,88 seems to us be too demanding. The arrangement proposed for the minimum requirement is, therefore, between three to five people.89
With regard to a party which fits the characteristics of an organization rebelling against the regime, it is necessary for a declaration to be made that it is an unlawful party which takes the form of a final decision of a court. As long as the decision is not final (for example, because an appeal has been brought against the decision), no action surrounding the party can form the basis of a criminal charge.90 The anti-social nature of the acts surrounding the unlawful party and its derivatives and branches stems from the fact that they safeguard the existence of the association which is dangerous to the democratic regime, and show blatant contempt for the lawful decisions regarding the dismantling of the party.91 At the same time, it is important to note that the democratic regime is the dominant protected social value, while respect for lawful decisions and compliance with them are in the nature of secondary social values only.92
When we are considering an organization which is a substitute for an unconstitutional party, a declaration that an organization is a substitute organization has a purely declarative function. In other words, the party which is a substitute for the unconstitutional party is unconstitutional by its very nature (ex tunc), and therefore there is justification for trying the people belonging to this association without an additional declaration that the party is a substitute. The view which holds that the declaration has a constitutive function, so that the substitute party and its activities are regarded as unlawful only upon a declaration being made, is illogical and even harms the democratic regime. Such a view will lead to the endless creation of parties to substitute for unlawful parties.
A party which is lawfully registered is a lawful party and its activities within the framework established by the law are permitted and do not attract any sanctions. Treating the party as unlawful by its nature (ex tunc) and the imposition of criminal liability for acts committed prior to the declaration of unlawfulness, to a certain extent amounts to retroactive punishment.94 In this context one may recall the judgment of the Constitutional Court in Germany which held that the unlawful acts of the party were only punishable after that party was declared to be unconstitutional by the court. This was because the need to properly protect the party was essential to the existence of the democratic regime.95
Within the framework of the prohibited acts relevant to an unlawful organization, one may find acts of leadership, preservation or strengthening of the organizational structure of the association, active membership in the unlawful organization, as well as other acts assisting the unlawful organization to operate. In this context, it is immaterial whether the prohibited aims are declared or concealed; it is sufficient that they can be attributed to the organization and that one can be prove the knowledge of the person working to fulfill them.96
Special importance may be attached to the leadership of an unlawful organization and the functions the leaders fulfill. The term “leadership” embraces people who hold senior posts in the organization such as the head of the organization, his deputy, second-in-command or their deputies, and the heads of branches and derivatives of the organization.97 The term “leadership” is substantive and not formal, and accordingly it also embraces people who are not formal members of the organization but have a special influence on it, such as the spiritual leader of the organization.98
The prohibition of the maintenance or strengthening of an unlawful organization refers to acts which tend to further the prohibited goals of the organization: maintenance or strengthening of the ties between the leadership and the members of the organization as well as the connections between the members inter se and between the branches of the organization, induction of new members, collection of membership fees, transfer of membership fees to the person responsible for the monies of the organization, and fulfilling a managerial function in the organization, all for the benefit of the organization and in order to implement its aims.99
It should be noted that strengthening ties between the members of the organization for purposes other than those of the organization, for example, in order to further a social goal which is not prohibited – does not fall within the boundaries of the prohibited phenomenon under discussion here, as these acts do not endanger the democratic regime as a protected social value. Moreover, membership of any organization creates reciprocal social relations between the members. The phenomenon of association per se – strengthening ties between people – is permitted, save if it furthers the prohibited aims of the unlawful organization.100
Active membership in an unlawful organization is an anti-social phenomenon and ought to be prohibited. The anti-social element in it stems from the fact that it helps to maintain the unlawful organization which endangers the regime and enables it to operate. Like the term “leadership”, the term “membership” is substantive and not formal; therefore, it is essential that the membership be accompanied by active and effective action on behalf of the organization. Passive membership, which is expressed by the agreement to join the organization, ought not to fall within the scope of the offence because the risk posed by such membership is negligible.101 Likewise, it may be that the act of joining the unlawful organization or refraining from leaving it, stems from the fear of the reaction of others, momentary weakness or the desire to be approved by others or impress others;102 refraining from leaving may also be the outcome of forgetfulness to leave or failure to attribute importance and significance to the membership.
Active membership involves participation in conferences, demonstrations, marches of the organization, collecting membership fees, distribution of the organization’s propaganda materials, printing material for the organization, ordering material for the organization and making payments for it.103 In this context it is irrelevant whether the dissemination of the material is itself a prohibited act or not; it is sufficient that the member works actively for the organization.104
This phenomenon includes acts which do not fall within the definition of leadership of an unlawful organization or membership in it, but nonetheless assist the organization or its purposes in some active way. The anti-social element of this phenomenon stems from the fact that it indirectly helps to maintain the continued existence and activities of the unlawful association, and the rationale for its criminalization is therefore obvious.105
3. Causing harm to the freedom of decision and freedom of action of governmental institutions by the use of violence or threat of violence
Use of force and the threat of the use of force are phenomena which are unlawful per se, but when the use of force and the threat of the use of force are exercised against government officials whilst acting in their official capacity, the wrongfulness is twofold, as it also harms the functioning of the institutions of government.
Use of force and the threat of the use of force against government officials, such as members of parliament, with the aim of causing them to exercise their powers (in general or in a particular way) or refrain from exercising them, impairs the freedom of decision and freedom of action of the government officials, who are supposed to act in accordance with their conscience and discretion using their best judgment within the framework of their powers. In a regime which is a representative democracy, such harm also amounts to a distortion of the will of the electorate.106 Certain systems of law distinguish between the use of force or threats against government institutions as an organ (for example, imprisoning all the members of government with the object of forcing them to make or reject a particular decision) on the one hand and the use of force or threats against members of a government institution on the other hand. Thus, German107 and Austrian108 criminal law distinguish between influencing the freedom of action of a constitutional organ by force or threats (as a more severe offence) and the exercise of force or threats against the members of that same organ (as a lesser offence).
The question which must first be examined in this context is whether a special prohibition should be assigned to the phenomenon of the exercise of force against a government official as an individual in a government institution, or whether this phenomenon can be handled by means of the offence of extortion in the penal law.
In our opinion, extortion of government officials while engaged in their official business is an offence against the regime. It is more serious than ordinary extortion but on the other hand should also be defined more narrowly than ordinary extortion.
The phenomenon of ‘ordinary’ extortion relates to harm to the freedom of decision making and freedom of action of the individual. The direct social harm which it causes is generally confined to the victim of the extortion. In contrast, extortion of government officials while they are fulfilling their government business harms the proper functioning of the institutions of the democratic government by virtue of the very intervention in the exercise of the officials’ discretion and the introduction of extraneous considerations. It forces a conflict of interest upon decision makers making them incapable of acting properly. The decisions which the government officials make relate to the public as a whole or at least to a sizeable part of it, and therefore the prohibited influence on the officials’ decision-making may cause serious harm to public life, when the injured parties may be the whole or a section of the public. This is therefore a special offence which protects an interest which is different from that of ‘ordinary’ extortion.
