The dangers of relying on “values” in a legal context

Philosopher Ludwig Wittgenstein (Copyright): Drawing" by Christiaan Tonnis is licensed under CC BY-SA 2.0

By Dr. iur. Laura Melusine Baudenbacher, Managing Partner, Baudenbacher Law Ltd., Zurich

I.              Introduction

“Values” seem to have become an EU buzzword in a number of policy areas. From migration over sustainability to investment control, “European values” are being touted to justify geopolitical alliances and to shame certain nations for their supposed lack of respect for EU “values”, or they are being used as a tool to exclude investors from countries that allegedly do not share the same “values”.[1]

European Commission President Ursula von der Leyen has been particularly vocal about the importance of “European values”. Speaking at the last press conference before the summer break 2021, President von der Leyen opined:

“Last but not least, as Charles [sc: President of the European Council Charles Michel] said, we had an intense and very frank discussion about values. This discussion was needed. It was a factual discussion and it was a very personal and emotional discussion at the same time. And it was a personal and emotional discussion, because it is about people’s lives and it is about their dignity and their feelings, and their identity, and it is also about what we believe in, in our European Union. Our Treaties are very clear on our values. They are enshrined in the Article 2 of our European Treaty. That is the respect for human rights, the equality, the human dignity, freedom, non-discrimination and others. These are our foundation. And we will live up to these values.”[2]

President von der Leyen sees these “European values” at stake in several areas: from Hungarian legislation banning the depiction or promotion of homosexuality and gender change among minors, over Polish laws on judicial reorganisation, to citizenship by investment programmes in Malta and Cyprus.[3]

With “European values” popping up in numerous legal areas, an analysis of this term is becoming increasingly relevant. Hereunder, I will attempt to establish a definition of “values”, analyse whether genuine “European values” exist, assess whether policy decisions can credibly be justified based on “common values”, and evaluate the risks involved with introducing such an element into EU law.

II.           What are “Values”?

The question that first comes to mind is how to define “values” and whether a standard definition is at all possible.

The philosopher Ludwig Wittgenstein (picture) attempted to assess whether “absolute values” existed at all. His conclusion is sobering. He considered any sentence “nonsense” that purported to state something beyond the mere arrangement of things in the world, for example, by labelling something as “good” or “bad”. According to Wittgenstein, a value cannot be expressed; at most, it can be won by silence and could thus perhaps appear in reactions or deeds informed by a certain attitude, but never in words.[4]

How widely values vary is visible from social studies on cultural differences of child-rearing. Every society has what it believes to be the “correct” way of raising a child according to the “right values”, something University of Connecticut human development professor Sara Harkness calls “parental ethnotheories”. In an international study, Harkness and her colleagues discovered that American parents encourage their children to be inquisitive and ask question because they value intelligence and “book learning”. Italian parents also encourage children to ask questions, but less because they see this as a sign of intelligence and more because they believe it shows that children are even-tempered and have socio-emotional competence. Dutch parents, for their part, put more weight on long attention spans and “regularity,” or routine and rest. Asking questions is, thus, considered a negative attribute because it indicates that a child is too dependent. Spanish parents meanwhile seem to value “character” and “sociality”, while Swedish parents are more focused on “security” and “happiness”.[5]

From an entirely subjective perspective, I have attempted (and failed) to establish a common set of “values” within my own family and friends. The adherence to “values” and their weighting seems to be a highly personal and emotional issue. Values seem to not only differ between nations, religions, or language groups, but even within couples and between parents and children.

III.        Do Genuine “European” or “Western” Values Exist?

Notwithstanding the above thoughts, the question remains whether one can still argue that genuine “European” or “Western values” exist. EU Commission President von der Leyen has in the past referenced Article 2 TEU as a source of such “European values”. This article sets out the following:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

These “values” sound formidable and there is no doubt that most individuals and institutions in European countries would purport to respect them. Another question is whether nations outside of Europe would agree with this self-assessment. A continent that colonized half the planet with unprecedented brutality and fought two World Wars in the last 100 plus years may perhaps be met with a certain degree of cynicism when claiming to suddenly have a superior code of “values”.

Moreover, can one truly claim that the “values” listed in Article 2 TEU are exclusive to EU Member States or can even be alleged to have their origin within the EU? I would respectfully argue otherwise. Many European nations have less than 100 years of experience with free and democratic societies. And the concepts of equality, human dignity, freedom, democracy, or the rule of law have existed for much longer. As the World Economic Forum notes, the oldest five democracies in order of their age are the United States of America, Switzerland, New Zealand, Canada, and the United Kingdom—none of which are EU Member States.[6] While no doubt the vast majority of individuals in European nations embrace the principles enshrined in Article 2 TEU, it nevertheless seems a bit far-fetched to qualify them as genuine “European values”.

Political scientists Ronald Inglehart and Christian Welzel argue that two major dimensions of cross cultural “values” variations exist in the world:

  1. Traditional values versus secular-rational values;
  2. Survival values versus self-expression values.

Traditional values emphasize the importance of religion, parent-child ties, deference to authority, and traditional family values. People who embrace these values generally also reject divorce, abortion, euthanasia, and suicide. Such societies typically show high levels of national pride and a nationalistic outlook.

