“The notions of the rule of law, European values, democracy, human rights and equality, so often invoked in European discourse, actually lack a precise (and therefore potentially authoritative) definition. As such, they can be twisted and stretched to any length and tweaked in any manner in the name of fundamental human rights – and they are.”
Perhaps it is not an exaggeration to assert that, in terms of social policy, the most vital issues to face us over the coming decades will be focused on the role of nation states and issues of human equality. Summing up the experience of the last decade it seems tempting to identify three questions in this regard. The first is the problem of political correctness and its ancilla, human rights fundamentalism. The second is the curtailment of sovereignty, often euphemistically termed “outsourcing” (political) decision-making. The third phenomenon is that of juristocracy, essentially meaning the undue influence of the legal profession on politics and the rise to power of its representatives, which finds its fullest expression in the enactment of a global constitutional framework over national constitutions.1
POLITICAL CORRECTNESS AS A SYSTEM OF IDEAS
Rooted in postmodernist progressivism, political correctness (PC) is more than just some kind of coded language as a political tool: it means a complete system of ideas in and of its own. This ideological framework and its attendant idiom operate with a number of clearly identifiable catchwords and key terms. Examples include relativisation, the wholesale rendering of any distinction between Good and Evil relative; neutrality, which equals the urge to fetishise freedom from bias; obsessive tolerance and egalitarianism; and heavy emphasis on sensitivity (and, along with it, the drive to sensitise others). These buzzwords, unsurprisingly sprung from the notion of “open society” as envisioned by Karl Popper, have exerted a profound influence on Western civilisation, leading to the regrettable status quo today in which we no longer can, indeed often no longer are permitted to, speak about absolute values, at least in respect of the so-called traditional, perhaps bygone, social canon, because all cultures and systems of social relations are assumed to be relative to one each other. We have this process to credit for the guilt and shame Europe and the West have for some time felt about their own historical past, repudiating their fundamental traditions and, ultimately, disowning their very selves as a consequence.
Furthermore, the “civic” belief in historical progress denies the existence of transcendental values that could be deemed absolute, except for the single virtue of neutrality, which permeates (or ought to permeate) the entire universe. Of course, the neutrality criterion is really untenable, as it itself constitutes nothing except one of the core liberal values. (Theoretically, the liberal state cannot endorse any affirmation of value, including any specific programme aiming for some kind of Public Good.) In reality, such an expectation of neutrality is impossible to fulfil, given that the sheer requirement already contravenes the conditions of neutrality stipulated by itself.2 The principle of neutrality is the cornerstone of the liberal mindset, and as such cannot be neutral to begin with. The PC creed holds that all “values”, in essence anything radically distinct from other things, including all social systems and networks of cultural relations, must be measured by the same standard. Naturally implied in this doctrine is the prohibition of making a distinction between Good and Evil, no matter how plain the difference may be. In this view, distinction by its very nature equals discrimination, and as such will inevitably offend some people or groups of people in their sensitivities. To quote András Lánczi’s vivid formulation, in this approach “what the truth is does not matter; peace is always preferable to it”.3 What ultimately follows from all this is the call to tolerate the widest possible variety of phenomena in society, including all stripes of deviance, effectively allowing normality to be superseded, or at least matched in rank, by abnormality. In this way, tolerance amounts to the weakness of moral conviction, as concluded by the Hungarian-American philosopher John Kekes.4
Needless to say, all of this has legal repercussions, which we can collectively define as human rights fundamentalism. Make no mistake: I am obviously not suggesting that anyone should deny the innate rights of man vested in everyone by birthright. What I am talking about is that human rights fundamentalism has for long overstepped the limits of common sense, seeking to promote the most diverse human desires, needs and wishes to the status of rights. At first, these must “only” be respected and recognised, but soon enough they have to be guaranteed, then finally rendered enforceable by the state, against others and even against itself. A case in point is the drive to win legal recognition for third (or umpteenth) genders. What this mindset accomplishes, then, is nothing short of “constitutionalising” all social problems by seeking to expand the system of protecting constitutional rights to cover virtually all spheres of law and life.5
Let us look at a few examples. First off the bat is the confusion of freedom of religion with the right to found a church. Human rights fundamentalists argue that, once we have recognised the need for the state to remain neutral in matters of religion, what follows is not only the duty of the state to guarantee the freedom of religion but also the prohibition of discrimination among religious communities in terms of eligibility for officially granted church status.