The comparison between the prohibitions leads to an additional conclusion: the offence of extortion is intended to protect the freedom of decision making and freedom of action of every person, including in particular weak and vulnerable people who require special protection.109 It is justifiable and even essential to prohibit threats which are not necessarily grave in themselves, for example, a threat to a person’s honour or privacy. It is appropriate to assume110 that government officials are not “weak people”. Our expectation of government officials is that they will stand firm in the face of threats which are not particularly severe and will not be influenced by them. As an example, take a threat made against the speaker of the parliament that unless he exercises his powers in a particular way, an embarrassing personal affair will be exposed. The speaker of the parliament is expected to stand firm in the face of such a threat even if implementing the threat might harm his honour and reputation.111 The privacy and honour of government official are protected less than those of private individuals, and therefore a threat to harm them does not possess a sufficiently anti-social element to justify discrimination in favour of the official, particularly if the threat is made within the framework of a struggle for a political position (from the point of view of the person making the threat).112 Accordingly, and as may be seen from a comparative law analysis,113 the definition of extortion of a government official as an offence against the regime ought to be narrower than ‘ordinary’ extortion – the threat under consideration must be sufficiently serious to be capable of bending the will of the government official, and this quality only exists when the threat is one of the use of force. We must conclude that extortion of a government official in the process of fulfilling his duties is deleterious to the regime, and as such merits a special prohibition which is more serious but also narrower than ordinary extortion.
The prohibited means, according to the proposed offence, is use of force or threat of the use of force. The ‘use of force’ includes physical harm to a government official or those close to him; harm might be injury to life, serious physical harm or harm to the freedom of the official or his relatives. Threat of harm to another person, per se, does not fall within the framework of a threat which cannot be withstood. However, serious threats such as threatening to spread a plague, pollute the drinking water of the state or of a particular town or to set fire to a plant which is essential to the state may lead a responsible government official to capitulate, precisely because of the duty of loyalty which he owes to the public.114
The prohibition can embrace not only verbal threats but also acts, i.e., coercion leading to extortion, such as blocking primary roads and paralyzing traffic. Such an act can be seen as extortion when it involves a serious and intensive act of coercion with which it is difficult to cope and which has the potential of influencing decision-makers to act otherwise than exclusively in accordance with their conscience and their discretion. This is, inter alia because it creates a significant risk of violence between the persons exercising the coercion and the citizens who are directly harmed by the coercion and between the persons exercising the coercion and law enforcement agents. It should be noted that in these cases the protection given by the prohibition does not relate to the value of public security and public order but to the value of the proper functioning of the government.
An example of this concept may be found in the Israeli case of Feiglin of the ‘Zo Artzenu’ movement.115 The leading members of this movement had organized a mass blockage of key highways in the state with the aim of frustrating the execution of government decisions and forcing the government to change its policy in relation to the Oslo-Peace Accords. The court considering the matter, held that the defendants had not conceived of the activities which they had organized as the outcome of the demonstration, but as a value in its own right, and that they had intended to undermine the ability of the government to act. The organizers’ public calls had led to thousands of demonstrators taking to the streets throughout the country. Consequently, Feiglin was convicted, inter alia, of the offence of sedition. The court explained in that case, that the acts of the accused had posed a real risk (as opposed to a distant and non-concrete possibility) of the realization of the goal which the accused had set for themselves, namely, to compel the government to change its policy by interfering with regular life in the country while rejecting the legitimacy of the government.116
One may ask whether an unlawful strike can amount to harm to the freedom of decision making and freedom of action of a government official.
It may be argued that a strike may lead to paralysis of public life, for example, when a strike is instituted by workers of the Water Company or the Electric Corp. Strikes of this type may prima facie give rise to the offence. In Germany117 and in Israel118 it has been held that certain cases, unlawful strikes can amount to an offence against the regime (sedition).
In our opinion, even strikes which are serious and unlawful cannot satisfy the behavioral element of the offence. Strikes which do not entail the element of the use of force do not fall within the scope of ‘serious means’ which cannot be withstood by government officials. The state has legal measures available to it, such as injunctions, for ending strikes which cause severe interference to public life. There is therefore a clear distinction between the use of force and threat of the use of force, which have a potential for violence (such as blocking roads, as described above) on the one hand, and strikes which do not contain the element of violence or potential for violence, on the other hand. The absence of the element of violence is the reason for the expectation that responsible government officials will withstand these pressures.119 The difference between a lawful strike and an unlawful strike is too fine to form the basis for a grave offence against the regime. It may undermine public confidence in the criminal law.
Even measures such as physical obstruction of the road leading to the office of a government official, loud shouting and interference with his work, do not fall within the framework of the use of force which can lead the government official to capitulate, and therefore they do not amount to real harm to the freedom of decision making and freedom of action of the government official.120 In these cases and in the cases of threats which do not entail the use of force, it would be inapplicable to apply the concept of offences against the regime.121
As noted, the protected interest relates to coercion of public officials in the exercise of their public powers. Accordingly, the use of force or threat of the use of force towards a lawmaker, demanding that he vote for or against a certain law, harms the powers of the legislature. The use of force or threat of the use of force towards a minister or ministers in the government with the aim of bringing about an appointment or preventing the appointment of a commission of inquiry, compromises the freedom of decision making of the government as a governmental institution.122
Is there justification for and a need to criminalize utterances which repudiate the democratic system of government, deny its legitimacy and call for its rejection?
A distinction should be drawn between criticism of the prevailing democratic regime, which is in the nature of protection of the democratic regime and nurturing it, on one hand, and denial of it as a type of regime, on the other. Clearly, one should not regard utterances which criticize the prevailing democratic regime from a manifestly democratic perspective – for example, that it is insufficiently democratic, that it is insufficiently loyal to principles of equality, or that it is unfair to minorities – as repudiation of that regime. The democratic system has weaknesses, and pointing to them does not amount to total repudiation of them. The democratic regime is based on active participation of the entire population, and is in the nature of a social arrangement which is supposed to take into consideration the will of all the citizens, i.e., a system of government which establishes a balanced and appropriate arrangement between the will of the majority and the will of the minority. By the very nature of the democratic process, democratic decisions create minorities who lose, i.e., whose demands or preferences are not satisfied.
Here, one should point out the weaknesses of the democratic system of government and the tensions prevailing between the full right to participate and exert political influence held by all citizens and the decision making mechanism, where in the absence of the ability to reach complete consensus, reliance must be placed on the will of the majority. According to the logic of the democratic system, even if it is not possible to reach broad or complete consensus a decision is required which is based on the desires of the majority. From the practical point of view there may be cases in which the collective institutional decisions are tilted – whether by virtue of the decisions of an unrestrained majority or by virtue of the manipulations of parties possessing narrow interests and the ability to sway and control, whose practical power is greater than their share in the population. The necessary outcome in a democratic system of government, which is based on majority decision, is that in the absence of overall agreement, the minority does not succeed in realizing its will, and the situation of a permanent minority is particularly difficult and problematic. Furthermore, from a political point of view it is easy for a regime which is based on a majority to ignore the voice of the minority, in particular when the minority does not threaten to turn into a majority in subsequent elections, and that there is always the risk that the majority – as a principle of democratic decision-making – will act as a cover for the actions of the national group, which forms the majority, against the freedoms of the opposing national group, which forms the minority. Such a regime becomes a dictatorship of the majority and disenfranchises and represses the minority.