Secular-rational values, on the other hand, generally place less emphasis on religion, traditional family values, and authority, and see divorce, abortion, euthanasia, and suicide as relatively acceptable.

Survival values seem to weight economic and physical security higher, which is linked with a relatively ethnocentric outlook and low levels of trust and tolerance.

Self-expression values, finally, highlight the importance of gender equality, environmental protection, and tolerance of foreigners, gays and lesbians. Such societies show rising demands for participation in decision-making in economic and political life.[7]

Based on the above, Inglehart and Welzel developed a cultural map of the world:

According to the authors, there are no common “European values” or even “Western values” system. Rather, the fault lines predominantly seem to run along religious borders, with English speaking nations within and outside of Europe constituting a distinct group.

IV.      Consistency in the Evaluation of Nations with “Common Values”?

While a definition of “European” or “Western values” seems hard to come by, they have in the past nevertheless been relied on in far-reaching decisions. Often “European” or “Western values” have been invoked to justify geopolitical alliances: nations or civilisations that share these “values” should be engaged (and traded) with, while cooperation with nations lacking such values should be avoided.

Within the EU, nations that have recently been alleged to lack “European values” include Poland, Hungary, Malta, and Cyprus. On the other hand, countries outside the EU forming part of the club of nations who share “European values” include the USA, UK, Australia, and Switzerland (to name a few), while Russia, China, and predominantly Muslim countries are often considered to lack “European values”.

For most Europeans, this approach seems logical at first glance: while each country has its individual issues, the US, UK, Australia, and Switzerland no doubt constitute formidable democracies founded on principles such as rule of law, equality, and freedom that share similar “values” with most EU Member States. But a closer glance at individual countries’ policies may challenge whether the “values” listed in Art. 2 TEU are respected throughout the board in these nations.

It is a core belief within Europe (that has been enshrined in the European Convention of Human Rights and, more recently, in the EU Charter of Fundamental Rights) that human life is untouchable—even by governments. The death penalty is considered a violation of this maxim. It is moreover undoubtable that forced child marriage constitutes an egregious violation of children’s most fundamental rights. The EU—as many other so called “Western” nations—regularly calls out countries who uphold such practices. Interestingly, reference is rarely made to the continued practice in certain US states of executing people, including minors and persons with mental disability. Perhaps more unknown to the broader public is the US approach to child marriage. An April 2021 study[8] concluded that child marriage is legal in 44 out of 50 US federal states. 10 states do not even specify any minimum age for marriage.[9] It has been estimated that between 2000 and 2018, about 300’000 children with a few as young as 10 were married in the US. Unsurprisingly, most are girls (86%).

The list of countries considered for decades to be sharing “European values” can be continued. The author’s own countries of origin—Germany and Switzerland—hardly boast an excellent track record on fundamental rights of certain groups.

Much has been written about the delay of granting women the right to vote in Switzerland. When I started my first year of school in St. Gallen, Switzerland, the neighbouring half canton Appenzell Innerrhoden continued to deny women the right to vote. Perhaps less known outside the country is the practice of “Verdingung” which existed up until the 1970s in certain parts of Switzerland. Under this government operated child slavery scheme, children were forcibly removed from their families often due to poverty or moral reasons, e.g., unmarried mother, Yenish origin, etc. They were assigned to farms throughout the country where they were exploited as cheap labour and often suffered horrific mental and physical (including sexual) abuse. Where the girls fell pregnant from rape by their masters, their children were again forcibly removed and assigned to other farms as cheap labour. To this day, the nation struggles with a historical appraisal, and restitution to the victims has been limited.[10]

Germany, for its part, until 1969, continued to enforce without mercy the national-socialist version of § 175 Criminal Code which criminalised every aspect of male homosexuality. In 1963, religious philosopher and historian Hans-Joachim Schoeps observed: “For the homosexuals, the Third Reich is not yet over”.[11] While the practice was softened after 1969, the law remained in place and was enforced until 1994. Up until the 1980s many authorities banned homosexual emancipation groups from setting up information stands in city centres. They could rely on a ruling by the Münster Higher Administrative Court of 1976 which had confirmed such a ban on the basis that “young people must be protected from contact with homosexuals, at any rate on the public street, and thereby possible […] seduction”.[12] As has been rightly noted by the German Association of Gay and Lesbians, the identical reasoning is employed by governments nowadays to justify persecution of homosexuals—governments that have been found lacking “European values”.[13]

Lastly, the European continent’s failure since 2015 to minimise the death toll and immense human suffering in the context of migratory movements to Europe should be mentioned—something that will undoubtedly become more acute considering failed Western politics in Afghanistan.

In no way do I intend to stigmatise the USA, which I consider not only to constitute one of the most impressive nations in the world, but to which I owe a lot of gratitude for welcoming me and my family. The above considerations also in no way aim at discrediting Germany or Switzerland which are both formidable countries and to which I have an equally close bond.