If we obey this logic, we will recognise an asylum granted by the first safe harbour country entered by the applicant as grounds for global social care. In the interpretation prevalent today, this means that whoever wants to leave his country of birth should be free at any time to move to any other country at will. It is the same logic that transforms the equality of men and women into a gender revolution, in which the two sexes created by God (“male and female created he them”, GEN 1:27) are superseded by any number of genders to suit various needs, from the asexual gender-fluid to the transsexual or the nonbinary. Advocates of political correctness proscribe any discrimination between one desire and the next, arguing that all people should be free to choose a gender to their liking – an option to which they maintain children must be sensitised to from a very early age onwards. As a result, the self-determination of women is turned into the unrestricted right to abortion, as advocated, for example, by the American pro-choice lobby.
By the same token, the right to information becomes a right that is enforceable over and above any other consideration, possibly permitting public access to and dissemination of state secrets and data pertaining to national security. Finally, the formerly fetishised freedom of speech gives way to the dictatorship of opinion, simply because the assumed precedence of sensitivity on the part of real or fabricated minority groups entails the need to confine free speech to very narrow limits, lest anyone be offended by anything someone else has to say.
The most dangerous aspect of human rights fundamentalism lies in the power of its secular ideological framework to deprive human rights of their transcendental, literally God-given nature, dressing up the satisfaction of mundane desires as a legal mandate, no matter how absurd they may be.
The movement on the whole is based on the idea of the “open society”, proposed by the Austrian–British liberal thinker Karl Popper.6 Central to Popper’s view is the repudiation of any hierarchical social arrangement, particularly that of the nation state, along with the argument that humanity is heading towards its next stage of evolution, to be marked by the power of total equality and reason. Should this end prove not within easy reach, it will be necessary to proactively step on the desirable path of progress toward the Global Village, aided by tools of “social engineering”.
One suggested tool is to recalibrate legal definitions artificially in order to transform existing natural social relations, whether involving traditional gender identities or the sense of belonging to a nation. I can almost hear Carl Schmitt counter, echoing Proudhon: “Whoever invokes humanity wants to cheat.”7
Concurrently and in close correlation with the gaining ground of the approach outlined above, the world is now witnessing an equally momentous process marked by the drive of supranational institutions to confiscate discretionary powers from sovereign national entities of perfect legitimacy, such as governments and parliaments, and to reallocate them to “European” or “international” levels of competence. This process embodies the latest type of “outsourcing”, this time applied to politics.
In this regard, one could talk about a number of cases by field: about the IMF and the World Bank in economics; about the UN and its various specialised bodies, such as its Committee on Migration, in social policy; the European Council, the Venice Commission or the European Court of Human Rights in legal affairs; or indeed any EU agency that often acts duplicitously in the name of human rights. What invariably happens is that, failing open and direct methods, a variety of “soft” legal tools are brought to bear (along the lines of surveys, country reports, legal interpretations and recommendations) in order to first establish “precedents”. Once this foundation in a quotable database is in place, the next step is to hold individual states accountable for these recommendations as if they were compulsory norms. Unfortunately, the states often fall for such tricks of “juristocrafying” politics.
It is in order to distinguish between two methods of curbing sovereign national discretionary powers. On the one hand, we have certain global bodies attempting to influence decision-making on the national level by wielding “soft” or “smart” tools of power, naturally citing political correctness, the norms of human rights fundamentalism, and the expectations of the “open society”. A very good case in point is the reinterpretation of asylum law or the perversion of the Geneva Convention. The latter does not even hint at a scenario of granting, for instance, a migrant from Bangladesh from thousands of miles away, access to the bare minimum of an asylum process in Hungary, for example. The original text of the Convention clearly states that the asylum-seeker fleeing from prosecution, or from the well-founded fear thereof, only enjoys such rights in the first safe country closest to his country of birth upon arrival, and then only on a temporary basis and with a view to his earliest possible return to his native country to rebuild it.
Through its labours of textual exegesis, the UN, the International Court of Human Rights and even the European Court of Human Rights have endowed this 1951 document with an interpretation that not only “goes without saying” in the eyes of many nowadays, but makes everyone “outraged” by the decision of any country to erect a fence to protect itself against aliens from across its national borders.