In flawed social situations, sections of the public may fail on a permanent basis in terms of the fulfillment of interests which are critical to them by reason of the inability to reach a majority in collective institutions. In other cases, the majority may even feel that notwithstanding its numerical supremacy, it cannot protect and further the interests which it regards as important. Such a situation may occur, for example, when great power is concentrated in the hands of a group which is pivotal politically. In practice, it is possible to identify two significant potential defects in the democratic decision-making process: in the first, the system does not accord adequate weight to significant interests of the minority, and in the second, the system accords excessive weight to the interests of the minority at the expense of the interests of the majority. In both cases, individuals belonging to the collective – prima facie possessing rights which are equal to those held by the rest of the population – are left outside the circle of beneficiaries of the advantages which the democratic system of government is supposed to grant to all the individuals who are partners in the social covenant. Those groups feel deprived and disadvantaged by the prevailing democratic concept and therefore may repudiate the prevailing democratic system of government.
These groups are entitled to demand changes to certain aspects of the regime in order to ensure the right to genuinely participate. This is because the freedom of the majority in the decision-making process is not unlimited, and the democratic regime grants rights to the minority which the majority cannot abrogate. When the rights of the minority are negated, it is natural for the latter to no longer accept the prevailing system. In these circumstances, repudiation of the prevailing democratic system of government is in fact a true democratic act, as it does not amount to repudiation of the substance of the democratic regime. The democratic regime does not exist merely for the sake of being, because a `fighting democracy’ is a democracy which fights for the realization of the liberal values underlying it.123 The democratic regime exists for the benefit of all the citizens, i.e., all the groups in society and it requires active participation of all the citizens in shaping political and public life. Accordingly, the democracy enables groups which are often disadvantaged and discriminated against to repudiate the prevailing system of government. As noted, the repudiation of the prevailing regime in these circumstances is a democratic act, the purpose of which is to establish a substantively democratic regime, in which the basic values and principles – including the rights of the minorities – are properly safeguarded.
Allowing these groups to voice their protest – which includes repudiation of the prevailing democratic system of government – may lessen the rage and frustration of the groups which feel deprived. Preventing protests against the regime and against the prevailing system of government creates the risk that a group which consistently finds itself in a minority, and knows that it can never turn into the majority, will regard the democratic process itself as isolating and not collaborative. This is particularly true if the decisions in which this group consistently loses relate to the practical manner of allocating resources and to the fundamental values of the political and social discourse and in the light of the condescending and separatist attitude of the majority. If these groups are not given due and fair opportunity to express their view of the prevailing democratic system of government, there will be increased fear of harm to social stability and in extreme cases even of harm by violent means to the pillars of the prevailing democratic regime. This is because consistent discrimination may lead the deprived group to conclude that violence is the sole means of realizing its rights or gaining attention to its plight.
Moreover, the expression of an opinion – including a repudiatory opinion – by groups which feel discriminated against may lead to public debate and handling of the problem in a proper manner and at the right time. “Repudiation” of the legitimacy of the prevailing democratic system of government does not amount to denial of the essence of the democratic system; this “repudiation” is a manifestly democratic act, as it is designed to bring about a true democratic regime which respects and upholds the basic principles and values of the democracy. There is therefore no justification for prohibiting publications which express this repudiation.
The next question is, therefore, whether it is appropriate to criminalize utterances or publications containing full repudiations of the democratic system of government and denials of its legitimacy.
The constitutional democratic regime which is the subject of our discussion recognizes fundamental values such as basic human rights, which cannot be abrogated by the public, whatever its size: certain basic values are not contingent upon the will of the public and do not draw their strength and legitimacy from it. These values are inherent in man by virtue of his human existence.124 Thus, for example, freedom of expression – as a component and the essence of democracy – does not draw its strength from the consent of the public, and the boundaries of this element are not set on the basis of public consent.
It may be argued that appealing against fundamental democratic principles and denial of the legitimacy of the democratic regime are incompatible with the democratic ideal125 and may even harm it.126 It is also arguable that “realization” of freedom of expression and freedom of association for the purpose of appealing against them or against the legitimacy of the democratic regime in effect exploits the advantages of the democratic system of government for the purpose of destroying it.
This approach is reflected in the words of Goebbels that “this will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed”.127
Denial of the legitimacy of the democratic regime may bring about its collapse and the rise of a repressive and tyrannical form of government. The restraint shown by the state towards publications which repudiate the democratic regime may be interpreted by sections of the public as an expression of uncertainty about democracy as a regime and may be seen as a sign of weakness. Such an interpretation lessens public support for democracy and encourages the enemies of democracy.
Historical support for this argument may be found in the story of the Weimar Republic, which was democratic and was destroyed by the Nazis, inter alia, through the improper exploitation of the advantages offered by the democratic regime.128
The very serious danger inherent in the repudiation of the democratic regime lies in the fact that it can assist in the replacement of the democratic regime with another non-democratic regime, i.e., by a tyrannical regime. Such a regime does not enable its own modification by persuasive and peaceful means, and harms the fundamental rights of the citizens, including the right to life, to human dignity, freedom and equality. Such was the Nazi regime which brought about catastrophe to the world, to the Jewish people and to Germany itself, and which was only “replaced” following its defeat in the war; this was also the case in Greece in which a military revolution took place and a dictatorship took control, which repressed fundamental rights and led to the deaths of many. This regime was replaced following a civil revolt.
To summarize, repudiation of the democratic regime can encourage the replacement of the democratic regime by another form of government, one which does not act for the benefit of the entire public and violates the fundamental rights of its citizens.
Accordingly, if the democratic regime embodies the principle of ‘rule by the people, for the people’, and as such is the most appropriate regime, then it must be protected. Democracy need not enable its enemies to improperly exploit its advantages with the aim of bringing about its destruction.129 Recognition of this premise is what has given rise to the concept of a defensive and even a fighting democracy, one which is allowed to fight against activities that aim at its destruction.130 This is particularly true of a democracy which is vulnerable and fragile and lacks a deeply rooted social and cultural infrastructure supporting the democratic way of life and politics. This stance is reflected in measures which have been put in place in order to disqualify a party, list or candidate posing a danger to the democratic regime.
These arguments prima facie justify the prohibition of publications which repudiate democracy. However, this is not the end of our examination. Protection of the democratic regime requires that only appropriate measures be taken to protect the regime. Excessive restrictions cannot be imposed on the freedom of individuals and the criminal law should not be used except where necessary. Attention must be given to considerations of justice, efficiency, practical understanding and necessity. It is our opinion, therefore, that utterances that oppose the democratic system of government should not be defined as a criminal offence against the regime, if they do not contain an element of incitement to violence.
First, democracy is a system of government which is committed to the process of free and open public debate as a condition for the shaping and adoption of value-laden views and attitudes. Democracy is bound by and conditioned upon a commitment to free speech on political and ideological issues. By violating this commitment – democracy betrays itself.
