- Cynical International Law
The Edge of Enlightenment
The EU’s struggle with post-fascist cynicism
Recently, Harvard professor Steven Pinker’s book “Enlightenment Now: The Case for Reason, Science, Humanism, and Progress”, which explores the effect of the Enlightenment on contemporary societies worldwide and also anti-Enlightenment movements in the West, became an international bestseller. Applying his findings about the age-old symbiotic relationship between certain elements of “Western civilization” and (post-) Fascism to certain developments both at the EU level and in individual member states, we can an uncover alarming rise in legal cynicism being applied to deal with these scenarios.
Pinker’s book follows Isaiah Berlin and Zeev Sternhell’s argument concerning the existence of a Western anti-Enlightenment tradition. This tradition contains diverse elements like tribalism, identity politics, the supremacy and excellence of a nation, intolerance towards other nations as well as racism and xenophobia. It bases itself on Social Darwinism, denies universal values, and claims that nations and religions are in a constant struggle with each other. It uses emotional manipulation (romanticized irrationality) and fake news to attack and effectively abolish pluralism, also at the institutional level. As it is highly authoritarian, it tries to force its values upon the society. As a result of its revival, the change of values in Western societies is so elementary that Pippa Norris and Ronald Inglehart talk about a cultural backlash in the Western world. Moreover, Inglehart claims that “the world is experiencing the most severe democratic setback since the rise of fascism in the 1930s”. Most anti-Enlightenment political streams are post-Fascist (it is wrong to call them populists). They are not neo-Fascists because they do not radicalize the anti-Enlightenment in the same way as historical Fascism, but they are very similar.
From this perspective, the EU’s situation is very interesting, as we have recently witnessed strong disintegrative tendencies. We faced the collapse of EU asylum law and politicians started to talk about asylum seekers as one dangerous group of people. Single market laws are breached en masse, and in Hungary, a group of new oligarchs (the new nobility) have gained extreme wealth – partly as a result of EU funding flowing to government-friendly businessmen. Brexit also serves as a great example of the rise of the anti-Enlightenment tradition: tribalism mixed with xenophobia, economic fears and misinformation led to a wrong decision. Paul Beaumont, Danny Dorling and Sally Tomlinson are all right when they claim Brexit is caused by a post-colonial delusion. I consider this delusion a form of the anti-Enlightenment tradition. Finally, there is a crisis surrounding human rights in the EU: Daniel Kelemen calls this Europe’s other democratic deficit.
What is very interesting is that present crises stem mostly from national (political) cultures and the presence of the anti-Enlightenment tradition in the EU member states. Moreover, even though the EU was originally funded on the principles of the Enlightenment, the acquis always contained adverse elements as well. For example the democratic deficit Føllesdal and Hix wrote about still exists, leading to technocratic, elite-centred (post-feudal) law-making. The European Citizens Initiative is not working properly. In most cases, EU citizens cannot ask the CJEU for the annulment of legislation directly – one could ask, where is the “constitutional” control in this system? Art. 51 of the Charter of Fundamental Rights prohibits the widespread application of the Charter, showing that member states oppose Europe-wide application of human rights. The Euro-crisis management also contained questionable elements: as Christian Kreuder-Sonnen put it, “legal studies find that a number of emergency measures were taken on an extra‐legal basis and through quasi‐autocratic procedures”. These problems are legal time-bombs which can explode and back-fire at any time. At the domestic level, the anti-Enlightenment tradition completely reshapes the constitutional framework of a country: it eradicates checks and balances, occupies Constitutional Courts, limits judicial power, manipulates elections, spreads propaganda and tries to secure its power. It also attacks academic freedom (see my articles here and here). It produces an inflation of law in the governmental systems it occupies: law becomes a tool of acquiring and maintaining power. Rule-of-law is changed to rule-through-law.
There are two kinds of cynicisms associated with this problem. Firstly, the anti-Enlightenment tradition cannot express its fundaments openly. For example, in the case of refugee law, it cannot openly propagate that it finds refugees to be subpar humans. It cannot state it wants to establish a system of oligarchs supporting its governance. It cannot claim that it disrespects human rights because these are limiting its powers. As a result, it uses a more coded language to not frighten away less radical voters. Secondly, we see cynicism from external actors as well. For example, when they meet the representatives of the anti-Enlightenment, several leaders of European countries and EU institutions either remain silent or use policies not conforming with Enlightened rationality. The perfect example is the European Peoples Party’s moral failure to give answers to the changes in Poland and Hungary. While Hungary became an electoral autocracy, Commission President Jean-Claude Juncker only made some ill-mannered jokes about Viktor Orbán as dictator, and there is a high chance the Art. 7 procedure against Poland and Hungary will also be blocked by member states. German Chancellor Angela Merkel recently expressed her opinion that “when talking about the objective of the Cohesion Funds and the Structural Funds, it has to be said that they are set up to increase convergence within the European Union. Looking at the economic growth rate of Hungary, it is obvious that Hungary has used those funds well to benefit its people”. All this, when billions of Euros stemming from the EU are flowing into the oligarchic system in the country (mostly to construction companies, no wonder Bálint Magyar calls this the post-communist mafia state). Other examples could be the EU-Turkey refugee deal, which went against international law and EU law rules, and also the Europe-wide change of refugee law (for German activity regarding this see this, this and this, for Italian activities see this article, for inhuman Hungarian actions and policies see our book on this topic). What this second type of cynicism does not understand is that in the long term, this attitude can backfire: as Cas Mudde pointed out, the EPP is more or less dominated by parties which either use far-right rhetoric or cooperate with the far-right. The same can happen at the national level, where post-Fascist forces can take over the centre.
The good news is that the balance between Enlightenment and anti-Enlightenment can be affected by proper policies. Recognizing, defending and educating Enlightenment values (including the social dimension of this question) can lead to better societies with just and humane conditions. Our values are under attack, and they must be defended, first at the grassroot level. The bad news is that the opposite is also true: propaganda boosting existing patterns of the anti-Enlightenment tradition can still re-shape countries and their legal systems in a couple of years. Unfortunately, it is nearly impossible to return to a pluralist democracy from a closed state in a democratic way. This should be a warning for Western scholars: they should not downplay the dangers these forces represent.
Tamas Dezso Ziegler is an Associate Professor at Eötvös Loránd University (ELTE) in Budapest. He teaches EU law, EU Politics and Policies, EU Competition Law, International Business and economic law, EU Migration and Refugee law, Fascism, populism and Democracy.
Cite as: Tamas Dezso Ziegler, “The Edge of Enlightenment”, Völkerrechtsblog, 4 September 2019, 10.17176/20190904-201228-0.