The other technique practiced by certain supranational or transnational bodies is the appropriation of discretionary rights, in veiled or blatant form. A popular misconception holds that, by acceding to the European Union, the member states waived some or all of their sovereignty, subjecting themselves to a contract that enables them to be disciplined by the Union on grounds of having breached contractual obligations. None of this holds water today, nor has ever been true. Echoing the former Constitution, Article E) paragraph (2) of Hungary’s effective Fundamental Law declares: “With a view to participating in the European Union as a Member State and on the basis of an international treaty, Hungary may, to the extent necessary to exercise the rights and fulfil the obligations deriving from the Founding Treaties, exercise some of its competences arising from the Fundamental Law jointly with other Member States, through the institutions of the European Union”.8 This clearly shows that Hungary, in joining the European Union in 2004, never relinquished its sovereignty, or even a slice thereof, to the EU. In fact, this would be a legal absurdity, because the EU is not a state. It is a non- state without a homogeneous population, and therefore without any independent sovereignty of its own. It is easy to see how problematic it would be to confer state sovereignty upon a non-sovereign construct. We can only talk about the assignment of certain powers arising from sovereignty, and then subject to the fundamental requirement for the Union to respect the constitutional identities of nation states within its fold.9
In spite of these grounding tenets, we have been seeing several EU bodies expanding their powers by giving an extensive interpretation to certain principles difficult to grasp and thus amenable to be construed in diverse ways, such as the rule of law, democracy, human rights and so and so forth, thus seeking to subject an increasing number of special fields in politics to the competence of the EU. This has been the case with the partially relinquished national control over migration affairs, and even with nation-level taxation policy, where the principle of “prohibited support by the state” is just as often cited as a “fundamental value” to justify a drive to overrule national provisions pertaining to the administration of justice. In essence, some Union-wide bodies – undeniably vested with certain assigned powers and competencies – often interfere with the affairs of nation states or call them to task over political matters disguised as legal issues which those nation states never ceded to the European Union upon becoming members thereof. At the end of the day, what one must talk about is the undermining of the constitutional identity of nation/member states – what we may term the “furtive outsourcing of sovereignty” – by and to the benefit of supranational or global organisations, international courts and federal bodies. The legal ammunition and grounds for this feat are supplied by human rights fundamentalism under the banner of the “rule of law” and “European values”.
JURISTOCRACY AND GLOBAL CONSTITUTIONALISM
I have been anticipating a very justified question: How do all these processes correlate? What is the common denominator of human rights fundamentalism, the “juristocrafication” of politics and global constitutionalism? The short answer is that all these developments are typically backed, or at least “surrounded”, by jurists or judicial bodies, as has been repeatedly pointed out by Béla Pokol and András Zs. Varga.10 Indeed, the human rights fundamentalist mindset and the tendency to outsource discretionary powers converge on several points, for instance when we see various academic and scientific bodies, university departments, advocacy groups, NGOs and even courts (suffice to mention the formerly activist Constitutional Court led by László Sólyom or the federal courts in Strasbourg and Luxemburg) attempting to fashion a sort of global constitutional framework that will overrule national constitutions, thus challenging no less than the normative grounds of sovereignty. Forever busy citing and cross-referencing one another as sources, these entities attribute meanings to various “neutral” or “European” standards that merely serve to justify their own efforts as the authors of these purportedly “neutral” interpretations. First they set out the interpretive framework in professional journals, country reports and legislative commentary, at this point claiming no more than to be “valuable sources” rather than some sort of imperative. Subsequently, these interpretations begin to be quoted by various agencies in their resolutions, and ultimately adopted by legislative bodies as accepted legal practice.
A classic example is the case of Bangladesh migrants contra Hungary in Strasbourg.11 Before the Court of Human Rights, the “prosecution” was represented by the Hungarian Helsinki Committee on behalf of the migrants from Bangladesh. At the same time, the Court admitted as expert evidence the country reports “informed” by the Helsinki Committee itself! In short, the suit involved, on the one hand, an NGO speaking for the mandate of “open society”, and on the other hand, the same entity admitted as expert legal witness to the same process. Under the circumstances, it is hardly surprising that, in the first instance, the federal Court presiding over human rights sustained the complaint of the migrants from Bangladesh based on the findings of the aforementioned report. Moreover, it did so by citing international principles of procedure. This amounted to flagrantly disregarding the fact that filing for asylum in Hungary should clearly have been out of the question for these migrants, who hailed from Bangladesh, a country separated by thousands of miles from Hungary, which they could not possibly have regarded as the “first safe” country on their way.
This is just one example to show how legal interpretation and practice can cast a veil of global constitutionalism over real cases, which will then be used to haul over the coals national-level decision-makers who “fail” to meet international or European standards inspired by human rights fundamentalism. The notions of the rule of law, European values, democracy, human rights and equality, so often invoked in European discourse, actually lack a precise (and therefore potentially authoritative) definition. As such, they can be twisted and stretched to any length and tweaked in any manner in the name of fundamental human rights – and they are.