Second, the strength of democracy lies in confrontation and competition between it and other concepts of government.131 Without a comparative discussion about the different systems of government, the democratic ideal may turn into dogma, which has no rationale or persuasive force.132 Without free discussion it is not possible to inculcate a deep and strong commitment to the democratic regime. Silencing opponents is both an expression of weakness and a message of weakness. It does not turn the opponents into supporters. Moreover, the silencing of anti-democratic views may even lead to a certain allure being attached to them, in the sense that something which is prohibited is more enticing. The more efficient way to protect democracy is through education and public debate.133
Third, minority groups or marginal elements on occasion take positions which negate the democratic concept as an expression of frustration and deep disappointment with the functioning of the prevailing democracy. Even if this approach is not a worthy one, it is important to permit it to be voiced in order to allow “pressures to be released”. If pressure is not released in communicative expression, it might be released through violent measures. The distinction between reservations regarding the prevailing democracy and repudiation of the essence of democracy is sometimes a difficult one to draw. A prohibition on utterances of the second type chills expressions of the first type. In this context it is worth noting that the Weimar Republic did not fall merely because of people who spoke out against the Republic, rather it fell because of acts of violence, including incitement to violence against the regime and its officials.134
It follows from the above that peaceful opposition to democracy should not be criminalized.
Democracy is a social value that deserves and demands legal protection. The protection of a democratic form of government derives from the protection granted to its citizens; it is designed to enable the state to perform its duty to protect their fundamental rights and interests. The individual can only maintain and exercise his fundamental rights within a properly working physical and political framework; therefore, a subversion of the political framework harms the state`s ability to act on behalf of its citizens.
The phenomena against the democratic regime are: revolutionary activity, including attempts and preparations for a revolution, as well as the establishment of an organization and participation as a leader or member in an organization whose aim is the use or the threat of the use of force to establish or change the system of government, to destroy or to harm a government institution, or to unlawfully harm the proper constitutional functioning of the institutions of a government.
One of the most serious and most dangerous phenomena confronting the democratic system of government – and indirectly the society as well – are activities that harm or endanger the organizational and functional structure of the democratic state with the aim of destroying it or its institutions. The most obvious of these is a revolution, that is, the exchange of a democratic state for another regime or, at least, the incitement to overthrow the government or to cripple its ability to function. This includes activities that prevent the state`s institutions from performing their constitutional duties; for example, actions designed to neutralize the Parliament or the Government by preventing it from assembling and reaching decisions, such as through the imprisonment of Parliament members or Ministers. The dangers and the criminal nature of a revolution derive from two cumulative factors: the severity of the objective – to harm the democratic state – and the element of association for this purpose.
The offence of revolution also includes attempts and preparations for a revolution. If a revolution is successful, then this means that the existing political regime has been eliminated and the offenders (the revolutionaries) have risen to power. The revolutionaries (yesterday offenders) do not stand trial; the revolution is the basis of their power and it is presented as an essential and justified act – a civilian revolution designed to protect the state and its citizens. Criminal proceedings will only be possible, if and when the previous regime returns to power. Therefore, both as a deterrent and as law enforcement policy, it is justified to include also the prohibition of revolution attempts in the definition of the offence. Furthermore, democracy is an essential social value and, therefore, an abstract danger to the existence of the state should suffice, and the criminality of the activities should not depend on a tangible or direct danger to the state`s existence, provide that the acts that endanger the state are illegal in their own right (at least from the perspective of the goal). It is, therefore, also justified to prohibit acts of preparation to harm the state as an anomaly in criminal law. In order to clearly differentiate the offence of conspiracy from punishment for thoughts alone, the formulation of a plan to commit revolutionary and subversive acts against the state should be required. The plan does not have to contain details regarding all its means and objectives. However, in order for it to be considered an attempt to harm the state, it must include its strategies and the designed time and place for their implementation. Therefore, the revolution attempt is punishable because it is a typical case of a criminal act, and acts of preparation are punishable in light of the importance of protecting this value and the need to take preventive measures. Nevertheless, it is proposed – due to the severe criminal nature of attempted revolution, as opposed to acts of preparation – to set the punishment for acts of preparation at half of the maximum sentence prescribed by law for revolution and attempted revolution.
Conspiracy to undermine the democratic political system by harming its structure and its governmental institutions – through the use or threat to use of force – is an abuse of the democratic system. Therefore, it is justified to prohibit the establishment of an organization and participation as a leader or member in an organization whose goal is the use or threat of the use of force to establish or change the system of government, to eliminate or to harm a government institution, and to unlawfully impede the proper constitutional functioning of state institutions. Political parties, their branches and offshoots, as well as any other organizations that have the aforesaid goals, which have been rendered unconstitutional for this reason, all fall within the bounds of unlawful association. An illegal political party is one that has been declared as such by a conclusive decision. The prohibited activities that are affiliated with unlawful association include leadership and active membership in the organization, the maintenance or reinforcement of its organizational structure, and other acts of assistance.
Active membership is intensive participation in activities to advance the purpose of the organization. Passive membership, which reflects the willingness to join the organization, should not fall within the bounds of this offence since the danger posed by such participation is negligible. Furthermore, a person may have joined an illegal organization (or failed to leave one) because of momentary weakness, a desire to please or impress others, or a fear of their reaction. The failure to leave the organization may also be the result of forgetfulness or the lack of importance ascribed to membership in it.
The use and threat of the use of force against a state institution (e.g. the Parliament, the Government or one of its members) with the objective of influencing its functioning or his or her performance, is a special and more serious – although more limited – from the regular phenomenon of extortion. Regular extortion violates the individual freedom of decision and action, and the danger is confined to the victim of extortion. In contrast, the extortion of state officials while acting in an official capacity could harm the entire public or, at least, a large sector of the public. Nevertheless, a state official, who is naturally in a position of power, is expected to withstand threats that are not very serious. Therefore, the prohibition of the threat to use force against a state institution or its officials should be more limited than that of the regular offence of extortion and should only include threats that are liable to influence the performance of the government officials. Some examples of threats of this nature are the threat to use force, which includes the threat of physical harm to the government official or to his or her close relatives; a serious threat to harm society or part of it (e.g. spreading an epidemic, polluting the drinking water, or burning down a factory that is crucial to the state); a threat to cause severe and intensive harm to public life, which would be difficult to cope with and, thus, has a potential to influence decision makers and prevent them from acting with a clear conscience and sound judgment (e.g. blocking major roads and paralyzing traffic in order to force the Parliament or the Government to act in a particular manner).
Nonviolent strike do not fall within the bounds of grave actions that state officials are unable to withstand. The state has lawful means to bring an end to strikes that seriously harm public life. Moreover, in certain cases, by dealing with illegal strikes as offences against the state, it is liable to create the impression that it is fighting workers, i.e. a hostile governmental view of workers – an outlook that is incompatible with a democratic regime.
Section 1. Definitions
(a) Government institution – the parliament, its committees and the government.
