Hungarian Helsinki Committee
© Hungarian Helsinki Committee
From the 1960s on, a great deal of politics became the politics of rights in the Western world. In East Central Europe, jumping on the bandwagon in 1989, the politics of rights was turbo-boosted by liberal democratic transformation and EU integration. Today, the illiberal politics of rights seems to be a mirror image of its liberal predecessor.
Rights are a double-edged sword. They can promote subversion and integration alike; they can emancipate but also suppress. We should differentiate between the politics of rights as a legal-political regime and the politics of rights as a resistance strategy. They have much in common, but they have usually stood in opposition to each other.
The important prelude to the “human rights revolution” in communist East Central Europe in 1989 was the dissident politics of rights in the 1970s and 1980s. The mythology of the victorious liberal narrative described the process as a gradual but inevitable victory of human rights (with civic and political rights standing at the center) over unlawful communist dictatorships that did not heed human rights beyond lip service. Yet, recent historical research shows that dissidents and late communist dictatorships each had their politics of rights: one served subversion, the other social integration. In other words, dissident legalistic resistance would not work unless the preconditions for it were created by the gradual constitutionalization of dictatorship.
After 1989, the dissident politics of human rights was transformed—with the help of Western constitutional doctrine—into a legal-political regime and a technique of governance with human rights backed by a powerful judiciary at its core. In the dialectic of history, it was probably inevitable that the illiberal politics of rights then emerged as an effective form of resistance to the liberal iteration. However, the current illiberal politics of rights has a distinctive character and status quite different from its liberal model.
If “illiberal rights” seem oxymoronic, the illiberal politics of rights is a familiar historical phenomenon. A reaction to liberal and progressive success, it is not a blanket refusal of the politics of rights but a skilful reformulation of the language of rights. In a time of culture wars, it is a resistance strategy par excellence. “Human-rightism” is portrayed as synonymous with liberal elitism and—similar to “gender ideology,” “juristocracy,” and other alleged liberal tricks for circumventing the will of the majority—criticized as fundamentally flawed and undemocratic. National conservatives claim that they are the true defenders of human rights, not those of cosmopolitan elites or culturally aggressive minorities. They defend the human rights of families, the religious and other rights of the majority, and its right to national self-determination. The national conservative reconfiguration of the human rights discourse has a particular gendered and biopolitical aspect. Conferences on demography and the traditional family are platforms for conspicuously downgrading women’s rights, sexual minorities’ rights, and gender equality in favor of the rights and normative patterns of traditional heterosexual families.
These reframings are in many ways inspired and braced by successful transnational conservative activism and alliances (for example, anti-abortion campaigns). Yet they also draw on a considerable cultural and intellectual repertoire of the anti-communist opposition of the 1980s. For instance, Christian human rights played an enormously important role in dissent everywhere, but particularly in Poland. There they continued to be at the center of political life after 1989, with anti-abortion campaigning and the Roman Catholic Church’s robust intervention in politics throughout the transition period. However, a distinctive‚ illiberal politics of rights’ only fully takes shape during culture wars. It is then that several areas—particularly those related to identity politics, gender, LGBTQ+ and women’s rights—become the focus of political conflict between liberal and illiberal rights discourses.
And yet, the politics of rights at the incipient time of an illiberal regime, such as in Hungary after 2010 and Poland after 2015, is not a mirror image of the liberal politics of rights of the 1990s. The trouble with illiberal human rights politics is similar to the difficulties noted with the notion of illiberal constitutionalism. There is hardly an illiberal constitutional blueprint or playbook; there are mostly illiberal practices hijacking and building on the liberal constitutionalist design. Similarly, beyond an ideological mobilization and resistance strategy, the illiberal politics of rights is a hotchpotch of measures and practices that does not amount to a self-contained human rights legal-political regime—at least not at the moment.
From the point of view of relatively functioning liberal democracies, such as earlier in Hungary and Poland, there is an apparent deterioration. The scope of human rights has been narrowed, while inequality, exclusion, and intolerance increase alongside the capture of institutions, such as the highest courts or the ombudsman. The gradual dismantling of institutional guarantees undermines respect for human rights in various areas, such as freedom of assembly, freedom of speech, academic freedom, certain economic freedoms, and even privacy rights. This is accompanied by the reorientation of human rights doctrine in the direction of a communitarian and neopatriarchal vision of the state, nation, and family, where the rights of the majority community are prioritized over the rights of individuals, including vulnerable people (such as migrants or the disabled) and minority groups.
However, in contrast to countries such as Russia or Turkey, there are no gross violations of human rights in Hungary and Poland, which also have significantly higher levels of compliance with international and European human rights regimes. The fact that the countries of East Central Europe are anchored in the European human rights and legal system—embodied by the Council of Europe, the European Court of Human Rights, and the Court of Justice of the EU—is making illiberal takeover more complicated and gives some leverage to the defenders of the liberal iteration of human rights.
What, then, is the liberal politics of rights today? It turns into the politics of resistance, yet it does not resemble the dissident one from before 1989, although sometimes it may feel so. At the national level, what is at stake is constitutional politics, namely the defense of the crumbling edifice of the rule of law based on liberal human rights doctrine. Since the state of electoral democracy in these countries does not, so far, exclude the possibility of a change of political representation, as the October 2023 parliamentary elections in Poland showed, the success of the liberal politics of rights is largely dependent on the results of political competition.
At the level of human rights activism, things are quite different. Activists fighting democratic backsliding today face dilemmas and challenges similar to the ones faced by dissidents before, but often as if in reverse order. Many human rights NGOs are children of the 1990s and, thus, grandchildren of the dissident organizations. But they were born in liberal-democratic times or adapted to them. Their professional “NGO-ist” ways and means do not work well in the rising illiberal regimes. Most of the dissident human rights politics consisted of monitoring and publicly exposing human rights abuses. Their main power was the power of opinion, which dissidents developed based on the elaboration of the rising international human rights discourse. Today’s NGOs, widely harassed as “foreign agents,” use the language of human rights as well as the international human rights framework, but their power is mainly the power of litigation, based on lawyering. Their power of opinion is weak and less cultivated in comparison to that of their dissident predecessors.
Michal Kopeček, is head of the Department of Ideas and Concepts at the Institute of Contemporary History, Czech Academy of Sciences, Prague. He was a fellow at the IWM in 2024.
