During the international law conference organized by the Mathias Corvinus Collegium on September 27, 2023, the speakers delved into various topics such as the evolution of the discourse around fundamental rights and the corresponding responsibilities, the concept of state sovereignty, and the critical examination of the essential role of subsidiarity. The conference served as a platform for the Constitutional Discourse team to address these issues with David TSE-CHIEN PAN individually.
David TSE-CHIEN PAN (BA Stanford University; PhD Columbia University) is Professor of German at the University of California, Irvine. His work engages deeply with European philosophical and literary traditions. A central idea in his scholarship involves how our values have an independent standing and cannot be reduced either to material conditions or to ideal claims.
You have served as a member of the Commission on Unalienable Rights. What is the mission of this organization?
Well, it was a temporary commission in the US State Department during the Trump administration. And the charge of the commission was to develop some principles to guide US foreign policy in the area of human rights. And so, it really was focused on establishing these principles for the State Department going forward to think about specifically US foreign policy. So, it really wasn’t meant to provide any kind of comprehensive overview of human rights, but really to focus on this aspect of US foreign policy.
Arguably in the past decades, in the international sphere, there is a growing number of human rights that are waiting to be enforced. Arguably, through the judiciary, one can enforce obligations on the states, and this seriously affects the sovereignty of the states. What do you think?
On the one hand, I think you’re right, there’s a kind of human rights vocabulary and perspective that create these judgments. But it’s not as if those human rights perspectives are really coming from the outside. It’s not as if a piece of international law, or a human rights organization is somehow arguing for this. It does seem to be coming from the perspective of the judges that’s been influenced by public opinion, to create these judgments.
Before we move on, could you please give me a USA-specific example in this regard?
Sure. There’s been some legal judgments giving protections to homeless people. And those protections have developed so that in certain areas of the country now, it’s almost impossible to take any action like state action or police action against homeless to move them from sidewalks and things like that because of these judgments in the courts—and no new law has been passed in this regard. Or maybe there are existing laws, but the courts have basically nullified those laws, so a particular city is not allowed to enforce these.
So, getting back to your previous answer, do you think that it is the society where this strange interplay between sovereignty and law happens, right?
Yes. Because what’s going on is this change in interpretation that affects these legal judgments.
But where does that change of interpretation come from?
That seems to be a kind of cultural, political phenomenon. And you can’t exclude that because in my thinking, that’s the foundation for law. Because law comes out of these interpretations. And those interpretations are sort of these cultural political events. So, clearly, in the United States a particular judgment can easily become divisive. There’s a good chance that an appeals court makes a judgment, and the politically divisive case proceeds to the Supreme Court where it concludes with a different outcome. But you have to be aware that even the Supreme Court justices are appointed politically. It’s a complicated process, but I think at the foundation, the whole issue is political.
Let’s seek for the reason behind that. Do you think that it has something to do with some realignment between the classical branches of power and media—as the most relevant interpretator of political will—coming from the ‘outside’, is constantly growing over the classical branches? I’m asking this because you said that maybe it’s all about politics.
I think that that’s in some sense always been the case. There’s lots of ways in which media has changed in the last few decades. But the influence of the media on politics and law has gone on for a long time. Certainly, as long as the United States has existed, which is admittedly not that long. But things like newspapers have always had this influence. This political or cultural process, or as we might call, the changing character of the people: that’s really what’s at stake and the media will always reflect these conflicts.
Let’s move forward from the other shore of the Atlantic Ocean to here, Europe and talk about this phenomenon in the European Union where the judicial activism together with the bureaucratic will—let’s call them ‘top’—are constantly challenging the identity of the ‘down’. Ironically, the ‘top’ is a non-elected bureaucratic body, and the ‘down’ are the actual member states. Are you familiar with this? If yes, how would you comment on this?
I think what’s been happening in Europe, is that you do have a kind of administrative class that has been pushing for more federalist unification in Europe and that’s influenced judicial decisions in a way that’s been really ultimately not very democratic. And that’s then led to these, I guess, populist revolts within the particular nation states. And so, you do have all over Europe really these populist parties who see what’s happening. You see that they’ve essentially been disenfranchised by this whole bureaucratic apparatus and are trying to rebel against that. But from the point of view of the administrative bureaucracy, they see it as fascism, or they see it as racism, or they see it as sort of these extreme political positions that they want to suppress even more.
Vicious cycle, isn’t it…
Sure, because the expansion of the bureaucratic administration leads to this populist opposition, which then leads that bureaucratic administration to want to suppress that opposition even more. And then, of course, that opposition sees that and then it grows, right? Because people see what’s going on. And there’s hardly any chance for compromise.
Why do you think that?
Because people talk about this different way of looking at class dynamic, not between rich and poor but really between managerial bureaucracy versus the people.
Same thing happens in the US, am I right?
Yes, it’s going on in the US too. Certainly, Trump was really the one who mobilized these kind of populist masses. And there’s the same issue where the managerial classes are just horrified, and don’t know what to do except to suppress it. And then obviously when they try and suppress it, it just makes it worse. But I mean, the solution really would be to somehow reorganize the state of the United States. What we’re seeing now is the result of the development of the welfare state from starting the 1960s, especially in the United States, to create a very, a large and growing bureaucracy that has reinforced the managerial attitude amongst the educated classes and a feeling of disempowerment from the people who are not in those classes. But in the meantime, just think about it: 60 per cent of American people own stock. So, they’re the owners, but they have almost no power.