(b) Violence – use of force and threat of the use of force against a person.
(c) Unlawful means – violence and acts which are capable of harming infrastructure or essential public services.
(d) Revolutionary organization against the regime – association of five persons, one of its declared or concealed aims being:
(1) To overthrow the democratic regime, to replace it with another regime or to otherwise harm the democratic system of government, by unlawful means;
(2) To overthrow a governmental institution or impair its ability to function, including by preventing it from acting or forcing it to exercise its powers in a particular manner, using unlawful means;
(3) To use unlawful means against the members of a governmental institution with the purpose of preventing them or causing them to exercise their governmental powers.
Section 2. A revolutionary organization against the regime
(a) A person founding a revolutionary organization against the regime, fills a leadership position therein or performs an act aimed at maintaining or strengthening its organizational structure – shall be liable to imprisonment for five years. A person fills a leadership position if he holds a senior post in the organization, such as the person standing at the head of the organization, his deputy, second-in-command, heads of branches and also a person who does not perform an organizational function but has special influence over the members of the organization such as a spiritual leader.
(b) A person who fills active membership in a revolutionary organization against the regime – is liable to imprisonment for three years.
(c) A person who provides assistance to a revolutionary organization against the regime – or fundraises for the organization – shall be liable to imprisonment for three years.
Section 3. Violence against the regime committed with revolutionary purpose
(a) A person using or attempting to use unlawful means in order to further one of these purposes:
To overthrow the democratic regime, replace it with another regime or otherwise cause harm to the democratic system of government,
by unlawful means;
(2) To overthrow a governmental institution or harm its ability to function, including by preventing its operation or causing it to exercise
its powers in a certain way, by way of duress and by unlawful means;
shall be liable to imprisonment for twenty years.
(b) A member of an organization revolting against the regime who performs an act preparatory to the commission of an offence under
subsection (a) with the purpose of committing it – shall be liable to imprisonment for ten years.
Section 4. Extortion of democratic governmental institutions and their organs
(a) A person who uses unlawful means, which are capable of causing the President of the State, the parliament or its committees, or the
government, to exercise their governmental power in a particular way or refrain from exercising it, with the said purpose – shall be liable to
imprisonment for ten years.
(b) A person who uses unlawful means, which are capable of causing a member of one of bodies listed in subsection (a) above to exercise their
governmental power in a particular way or refrain from exercising it, with the said purpose – shall be liable to imprisonment for five years.
Section 6. Incitement to violence against the regime
(a) Any person who publishes inciting material with one of the following objectives:
(1) to overthrow the democratic regime, replace it with another regime or otherwise harm the democratic system of government, by unlawful means;
(2) to overthrow a governmental institution or impair its ability to function, including by preventing it from acting or causing it to exercise its powers in a particular way through duress, by unlawful means;
(3) to use unlawful means against members of a government institution with the object of preventing them or causing them to exercise their governmental powers
shall be liable to imprisonment for 5 years.
(b) In this section “incitement” – includes calls to implement the aforesaid objectives, publication of words of praise for their implementation and publication of words of encouragement, sympathy, support or identification, provided that they were performed with the purpose of implementing the aforesaid objectives.
* Faculty of Law, University of Haifa. LLB, LLM University of Cologne, Germany, LLD Hebrew University of Jerusalem.
** Faculty of Law, Hebrew University of Jerusalem, and Vice-President, Israel democracy Institute.
1 See also HW Laufhuette, Leipziger Kommentar zum StGB – Grosskommentar, 11 Aufl., 4. Lieferung (Berlin 1992) vor §80 para 21; Law Reform Commission of Canada, Working Paper 45, Crimes against the State (Ottawa 1986) 43; A Barak, “The Function of the Supreme Court in a Democratic Society”, in R Cohen-Elmagor (edn), Basic Issues in Israeli Democracy (Tel Aviv 1999) 129, 132 (IN HEBREW).
2 On the dilemmas of democracy, see GP Boventer, Grenzen politischer Freiheit im demokratischen Staat (Berlin 1985) 14–18, 31–82
3 See Stephen, A History of The Criminal Law of England, Vol. II. (London 1883) 298ff; JWC Turner, Kenny’s Outlines of Criminal Law (19th edn, Cambridge 1966) 410f; Law Reform Commission (n 1 above) 6.
4 The relevant definition is:
“Whereas divers opinions have been before this time what case treason shall be said, and in what not; the King, at the request of the lords and the commons, hath made a declaration in the manner as hereafter followeth, that is to say; When a man doth compass or imagine the death of our Lord the King, or of our Lady his Queen or of their eldest son and heir; or if a man do violate the King’s companion, or the King’s eldest daughter unmarried, or the wife of the King’s eldest son and heir; or if a man do levy war against our Lord the King in his realm, or be adherent to the King’s enemies in his realm, or elsewhere, and thereof be proveably attainted of open deed by the people of their conditional: And if a man counterfeit the King’s great or privy seal, or his money; and if a man bring false money into his realm, counterfeit to the money of England as the money called Lushburgh, or other, like to the said money of England, knowing the money to be false, to merchandise or make payment in deceit of our said Lord the King and of his people; and if a man slay the chancellor, treasurer or the King’s justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places, doing their offices: And it is to be understood, that in the cases above rehearsed, that ought to be judged treason which extends to our Lord the King, and his royal majesty: And of such treason the forfeiture of the escheats pertaineth to our sovereign Lord, as well of the lands and tenements holden of other, as of himself”.
See Law Reform Commission (n 1 above) 5; United Kingdom Law Commission No. 72, 7, 64; Pollock & Maitland, The History of English Law before the Time of Edward I, vol II (2d edn, Cambridge 1968) 502ff; Kenny`s Outlines of Criminal Law (n 3 above) 395ff; Archbold, Criminal Pleading, Evidence and Practice 2003 (London 2003) 2018ff.
5 See Law Reform Commission (n 1 above) 6; Stephen (n 3 above) 300ff.
6 The Unlawful Oaths Act 1797 prohibited any association (conspiracy) one of the aims of which was revolt against the regime or disruption of internal order.
7 Thus, for example, before the French Revolution there were approximately two convictions per year for the offense of sedition, whereas between 1789 and 1810 there were 103 convictions, and occasionally 33 convictions per year; see M Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime 1770–1820”, (1990) 10 Oxford Journal of Legal Studies307, 309. The position taken by English law inspired the German Reich law of 1871; see FC Schroeder, Der Schutz von Staat und Verfassung im Strafrecht (Munich 1970) 236.
8 See the decision of the court in R v Tutchin (1704), stated that “no government could survive if people were not called to account for making people think ill of it, and that all people should have a good opinion of government”; this citation appears in Lobban (n 7 above)314.
9 Stephen (n 3 above)348.
10 See Lobban (n 7 above)307ff.
11 R v Burnes 16 Cox C.C. 355 (1886).
12 By Stephen (n 3 above)299.
13 Stephen’s formulation is currently applied. See Law Commission 72 (n 4 above) 42; 11(1) Halsbury’s Laws of England (4th edn, London 1990) paras 89–90; P Murphy (ed), Blackstone’s Criminal Practice (London 2001) 740.