Rather, these examples hopefully highlight the arbitrariness and perhaps also insincerity in considering certain countries to form part of a higher moral “values” club while they continue to uphold laws and practices that are hard to align with these “values”. Countless “friendly” nations that allegedly share “European values” have laws or government practices that violate fundamental ECHR and Charter rights. Against this backdrop, it is understandable that nations who are told they lack “European values” bristle at this accusation.

V.         The Dangers of Relying on “Values” in a Legal Context

“Values” as a general legal notion do not exist. They have no definition and, frankly, cannot have one. Values are highly personal. They change over time, they vary between cultures and nations, and they may differ between entire generations as the example of the 1968 mass movement shows.

One of the cornerstones of the European Union is that it is a community grounded in the rule of law. German legal philosopher and politician Gustav Radbruch regarded legal certainty and justice as the fundamental pillars of law.[14] Legal certainty also forms a general principle of European law and has been recognised by the European Court of Justice, the EFTA Court, and the European Court of Human Rights. It constitutes a fundamental principle in European national legal systems.[15]

As University of Baltimore professor James R. Maxeiner has noted, “legal certainty ‘requires that law is sufficiently precise to allow the person—if necessary, with appropriate advice—to foresee, to a degree, what is reasonable given the circumstances, the consequences which a given action may entail.

It means that:

  • laws and decisions must be made public;
  • laws and decisions must be definite and clear;
  • decisions of courts must be binding;
  • limits on retroactivity of laws and decisions must be imposed; and
  • legitimate expectations must be protected.”[16]

Introducing “values” as a legal term not only runs counter to the fundamental principle of legal certainty. Giving the executive the power to legislate or act on “values” potentially allows less trustworthy institutions than the European Commission to first unilaterally and arbitrarily define what these “values” are and then use them to target groups that are disliked. The deal is sealed (so to speak) when an executive succeeds in convincing the courts to declare such “values” as legally binding standards. A vivid example is how for centuries so called “Christian values” have been used as a justification to persecute homosexuality.

VI.      Conclusion

The European Commission enjoys an excellent reputation as a body that adheres to the rule of law. It has also proven itself one of the strongest enforcers of this in Europe.

However, in recent years, this position seems to have been softened to allow for a more political approach. It is understandable that the deceleration of European integration has caused frustration in Brussels, and that the Commission wishes to expedite integration in areas where EU Member States are struggling to find common ground.

However, the temptation of introducing an uncertain concept such as “European values” into European law to curb back developments in certain Member States that are seen as undesirable should be resisted. It jeopardises the very essence of what the EU stands for: a community of rule of law. Regardless of how one feels about the Commission’s approach to the situation of Hungary and Poland, one shouldn’t forget the grave dangers of granting any government or ruling entity far-reaching powers based on vague legal concepts. While today “European values” may be invoked for causes which the majority considers to be noble, history teaches that there is no guarantee this will not be abused in the future.


[1]            See, for example, the UK’s Foreign Affairs Committee report “Sovereignty for sale: the FCDO’s role in protecting strategic British assets” of 14 July 2021, available here. The report concludes that the UK “Government should cooperate on FDI screening with other countries with whom we share values and strategic objectives” and recommends that “the FCDO seeks to play a leading role in bringing together countries and partners from overseas and in building alliances to make sure investment vehicles in one country aren’t used as a Trojan horse in others.” (emphasis added).

[2]           Opening remarks by President von der Leyen at the joint press conference with President Michel and Prime Minister Costa following the meeting of the European Council of 25 June 2021, available here.

[3]           See, for example, State of the Union Address by President von der Leyen at the European Parliament Plenary of 16 September 2020, available here.

[4]           Tractatus 7, quote available in German here.

[5]           For a detailed overview, see Nicholas Day, No Big Deal, but This Researcher’s Theory Explains Everything About How Americans Parent, article of 10 April 2013, available here.

[6]           World Economic Forum, Mapped: The world’s oldest democracies, available here. The UK was an EU Member State when Article 2 TEU was enacted but the country left the EU at the end of 2020.

[7]           See website of World Values Survey, available here.

[8]           See Unchained at Last, The United States’ Child Marriage Problem, available here.

[9]           California, Massachusetts, Michigan, Mississippi, New Mexico, Oklahoma, Rhode Island, Washington, West Virginia, and Wyoming.

[10]          See, Swiss grapple with history of forced child labor, article of 24 November 2011, available here.

[11]           Hans-Joachim Schoeps, Überlegungen zum Problem der Homosexualität, in: Der homosexuelle Nächste. Ein Symposion. Hamburg 1963, pp. 74-114, 86.

[12]          OVG Münster of 15 March 1976 (Az IX A 1375/75).

[13]          Lesben und Schwulenverband, Verfolgung von Homosexuellen in Deutschland – Geschichte eines Schandparagraphen, available here.

[14]          James R. Maxeiner, Some Realism About Legal Certainty in the Globalization of the Rule of Law, Houston Journal of International Law, Vol. 31, No. 1, pp. 27-46, 2008, 30 et seq.

[15]          Ibid, 31 et seq.

[16]          Ibid, 32.



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