AN ANTI-DEMOCRATIC LIBERALISM?
At the risk of saying nothing new, I want to propose that, in terms of the history of political philosophy, the inception of human rights fundamentalism must be traced to around the dawn of the Enlightenment, when liberal-progressive ideas first began to sprout. The original ambition of this movement based on notions of popular sovereignty was to liberate the masses. More precisely, by rallying under the battle cries of mass liberation and democracy, it aimed to banish morals and transcendence from among the supreme values validating a state, and to appoint the decisions of the masses as the sole acceptable repository of legitimate constitutional order.
Since then, we have found out that the people, a notion formerly often invoked in mediatised democracies, is nothing but an assembly of individuals possessing human rights, who do not always share the lofty, progressive principles to which decision-makers would wish them to subscribe. This is exactly why the “new priesthood” works so hard to establish the aforementioned “global constitutional law” as a source of “surrogate legitimacy” which, in the name of political correctness, invariably prioritises the interests of minorities to the detriment of the majority. It is a product of human rights fundamentalism, and the favourite staple of sovereignty-eaters. To what end? Well, now that morals and immaterial sources anchored in transcendence have been removed from the constitutional equation (taking with them points of reference to aid the discernment between Good and Bad), while “the people remain incapable of fulfilling its mission” or, God forbid, “not yet ready to receive democracy”, it is nice to have handy an appropriately abstract arsenal of international or European standards to fall back on. This corpus can then be cited any time a nation state happens to adopt “inappropriate” measures – no matter how democratic the process of legislation.
This mentality preaches neutrality under the aegis of protecting human rights, but in reality it legitimises the dogmatic values of liberalism. Instead of settling for human rights fundamentalism and the satisfaction of desires that fuels it, perhaps we had better take our cue from the Hungarian dramatist Imre Madách, who wrote in The Tragedy of Man – and not without any Biblical justification – that “… life consists of struggle, / The struggle in itself must be the goal”.12
Translation by Péter Balikó Lengyel
(The article is the English translation of an edited version of the essay published in the journal Kommentár, Vol. 2018, No. 3–4.)
1 Cf. the so-called “juristocracy debate” on the pages of Jogelméleti Szemle, 2015/4, and Béla Pokol: A jurisztokratikus állam [The Juristocratic State], Budapest: Dialóg Campus, 2017, among other works.
2 Cf. Ferenc Horkay Hörcher: “A Nemzeti Hitvallásról” [On the National Credo]. In: Alkotmányozás Magyarországon és máshol [Constitutionalising in Hungary and Elsewhere]. (Eds. András Jakab and András Körösényi), Budapest: Új Mandátum, 2012, p. 295.
3 András Lánczi: “Lehet-e az igazság ellenében egy demokratikus rendet alapítani?” [Is it possible to establish democratic order against the truth?], Magyar Nemzet, 31 July 2004.
4 John Kekes: Az egalitarizmus ellen [Against Egalitarianism], Gödöllő: Attraktor, 2004, p. 186.
5 Cf. Bertrand Mathieu: A jog a demokrácia ellen? [Le droit contre la démocratie?], with a foreword by László Trócsányi, translated by Miklós Kisari. Budapest: Századvég, 2018.
6 [Hungarian edition of The Open Society and Its Enemies:] Karl Popper: A nyitott társadalom és ellenségei , translated by Péter Szári, Budapest: Balassi, 2001.
7 [Hungarian edition of The Concept of the Political:] Carl Schmitt: A politikai fogalma , edited and translated by Lajos Cs. Kiss, Budapest: Osiris–Pallas Stúdió–Attraktor, 2002, p. 37.
8 The Fundamental Law of Hungary, Article E), Paragraph (2). Subsequent to the address on which this article is based, the National Assembly adopted a seventh amendment, supplementing this paragraph (2) by the following sentence: “Exercise of competences under this paragraph shall comply with the fundamental rights and freedoms provided for in the Fundamental Law and shall not limit the inalienable right of Hungary to determine its territorial unity, population, form of government and state structure.”
9 “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.” The Lisbon Treaty, Article 4 (2).
10 András Zs. Varga: Eszményből bálvány? – A joguralom dogmatikája. [From Ideals to Idols? – The Dogmatism of the Rule of Law]. Budapest: Századvég, 2015.
11 Ilias and Ahmed vs Hungary (No. 47287/15).
12 English translation by George Szirtes.