14 See Archbold (n 4 above)2136.
15 Thus, for example, Mahatma Gandhi was convicted of sedition after protesting against and expressing dissatisfaction with the regime.
16 See JE Boasberg, ‘Seditious Libel v. Incitement to mutiny: Britain Teaches Hand and Holmes a Lesson’ (1990) 10 Oxford Journal of Legal Studies 106, 108, who states that “Certainly, the fourth and fifth [features] seem extremely broad and arbitrary.”
17 R v Aldred 22 Cox CC 1 (1909).
18 ibid 3.
19 ibid 3.
20 R v Chief of Metropolitan Stipendiary Magistrate, ex parte Choudhury  1 All ER 306(CA).
21 Examination of Trials for Sedition in Scotland (1888) 8.
22 ex parte Choudhury (n 20 above) 322–323.
23 On the Canadian Boucher Case, see text below at n 31–33.
24 ibid 323.
25 See Law Commission 72 (n 4 above) 46–48; E Barendt, Freedom of Speech (Oxford 1985) 152, 159–160.
26 Section 136 of the Penal Code.
27 See FCrH 6696/96 State of Israel v Kahana, 54(5) PD 145; M Kremnitzer and K Ghanayim, Incitement not Sedition (Israel Democracy Institute 2002) 11; M Kremnizer and L Levanon-Morag, “Limiting Freedom of Speech for the Prevention of Violence”, (2004) 7 Law and Government 305, 306.
28 CrApp 6696/96 Kahana v State of Israel, 52(1) PD 535, 584. Similar criticism may be found in FCrH 1789/98 State of Israel v Kahana, 54(5) PD 154, 158: “the offence of sedition […] is an anachronistic remnant from the time of the British Mandate in Palestine.” See also Kremnitzer and Ghanayim, ibid, 11.
29 CrApp 294/89 Aliyya v Attorney General, 43(4) PD 627, 629.
30 CrApp 1448/91 Anabtawi v State of Israel, Tak-El 1991, vol 91(3) 2396.
31 Boucher v the King  SCR 265.
32 See n 23 above.
33 See Law Reform Commission (n 1 above) 32, 41–45;; AW Mewett and M Manning, On Criminal Law (3rd edn, Toronto 1994) 604–605.
34 See Law Reform Commission (n 1 above) 49.
35 See Review of Commonwealth Criminal Law, Fifth Interim Report, June 1991, Part V: Offences Relating to the Security and Defence of the Commonwealth, para 32.10; LW Maher, “Use and Abuse of Sedition” (1992) 14 Sydney L Rev 287.
36 Burns v Ransley (1949) 79 CLR 101; regarding this case see also Maher, ibid, 287.
37 See R v Sharkey (1949) 79 CLR 121; regarding this case see also Maher, ibid, 301–302.
38 See Maher (n 35 above) 295–311.
39 See Maher (n 35 above) 291.
40 Dennis v US 341 US 494 (1951).
41 Gitlow v New York 268 US 652 (1925).
42 Dennis v US 341 US 494, 539–540 (1951); it is worth noting that Justice Frankfurter was very supportive of the judicial-self-restraint doctrine; see West Virginia Board of Education v Barnette 319 US 624, 650 (1943).
43 Ibid, 499–500.
44 Yates v US 354 US 298 (1957).
45 Scales v US 367 US 203, 222–224 (1961).
46 Brandenburg v Ohio, 395 US 444, 447 (1969); see also Hess v Indiana 414 US 105; NAACP v California Hardware Inc. 458 US 886 (1982).
47 See Archbold (n 4 above)2136.
48 Section 60.
49 Section 48.
50 Sections 137, 138.
51 In the nineteenth century and first half of the twentieth century, German law too employed offences against the regime, primarily against student associations, professors, and liberal, communist and social-democratic parliamentarians. See AS Liourdi, Herkunft und Zweck der Strafbestimmungen zum Ehrenschutz des Staatsoberhaupts unter Beruecksichtigung des deutschen und griechischen Rechts (Goettingen 1990) 47. For the Law Against Social Democracy, see Schroeder (n 7 above) 101.
52 This is one of the important concepts developed by Locke and Rousseau, on social contract.
53 See also P Glotz, ‚Am Widerstand scheiden sich die Geister‘ in Glotz (ed), Ziviler Ungehorsam und Rechtsstaat (Frankfurt 1983) 8; HJ Schwagerl, Verfassungsschutz in der Bundesrepublik Deutschland (Heidelberg 1985) 5ff; CrApp 6696/96 Kahane v State of Israel, 52(1) PD 552.
54 See J Habermas, „Ziviler Ungehorsam –Testfall für den demokratischen Rechtsstaat. Wider den autoritaeren Legalismus in der Bundesrepublik“ in Glotz (ed), Ziviler Ungehorsam im Rechtsstaat (Frankfurt 1983) 29, 37f.
55 See Law Reform Commission (n 1 above) 42; see also Y Tamir, Liberal Nationalism (Princeton 1993) 35ff.
56 See Section 1A of the Israeli Basic Law: Human Dignity and Liberty, under which: “The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a … democratic state.”
57 See R. Dworkin, A Matter of Principle (Cambridge 1985) 198; J Raz, Ethics in the Public Domain (Oxford 1994) 97.
58 See also HP Schneider, “Gesetzgeber in eigener Sache – Zur Problematik parlamentarischer Selbstbetroffenheit im demokratischen Parteistaat”, in Grimm and Maihpfer (eds), Gesetzgebungstheorie und Rechtspolitik, 13. Jahrbuch fuer Rechtssoziologie und Rechtstheorie (Opladen 1988) 327, 334.
59 HCJ 142/70 Shapira v District Committee of Chamber of Advocates, Jerusalem, 25(1) PD 325, 331.
60 See also Laufhuette (n 1 above)(n 1 above) vor §80 para 21; see also EA 84/2 Neiman v Chairman of the Central Election Committee, 39(2) PD 225, 310, 314; FH 9/77 Electric Corp of Israel v Ha’aretz Press Ltd, 32(3) PD 337.
61 See J Rawls, A Theory of Justice (Cambridge 1971) 214; Schwagerl (n 53 above) 9; BVerfGE 25, 88, 100; BVerfGE 28, 36, 48f.
62 See N Livos, Grundlagen der Strafbarkeit wegen Hochverrats (Pfaffenweiler 1984) 235.
63 To these, one must add, of course, the dangers which non-democratic regimes pose to world peace.
64 See also Boventer (n 2 above) 241.
65 As in German law, Swiss law, Austrian law, Greek law, English law, Australian law, Canadian law and US law.
66 See also Laufhuette (n 1 above)(n 1 above) §83 para 9; G Stratenwerth, Schweizerisches Strafrecht, Besonderer Teil (5th edn, Bern 2000), 237; Livos (n 62 above) 315; BGHSt 7, 6, 8.
67 See D Spinellis, “Probleme des Hochverrats im Lichte der Erfahrungen aus der juengen griechischen Geschichte und Rechtsprechung”, ZStW 94 (1982), 1080, 1085; Livos (n 62 above) 177.
