A Dangerous Understanding of Human Rights

On December 7 last year, President Vladimir Putin addressed the members of the Council of the Russian Federation for Civil Society and Human Rights by video link. In his introduction, he first thanked the council members for their perfectly clear civic position on the special military operation and their support for the “right reasons and the need” for that operation. He then complained that something was seriously wrong with the understanding of human rights in today’s world. This is how he put his thoughts into words: “The existing approaches require comprehensive analysis, since they are used to achieve completely different goals, far from constructive ones. Thus we see that human rights doctrines are being used to destroy the sovereignty of states and to justify the political, financial, economic and ideological dominance of the West.”

In his indignation at the danger of human rights, which restrict states in exercising their sovereign power and are abused as a means of ideological domination over honest citizens, Putin is by no means alone in the world. This view of the protection of human rights and political freedoms is also shared by many politicians in the West, who warn of the danger of cultural Marxists, woke socialists, gender theorists, homosexuals, Soros hirelings, liberals, feminists, commies and the like. Despite some local peculiarities and differences between the newly minted conservatives in different parts of the world, they have a lot in common.

The first is the populist appeal to defending the interests of the “little man.” In most cases, the label “little people” conceals white men who feel cheated and threatened because their privileged position in society, at work and in the family is supposedly on the chopping block in today’s world. The fact is that ruthless economic neoliberalism and globalization dictated by capital, without any social, economic or other safeguards, have economically, socially and politically marginalized a large part of the middle and lower-middle classes in many countries, and an important part of that population is, of course, precisely these angry white men. In the populist paradigm, human rights are an instrument used to hand out undeserved privileges to disruptive, socially harmful and suspicious groups and individuals, at the expense and to the detriment of “ordinary” people. Through culture war, populism stokes and exploits popular anger to undermine democratic institutions and oversight mechanisms (courts, media, civil society). Tragically, in the end the victims of populism are both the stigmatized groups and the enraged masses who, following the populist’s score, hate everyone except the leader and rebel against everything except him. The latter are merely cannon fodder (in Putin’s case literally) for authoritarian ambitions of power and greed. When it no longer needs him, populism discards the “little man” like a used paper tissue. In the end, my dear little white men and all other ordinary people, it is not about us; it is only and exclusively about power.

The second common point of populist neoconservatives from the Kremlin to Mar-a-Lago is directing popular anger and prejudice above all against three groups: women—especially those who dare to demand equality—same-sex persons and migrants. Different regional contexts add others to the list of scapegoats, from Black people to Roma or Ukrainians, but the patterns of stoking hatred and exploiting anger for political purposes are the same everywhere.

In Slovenia, too, some are expressing concern that something is seriously wrong with the understanding of human rights in today’s world. A few days ago, a judge of the Constitutional Court lamented this. This is how he put his thoughts into words in a dissenting opinion on the decision by which the Constitutional Court rejected the request for a referendum on the amendment of the Family Code: “These are dangerous changes in the understanding of human rights, as a result of which they have become something entirely different and consequently are no longer capable of performing their basic task: detecting actual violations of human rights.”

To be fair, the dissenting opinion cannot be disputed in its entirety. In the very first paragraph, the judge correctly noted that his vote against the decision was “problematic, since, had I acted lege artis, I should have supported it. The National Assembly could not have acted otherwise than it did.” What reason he had to carry on after this observation is probably known only to himself. Lege artis, lege schmartis, perhaps. In the rest of his dissenting opinion, the judge strung together a whole series of thoughts touching on every single topic on the all-star list of neoconservative grievances and frustrations, and the evergreen populist cliché about the “mass violation of the rights of ‘ordinary people’” was not missing either.

Among the constitutional judge’s many penetrating observations, the one about the difference between a bus and marriage particularly caught my attention. He says: “The relationship between spouses represents the innermost core of the protection of privacy; it is hard to imagine a more intimate sphere of values. It would therefore be entirely mistaken here to object that advocating two separate marriages is some kind of continuation of the doctrine of Separate but equal on which segregation in the US was based. Riding public transport, where the magnificent revolt of Rosa Parks flared up, is the place where a person is least a private individual. The declaration of lifelong belonging between two persons through marriage lies at the completely opposite end of the right to the recognition of private values. And it is right that individuals should have the possibility of doing so within an institution they cherish intimately. And they no longer have that possibility. The uniformity of the institution has prevailed.”

So now you know. In rejecting the referendum, the Constitutional Court overlooked the legal principle of quod licet on the trolleybus, non licet at the wedding. If you are racking your brains over how the intimate feelings of a heterosexual bride or groom could be hurt if a same-sex couple also declares lifelong belonging through a uniform institution, the constitutional judge has an answer ready. It is a violation of the “right to separate oneself from others.” Apparently this is even “the second pillar of our tradition.” I must admit that in three decades of working professionally on human rights, I had never heard of this. I can assure you, cross my heart, that there is no article in the European Convention on Human Rights that would allow “an empowered individual who thinks and acts independently of what the majority thinks,” in the name of “separating oneself from others,” to deny and restrict those others’ right to equality. If the honorable constitutional judge will allow me a piece of advice, were I plowing such bold new legal ground, I would make a considerably greater effort to explain what was going through my head, so that no one would by chance badly misunderstand me when I mentioned a “right to separation.”

Finally, I would like to stress that, despite disagreeing with his reasoning, I am of course by no means lumping the honorable constitutional judge together with the Russian president. Although it is right that the judge should know with whom he shares his concern about the understanding of human rights in today’s world, these are very different things. Putin is a nationalist imperialist who has established a completely authoritarian regime at home and launched aggression against a neighboring country. The honorable judge has merely made a few howlers. As an individual he would be fully entitled to do so, but given his office he should not take it amiss if his reasoning raised many a legal eyebrow. When constitutional judges make howlers, “ordinary” people, and even more so “unordinary” ones, can end up bearing the consequences. I suspect the honorable judge realized this too in the end. He concluded his text with a lucid interval, saying that he does not wish to impose his “grumpy” opinion on anyone—and that, out of scientific rigor, he himself has some doubts about it. I give him credit for that. A dissenting opinion from one’s own dissenting opinion may seem a little confusing, but it does give hope that our empowered constitutional judge, “who thinks and acts independently of what the majority thinks,” will in future be prepared, even if through gritted teeth, to take the Constitution into account as well.