Hungary – The Hungarian law on paedophilia and the protection of children concerning sexuality, which was passed by the unicameral Országház (Hungarian parliament) on 15 June, has been written about extensively and has caused heated debate. There have been countless reactions from members of the European Parliament, heads and members of governments, sports associations and public figures. Incredible as it may seem, even as a letter co-signed by 18 EU countries condemned the Hungarian law and called on the European Commission to intervene, including by referring it to the EU Court of Justice, no one seems to have bothered to reflect on the content of the law itself, or even on its spirit.
What makes a law is the spirit that guides it.
The spirit of the law
Hungarian lawmakers, within the framework of their competence and democratic sovereignty, have sought to clarify the state’s role in matters relating to the sexuality of minors: the state must be responsible and active when it comes to protecting minors from sexual violence (most of the new law develops an anti-paedophilia arsenal); and it must be the guarantor and protector of parental freedom with regard to sex education, and in particular the way in which the more sensitive questions of homosexuality, “gender” or pornography, to name but a few, are addressed.
Thus, this law does not deal with homosexuals as persons, nor with their rights (which are protected by the Hungarian Basic Law), but rather with homosexuality, the understanding of which, in the opinion of the democratically elected legislators, should remain a prerogative (mainly) of parents and not of civil society or the state.
This is ultimately a statement of responsibility on a sensitive issue. The term “sensitive” is indeed an apt one here, as no scientific study can determine with certainty either the age at which it is appropriate to talk about these matters or the best way to do it. Progressives and conservatives can both find defensible arguments, but, in the light of how sensitive these issues are, it is parental freedom that is being defended here. The aim of the new law is to protect parental freedom in a context where it is perceived to be under threat. Let us consider, for example, the organizations that intervene in schools, on television, and in the public sphere, to make children aware of the fact that it is possible to “choose one’s sex”. The problem lies mainly in the fact that this is done without parental consent, and therefore potentially against the way they would have wanted to address the issue.
The critics’ intellectual gap
The Hungarian law makes a societal choice, where what is at stake is not the rights of any minority, but rather the issue of who should be responsible for children’s education.
As in any ideological dispute, one may disagree. However, the mistake made by the critics of this law is to debate not on the real issue, but on a different one.
The real debate should focus on the issue of the responsibility of the state. By contrast, what we have been witnessing is a denunciation of a law on the basis of an alleged breach of the EU’s values.
There are two major problems here:
First of all, as we have already said, this argument is off-topic. The Hungarian law is not about the rights of homosexuals, but about sex education, and it does not discriminate or judge people on the basis of their sexuality.
Second, critics have failed to define the “values” that this law is supposed to violate, and they have yet to explain in what ways such violation occurs.
The accusations made are very serious but imprecise, and it is unclear exactly where Hungary’s fault lies.
Article 14(3) of the EU Charter of Fundamental Rights states: “The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.” There are two points in this article that show why the Hungarian law is actually in line with EU values: the right of parents to provide education and teaching, and the fact that this right should be implemented by national laws. One of the EU values defended here is the full sovereignty of individual states in this matter. This seems to contradict the approach taken by the 18 governments, who have condemned a law passed in a field where individual member states have retained their sovereignty under the European Treaties.
There is therefore a lack of honesty both in the process of judging the situation and in the criticism made.
Indeed, no translation of the text of the new Hungarian law is directly accessible. The only “summary” of the situation comes from the caricatural description made by the Hungarian opposition and by the lobbies which have raised the alarm. There was clearly no work done to understand (or even read) the law in question, nor was there any substantive communication with the authors of the law. The judgmental approach has bypassed the stage of getting to know the subject matter.
And the criticism, as we have shown, focuses on an off-topic issue, apparently with the aim – to summarize one of Matthieu Bock-Côté’s theses (developed in his essay “The Empire of Political Correctness”) – of disqualifying a position by preventing it from even entering the arena of debate, without even having to discuss it, as it does not fit the liberal-progressive agenda.
Prerequisites for a debate on the future of the EU
This Hungarian episode reveals the holes in the dominant thinking about the European project. In conclusion, here are a few possible solutions to the lack of intellectual honesty that prevents constructive debate. Let us address two areas that seem to be priorities.
First of all, in the light of the debates on the future of the European Union, it is necessary, as a priority, to clarify what is the scope of sovereignty of EU member states today. More than that, it should even be defined what is meant by sovereignty. Is it a concept that focuses on the decision-making process, or on the impacts of decisions made and reactions to them? Or maybe both? Universities, think tanks, political study centres, parties, and political actors could engage in such definitional work away from the ideological struggle. Without going as far – at this stage – as a debate of ideas, the focus should be first on clarifying what is in the EU treaties today, since those treaties are what European integration is based on.
Secondly, and in the same vein, let us propose an exercise involving the mapping of European “values”, starting with an objective list of what is currently included in the treaties. One could at most imagine working on a list of concrete elements, but without going further at first. This would allow a range of issues to be declared out of scope or within scope, and would prevent the misuse of the term “value”. In this exercise, as soon as there is a disagreement of interpretation, we should hold back without making a judgment, and acknowledge that we are then falling into political debate. The idea would be to compile a list of lowest common denominators so as to see what the “fundamental” values really are.
These two clarification exercises are a prerequisite for discovering the basis on which the European future must be built, through a return to open discussion based on arguments, not on emotions, egos and ideological disqualifications.