68 See, for example, the revolution which took place in Greece in 1967, when, after the civil revolt and the return of the democratic regime in 1976, the rebels were tried for offences against the pre-revolutionary regime; the dictator had not changed the law in relation to offences against the regime; the offences remained in place and continued to be valid even after the civil revolt. See SE Kareklas and C Papacharalambous, Strafrecht in Reaktion auf Systemunrecht: Griechenland (Freiburg 2001) 65.
69 Quotation from BL Ingraham, Political Crime in Europe: A Comparative Study of France, Germany and England (Berkley 1979) 26. Shakespeare also expressed this view, when he stated: “Treason never prospers; if it prospers, we dare call it treason”. See also Livos (n 62 above) 163, 172.
70 And not as occurred in Chile.
71 For the distinction between (permitted and positive) civil rebellion and (prohibited) revolution, see Livos (n 62 above) 171–192 in relation to Greece.
72 See also Schroeder (n 7 above) 308; Dennis v US 341 US 509f; E/A 2/84 Neiman v. Central Elections Committee of the Eleventh Knesset, 39(2) PD 225, 311, 314; see also A Bendor, “The Right of Parties to Participate in Elections to the Knesset”, (1988) 18 Mishpatim 269, 280–287 (IN HEBREW); in contrast, see Justice Cohn in Yardur v Chairman of the Central Elections Committee of the Sixth Knesset, 13(3) PD 367, 381. See also SZ Feller, Elements of Criminal Law, Part 2 (Jerusalem 1987) paras 67–70 (IN HEBREW).
73 See also U Beck, Unrechtsbegründung und Vorfeldkriminalisierung (Berlin 1992).
74 Except in cases where the state has a very strong justification, such as the phenomenon of terrorism, treason and others.
75 The position whereby harm to the regime amounts to harm to the basic rights of all the citizens and therefore is very grave, finds expression in German criminal law, which defines harm to the regime in the first part of the specific section of the criminal law; see Beck (n 73 above) 91; Entwurf eines Strafgesetzbuches (StGB) E 1960 mit Begründung (Bonn 1960) 508; see also Law Reform Commission (n 1 above) 1.
76 See Sections 81, 83 of the German Penal Code, Sections 165, 275 of the Swiss Penal Code, Section 242 of the Austrian Penal Code, Section 134 of the Greek Penal Code, Section 46 of the Canadian Criminal Code and Section 28 of the Proposal in Law Reform Commission (n 1 above); Section 2384 of the Federal Criminal Code and Gitlow v New York U.S. 652 (1925); Dennis v US 341 US 494 (1951); Yates v US 354 U.S. 298 (1957).
77 See M Mischka, Hochverrat und Staatsgefährdung in der Rechtsprechung des Bundesgerichtshofs (Bonn 1962) 99ff on German law; and also E Simeonidou-Kastanidou, “Der strafrechtliche Schutz der Demokratie”, in Bemmann & Manoledakis (eds), Der strafrechtliche Schutz des Staates (Neuwied 1987) 16 on Greek law. It is clear that if the conspiracy is not expressed solely by agreement but also by the creation of a continuing framework for the performance of the revolutionary activity, the risk becomes greater and more serious.
78 Section 83; see BGHSt 7, 11; Schroeder (n 7 above) 300.
79 Section 165; see Stratenwerth (n 66 above) 201.
80 See text below accompanying n86ff.
81 See also W Stree and D Sternberg-Lieben, Schoenke/Schroder, Strafgesetzbuch Kommentar (26th edn, Munich 2001) §83a para 1; Laufhuette (n 1 above)(n 1 above) §83a para 1.
82 See also Stree and Sternberg-Lieben, ibid, §83a para 2; Laufhuette (n 1 above)(n 1 above) §83a para 1.
83 See also Stree and Sternberg-Lieben, ibid, §83a para 11.
84 See also CrA 290/88 Gerar v State of Israel 43(4) PD 696, 701ff, and here it is irrelevant if the conspiracy is an independent offence as required by the Anglo-American approach or is an act of preparation to commit an offence with a co-perpetrator, i.e., it is a derivative offence and the first stage of performance as required by the European-Continental approach.
85 An arrangement in this spirit exists in Section 83a of the German Penal Code, Sections 243 and 245 of the Austrian Penal Code, and Section 137 of the Greek Penal Code.
86 See also E/A 2/84 Neiman v Central Elections Committee of the Eleventh Knesset 39(2) PD 225, 290–291; G. Willms, “Zur strafrechtlichen Absicherung von Organisationsverboten”, in FS Lackner (Berlin 1987) 471.
87 See Beck (n 73 above) 204ff.
88 See O Leukauf and H Steininger, Kommentar zum Strafgesetzbuch (2nd edn, Prugg 1979) §246 para 5; E Foregger in Wiener Kommentar, 6. Lieferung (Wien 1999) §246 para 5.
89 As we are concerned with policy considerations, choosing a different number would be equally acceptable.
90 See also Stree and Sternberg-Lieben (n 81 above) vor§ 80ff para 5ff; Laufhuette (n 1 above) vor §80 paras 25ff; Entwurf eines Strafgesetzbuches (StGB) E 1960 (n 75 above) 509; E/A 84/2 Neiman v Central Elections Committee of the Eleventh Knesset 39(2) PD 225, 270.
91 See also Stree and Sternberg-Lieben (n 81 above) §84 para 2; Willms (n 86 above) 471ff.
92 See also Laufhuette (n 1 above) §84 para 1; Schroeder (n 7 above) 314, 469.
93 See R Maurach, C Schroeder, and M Maiwald, Strafrecht Besonderer Teil, Teilband 2 (8th edn, Heidelberg 1999) 328.
94 See Maurach et al, ibid 328.
95 See BVerfGE 12, 296ff.
96 See also C/A 1282/93 Registrar of Associations v Kahane et al, 47(4) PD 100, 106.
97 See also BGHSt 19, 110ff; BGHSt 20, 74f; BGH NJW 1965, 161; BGHSt 18, 296ff; Stree and Sternberg-Lieben (n 81 above) §84 para 10.
98 See also Maurach et al (n 93 above) 329; BGHSt 6, 129, 130; BGHSt 7, 279; BGHSt 19, 109ff; Stree and Sternberg-Lieben (n 81 above) §84 paras 11ff; Laufhuette (n 1 above) §84 para 7.
99 See BGHSt 20, 45, 53; BGHSt 20, 287ff; BGHSt 16, 298ff; Stree and Sternberg-Lieben (n 81 above)(n 81 above)§ 84 para 12; Laufhuette(n 1 above)§ 84 para 6.
100 See also BGHSt 20, 287, 289; Stree and Sternberg-Lieben(n 81 above)§ 84 para 12.
101 See also Stratenwerth (n 66 above) 236; for American law, see US v Robel, 389 US 258, 266, 282.
102 See also Maurach et al (n 93 above) 329; Stree and Sternberg-Lieben (n 81 above) § 84 para 15; Laufhuette (n 1 above)§ 84 para 9; BGH NJW 1960, 1772, 1773; US v Robel, 389 US 258, 266, 282.