Because the people that have the power are the executives…
Sure. The president, the vice president, they’re getting these huge salaries and they’re in control. They’re the ones that really control these corporations and not the owners.
What do you think, what would be the solution?
I think the solution to that would be to somehow reduce the welfare state and reduce the kind of administrative bureaucracy and maybe initiate some reforms in corporate governments too that would probably shift more power toward shareholders rather than the managers. But rest assured, in the European Union it’s even more complicated because you’ve got.
Yeah. But if use your metaphor and we look at the European Union as a private company, the member states are meant to be the shareholders. I mean currently there are two approaches: one is federalist approach, and one is the approach based on the theory of a Union composed of sovereign nations states. And what you’ve just said is to give the power back to the member states.
But in the meantime, there are these infringement procedures, launched by the European Commission and all these procedures when the member states don’t act the way the Commission wants. These procedures end up at the European Court and if we look at the statistics, these procedures are won by the Commission at a very large amount. So, by every precedent, federalism scores another goal. It’s a very hard situation even though hard law says that sovereignty belongs with the member states and just some aspects of sovereignty and some aspects of power are performed jointly with the other member states of the Union. So, the legal background is completely on the contrary, what the European policy makers and judiciary dictates from the top. If you agree with this diagnose, how do you think this will play out?
You might be right. Actually, you’re in this quandary where you’ve got this whole apparatus now that’s just moving on its own logic. And you’ve got this populous revolt in many countries in Europe that either so far has been—in a sense—suppressed, or such suppression hasn’t expanded to the point that they’ve taken over national governments. Maybe in Italy, you could say that they have. But in France, in Germany, you’ve got this kind of populous sentiment that is interpreted from the bureaucratic classes as the sort of proto-fascism or something like that.
When it comes to suppression, there’s a belief that the more someone is oppressed, the stronger their resistance will become. What’s your guess on this on a European level?
It’s not clear what the end game is. It could be just disintegration. I don’t think it’s a good situation at this point. And there are no clear solutions, right?
Let’s try to find out the solutions together from a Hungarian point of view. What can a small country like this country do in such a situation? The rule of unanimity vote is planned to be discarded from the treaties and the principle of subsidiarity is also getting annihilated by the EU judiciary and the administration. But in the meantime, obviously, Hungary doesn’t want to exit the European Union, which sound rational the European Union must and can be reformed from within…
That’s a difficult question. Let’s scroll through the options. I see three options there. First, it is an option for Hungary to exit the European Union. I mean, Brexit could have been more successful if Great Britain had existing political economic policies that made more sense for Great Britain. Because part of the problem with Great Britain is Great Britain’s own policies. So, if—I mean, I’m not suggesting this but I’m just saying—Hungary were to exit the European Union and it did it in a way in which that it would maintain economic and political policies that really make sense for it, maybe that would be a possibility. The opposite option, I suppose then would be to stay within the European Union and essentially, surrender, and just do what needs to be done in order to stay in the European Union.
But obviously, it comes with lots of compromises…
Sure, it does. It depends on what you’re willing to compromise, what you’re not. And I guess the third option would be to ultimately define allies within the European Union for the ideas and policies that you would have in Hungary, but it would be the best chance you find allies where you can find them and develop them. And I think part of it is also developing a discourse, a long-term perspective with some ideas about what is Hungary really after. About What are the goals here. And how would those goals match up with goals of other European nations that seem to also have the same types of complaints but have not been able to articulate them so well and certainly have not been able to establish them within government structures or political parties.
Are you talking about only exploring and establishing political alliances, or is this something more?
I think there’s also an intellectual sphere of this game where you really have to develop the intellectual foundations for what’s happening, for what you’re trying to do. Because that’s what really going to help all over Europe since a great part of the problem is that the populist revolt is by definition anti-intellectual, right?
Could you provide further explanation regarding the point you made in your previous sentence?
I mean populism is anti-bureaucrat, therefore anti-university, anti-intellectual. And that leaves it in this precarious position on that theoretical intellectual level. And so, it really needs, a set of ideas that would make it more legitimate, but also make it make sense, right? And to think through the possibilities, to think through the exact contradictions and problems that exist now in order to somehow imagine these alternatives.
So, basically you are recommending a much more sophisticated approach compared to the hardliner sovereignism that informs for example the jurisdiction of the current Polish Constitutional Court, right?
Well, yes, I guess so. You know I’m not against ‘hardlining’. But to be more specific, what I’m against is the sort of ‘know-nothing’ hardliners, right? Things are have to be thought through, things need a kind of fundamental political philosophy, not just individual policies or political positions. I’m saying this because Europe has been even much more dominated by sort of welfare state thinking about the relationship between people and government than in the United States. And it’s had a horrible effect on the entire development. But there hasn’t really been much thinking about an alternative to that and what an alternative would look like. And that has to be developed. But the problem is that there’s not too many academics and intellectuals that are willing to think this through.
How would you label the current foreign policy of Hungary? Is it informed by a ‘know-nothing’, or a benevolent hardliner approach when it comes to endorsing sovereignty?
I’m hopeful with Hungary. I think, your country can definitely build bridges. I’m very impressed with the intellectual activity in Budapest, and it’s good, because you have to start this where you are. Then, it has to know where to look, and there’s certainly places to look in other European countries. You have to think through the way to reach different compromises within the country that support your goals in a productive way. And if you can do that, then maybe you can get somewhere in influencing other member states in the European Union.
Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.