103 See also Maurach et al (n 93 above) 329; H Krauth, W Kurfess, and H Wulf, “Zur Reform des Staatsschutz-Strafrechts durch das Achte Strafrechtsaenderungsgesetz”, JZ 1968, 577, 580; BGHSt 26, p. 258; Stree and Sternberg-Lieben (n 81 above) §84 para 15.
104 See also BGHSt 26, 258f; Maurach et al (n 93 above) 329; Stree and Sternberg-Lieben (n 81 above) § 84 para 16.
105 See also BGHSt 23, 64, 70; Stree and Sternberg-Lieben (n 81 above) §86 para 2. This is also a challenge to the decisions of the regime which prohibit any action by the organization, and therefore, harm to governmental authority, i.e., the democratic regime in which the governmental decisions are solely within the competence of the government institutions.
106 See also Maurach et al(n 93 above) 360.
107 Sections 106, 106 of the German Penal Code.
108 Sections 250, 251 of the Austrian Penal Code.
109 See also A Brenner, ” Political Pressures as Extortion'” (2000) 8 Plilim 299, 307–308 (IN HEBREW).
110 This is a dual presumption: empirical and normative.
111 See Entwurf eines Strafgesetzbuches (StGB) E 1960 (n 75 above) 543; BGHSt 32, 170, 172–173; Maurach et al(n 93 above) 323, 361. For a different position, see Brenner (n 109 above) 331, 334.
112 See also Entwurf eines Strafgesetzbuches (StGB) E 1960 (n 75 above) 543; Brenner, supra note 109, 311.
113 See also the official proposal for reform of the German criminal law of 1960- Entwurf eines Strafgesetzbuches (StGB) E 1960 (n 75 above); and regarding Canadian law, see Law Reform Commission (n 1 above) 49.
114 See also Maurach et al (n 93 above) 361; BGHSt 32, 165, 172.
115 See CrF 3996/95 State of Israel v Feiglin et al, judgment of the Magistrate’s Court of Jerusalem, given on 2 November 1997 (unpublished).
116 It should be noted that the defendant’s acts were designed to coerce the government to change its policy rather than to influence public opinion.
117 See BGHSt 6, 336, 340; BGHSt 8, 102; Maurach et al(n 93 above) 323; Stree and Sternberg-Lieben(n 81 above) §81 para 4.
118 CrApp 294/98 Aliyya v Attorney General, 43(4) PD 627, 629 (in Hebrew).
119 For the view that mass strikes do not fall within the framework of the use of force which is capable of leading to the capitulation of a government official, see Stratenwerth, supra note 66, 201.
120 See also Maurach et al(n 93 above) 323, 362; BGHSt 32, 165, 172.
121 In these cases, the offence of ‘regular’ extortion which is intended to protect the freedom of decision and freedom of action of every person is inapplicable; the protected interests are different; there is no nexus between the offence of ‘regular’ extortion and the government official, when the latter functions within the framework of his government position.See also BGHSt 32, 165, 176; G Arzt, “Anmerkung zu BGH-Urteil”, JZ 1984, 428, 429; Maurach et al(n 93 above) 362.
122 See also Schroeder (n 7 above) 204.
123 See A Marmur, “On the Boundaries of Democracy: Political Science following the Murder of Rabin”, (1996) 1 Israel Year Book 29 (IN HEBREW); also C Leggewie and H Meier, Republikschutz (Hamburg 1995) 155.
124 See text above accompanying notes 55–58.
125 See also A Vitkon, “Queries and Some Youthful Recollections on Freedom of the Press”, in Gavison (ed), Civil Rights in Israel: Collation of Articles in Honour of Haim H. Cohn (Jerusalem 1982) 153, 161 (IN HEBREW); Simeonidou-Kastanidou (n 77 above) 11, 14ff; J Frowein, “How to save Democracy from itself?” (1996) 26 Israel Yearbook on Human Rights 201; U Backes, Schutz des Staates (Opladen 1998) 40–41.
126 See the approach taken by Justice Matza (dissenting opinion in CrApp Kahana); FCrH 1789 State of Israel v Kahana 54(5) PD 166 (in Hebrew).
127 Quotation from I Canu, Der Schutz der Demokratie in Deutschland und Frankreich (Opladen 1997) 190.
128 See also O Backes, Rechtsstaatsgefaehrdungsdelikte und Grundgesetz (Cologne 1970) 15f; EA 1/65 in Yardur v Chairman of the Central Elections Committee of the Sixth Knesset, 13(3) PD 367, 387–388, 389; Vitkon (n 125 above) 165.
129 See R Langer-Stein, Legitimation und Interpretation der strafrectlichen Verbote krimineller und terroristischer Vereinigungen (Munich 1987) 95–97.
130 For defensive democracy, see K Loewenstein, “Militant Democracy and Fundamental Rights” (1997) 31 American Political Science Review 417–432, 638–658; Schwagerl (n 53 above) 9ff; S Baer, “Violence, Dilemmas of Democracy and Law”, in Kretzmer and Hazan (eds), Freedom of Speech and Incitement against Democracy (The Hague 2000) 63, 81ff; Rawls, (n 61 above) 214; BVerfGE 25, 88, 100; BVerfGE 28, 36, 48f; M Kutscha, Verfassung und “streitbare Demokratie” (Cologne 1979) 26ff; EA 1/65 in Yardur v Chairman of the Central Elections Committee of the Sixth Knesset 13(3) PD 365, 390; FCrH 1789/98 State of Israel v Kahana 54(5) PD 166; EA 84/2 Neiman v Chairman of the Central Election Committee of the Eleventh Knesset 39(2) PD 225, 242, 313; and also Boventer (n 2 above) on defensive democracy according to American, German, French, Italian, Austrian, British, Swiss, Greek, Spanish, and Portuguese law.
131 See also HCJ 73/53 Kol H’am v Minister of the Interior 7 PD 877; Abrams et al v US 40 S Ct Rep 17, 22 (1919). In this context, the comments of the Supreme Court are apposite: “Generally, there is a good chance that the truth will ultimately triumph, and therefore if there is just sufficient time, it is best to act – to cancel the influence of the false information which was published in the newspaper […] by means of examination, education and counter explanation. ‘If there is time to discover the lie and mistakes by means of discussion, and prevent the tort by means of educational processes, then the remedy which must be sought is actually talk and not silence which is enforced”. HCJ 73/53 Kol H’am v Minister of the Interior, 7 PD 891.
132 See JS Mill, On Freedom (1859).
133 See also the statement of Justice Agranat: “Frequently the very act of repression – the very stopping of the appearance of the newspaper in which the improper statements were published – vests these with a value which is exaggerated in the eyes of the public. In places where enemies of freedom encounter denial of freedom, many people who possess good will may think that notwithstanding this, there is something behind the dictatorship which is prohibited. Failing doctrines are only helped by oppression. They die with the disclosure of their conceptual basis”. HCJ 73/53 Kol H’am v. Minister of the Interior, ibid.
134 See Kutscha (n 130 above).
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